Weinbeck v. Dahms

Stockbridge, J., delivered the opinion of the Court. This is an action of ejectment brought by the appellee claiming as a tenant in common to the extent of a one-third interest in a lot on Dillon street. ⁴⁶⁵ The supposed right of the plaintiff, appellee here, arises out of a deed executed on the 21st of April, 1913, by Anna Dahms, of the property in question on Dillon street. The granting’ clause of the deed was in the following language: “Witnesseth, That in consideration of the sum of five dollars and other good and valuable considerations, the said Anna Dahms doth grant and convey unto Gertrude C. Dahms, Irwin E. Dahms and Anna Dahins, minors (reserving, however, the absolute right to grant, convey, sell, mortgage, limit or dispose of the herein described property, absolutely, during the term of my natural life, as if this deed had never been executed), their heirs and assigns in fee simple, all that lot of ground situate, lying and being in Baltimore County and described as follows The habendum clause of the deed follows exactly the language of the granting clause. On February 1st, 1916, the said Anna Dahms, who remarried, the name of her then husband being John Grosskopf, conveyed in fee simple to Joseph Weinbeck the same lot as that described in the deed of 1913 before referred to, and the present action is for the purpose of recovering from Weinbeck an undivided one-third interest by Gertrude O. Dahms, as tenant in common, as her interest in the property.

This claim is predicated upon the theory of a repugnancy in the deed of 1913, the contention being that the grant to Gertrude, Irwin and Anna gave each of them a vested interest in the property, and that the reservation in the grantor was in derogation of the fee simple interest, and therefore void. The case was tried before the Court below upon an agreed statement of facts, and the first five exceptions appearing in the record were upon offers of evidence, on the ground that the evidence so proposed to be offered was in contradiction of the written deed and, therefore, inadmissible. These objections were severally sustained by the trial Court, and the correctness of those ruling's will be discussed later. ⁴⁶⁶ The remaining bill o'f exceptions deals with the prayers, and it will be sufficient for their consideration to advert briefly to the rule of law properly applicable under a condition of facts such as the record discloses, and then pass to one or two special comments with regard to the. form of three of the prayers. At the outset, it is properto say that there can not be any dispute as to the proposition that where there is a repugnancy between the granting clause of a deed and the habendum, where an estate which has been granted in fee is sought to be cut down to a lesser estate, or limited by conditions, that such attempt will be rejected as void, being in derogation of the absolute estate previously granted.

The same rule also applies where there is a proviso in a deed which would operate in the same manner, and a large number of the cases cited in the argument and referred to in the briefs of counsel are of this class; but it is equally true that where a repugnancy does not so exist, or where there is an ambiguity, and the Court can ascertain the intent of the grantor by reference, not to one but to all parts of the deed, that intent will be given effect. The rule of law today is well and clearly stated in 8 R. C. L., pp. 1037-8 and 1046 : “Whatever may have been the earlier doctrine, it is now thoroughly settled that technical rules of construction are not favored, and must not be applied so as to defeat the intention. * * * In modern times the more sensible rule obtains, in all cases to ascertain and give effect to the intention of the party as gathered from the entire instrument, together with the surroundr ing circumstances, unless such intention is in conflict with some unbending canon of construction, or settled rule of property, or is repugnant to the terms of the grant. Furthermore, the primary or dominant intent must prevail over a secondary intent, where the two are inconsistent; wherefore, if two clauses are