Winter v. Gorsuch

Miller, J., delivered the opinion of the Court. In defining the office and effect of the habendum clause in a deed, Blackstone, in his Commentaries (Book 2, page 298,) after stating that it cannot totally contradict or be repugnant to the estate granted in the premises, puts an illustration of such repugnancy thus: “ If a grant be to one and his heirs in the premises, habendum to him for life, the habendum will be utterly void, for an estate of inheritance is vested in him before the habendum comes, and shall not afterwards be taken away by it,” and for this the authority of Lord Coke, found in the third resolution in Baldwin’s Case, 2 Rep., 23, and in Earl of Rutland’s Case, 8 Rep., 56, is cited. In the notes to Baldwin’s Case, found in Thomas’ edition of the Reports, other authorities sustaining the same position, are referred to, and it is there said: “This doctrine proceeds upon the principle that where there are two clauses in a deed repugnant to each other, the first shall prevail, Leicester vs. Biggs, 2 Taunt., 113 ; and every deed is expounded most strongly against the grantor and most for the advantage of the grantee, and therefore the grantee shall take by the premises if that be most beneficial for him and not by the habendum, and the grantor shall not be allowed by any subsequent part of the,deed to retract the gift, made in the premises : post, 8 Co., 54 b; 1 Inst., 299 a, and 2554.” More recently the same doctrine was affirmed in Goodtitle vs. Gibbs, 5 Barn. & Cress., 709. In that case the distinction as to the effect of the habendum in deeds in which the premises expressly mention an estate or interest, and in ¹⁸⁴ those in which the premises merely describe the tenements but do not mention any estate or interest, is noticed, and with respect to the former, Abbott, C. J., says: “ On the other hand, if an estate or interest be mentioned in the premises, the intention of the parties is shown, and the deed may be effectual without any habendum,, and if an habendum follow which is repugnant to the premises, or contrary to the rules of law and incapable of a construction consistent with either, the habendum shall be rejected, and the deed stand good upon the premises.” He then refers to the case of Jarman vs. Orchard, in which one Thomas Nicholas, being possessed of a barn, cottage and land' as assignee of a lease for a thousand years, did, by indenture, reciting the lease, and expressed to be in consideration of natural love to his grand-daughter and for other good causes and considerations, grant, assign and set over to his grand-daughter, Mary, her executors, administrators and assigns, the said cottage, barn and lands, habendum, the same, to the said Mary, her executors, administrators and assigns, from and after the decease of the said Thomas Nicholas and his wife, for the residue of the term.

And it was contended the deed was void because it conveyed an interest which was to commence only after the death of Nicholas, as it was apparent he did not mean to part with his interest in the term during his own life, and so the Court of King’s Bench held, but this judgment was reversed in the Exchequer Chamber, and the reversal affirmed in Parliament; “ and the ground of the reversal was that the entire residue of the term passed by the premises of the deed and the habendum was void.” Again, Chancellor Kent (4 Kent’s Com., 468,) states the proposition very clearly and tersely, that the habendum “ cannot perform the office of devesting the estate already vested by the deed; for it is void if it be repugnant to the estate granted.” The same doctrine has been recognized and adopted by express decisions of this Court. Thus in ¹⁸⁵ Budd vs. Brooke, 3 Gill, 196 , the premises of a grant by-patent gave the grantees the same interests they held under a will which was recited, whereas the habendum gave them an estate in fee as joint tenants, and the two being in conflict, the Court held the one must overrule the other, and that.the limitation contained in the habendum must be rejected, and the estates given in the premises must prevail. The decision was placed by the Court upon the ground that “where there are two clauses in a deed of which the latter is contradictory to the former, the former shall stand,” and “ where the habendum is repugnant and contrary to the premises it is void, and the grantee shall take the estate given in the premises. This is a