The habendum of a deed is merely formal, and is that part of the conveyance which commences with the words "to have and to hold."
114 Thompson v. Gregory, 4 Johns. (N. Y.) 81; Thayer v. Torrey, 37 N. J. Law, 339. But see Wells v. Dillard, 93 Ga. 682, 20 S. E. 263. No words of limitation are necessary. Winthrop v. Fairbanks, 41 Me. 307. Cf. Achorn v. Jackson, 86 Me. 215, 29 Atl. 989.
115 Munn v. Worrall, 53 N. Y. 44; Whitaker v. Brown, 46 Pa. St 197.
116 Hornbeck v. Westbrook, 9 Johns. (N. Y.) 73; Rich v. Zeilsdorff, 22 Wis. 544; Barnes v. Burl, 38 Conn. 541.
117 Winthrop v. Fairbanks, 41 Me. 307.
118 Illinois Cent R. Co. v. Indiana & I. C. R. Co., 85 111. 211; Hornbeck v. Westbrook, 9 Johns. (N. Y.) 74. But see West Point Iron Co. v. Raymert, 45 N. Y. 703. A reservation to the grantor and a stranger to the deed for the lives of both has been upheld. Martin v. Cook, 102 Mich. 267, 60 N. W. 679.
119 Ashcroft v. Railroad Co., 126 Mass. 198. But see Dennis v. Wilson, 107 Mass. 591.
120 See ante, p. 376.
121 Pettee v. Hawes, 13 Pick (Mass.) 323; Hurd v. Curtis, 7 Metc. (Mass.) 91; Choate v. Burnham, 7 Pick. (Mass.) 274; Bates v. Swiger (W. Va.) 21 S. E 874; Lacy v. Comstock, 55 Kan. 86, 39 Pac. 1024. When a right of way is reserved, the fee in the whole land passes subject to the easement. Moffitt v. Lytle, 165 Pa. St. 173, 30 Atl. 922.
The object of the habendum is to designate what estate is to pass, and contains the words of limitation.122 If the habendum is repugnant to the granting clause, the habendum is void.123 Nor can the habendum be made to include lands which are not in the description.124 The habendum usually repeats the names of the grantees, and one may be named in the habendum who is not in the granting clause; for instance, a remainder-man.125 The habendum may enlarge the estate given in the granting clause,126 or restrict it127 The habendum will not be permitted to change the nature of the ownership, as by making owners in severalty joint owners.128 The uses and trusts accompanying an estate are usually limited in the habendum.
263. Description Of The Property-a valid dead must contain a sufficient description of the property to be conveyed to identify it. This may be by reference to
(a) Plats and maps (p. 421).
(b) Monuments (p. 422).
(c) Courses and distances (p. 424).
(d) Quantity (p. 425).
264. All things which are appurtenant to the property described pass -with it (p. 425).
122 Wager v. Wager, 1 Serg. & R. (Pa.) 374; Mitchell v. Wilson, 3 Cranch, C. C. 242, Fed. Cas. No. 9,672.
123 Major v. Bukley, 51 Mo. 227; Rateliffe v. Marrs, 87 Ky. 26, 7 S. W. 395, and 8 S. W. 876; Flagg v. Eames, 40 Vt. 16; Budd v. Brooke, 3 Gill (Md.) 198.
124 Manning v. Smith, 6 Conn. 289.
125 Riggin y. Love, 72 111. 553; Tyler v. Moore, 42 Pa, St. 374; Irwin's Heirs v. Longworth, 20 Ohio, 581.
126 Moss v. Sheldon, 8 Watts & S. (Pa.) 160; Jackson v. Ireland. 3 Wend. (N. Y.) 99.
127 Watters v. Bredin, 70 Pa. St. 237; Whitby v. Duffy, 135 Pa. St. 620, 19 Atl. 1065. As where, by the granting clause, a fee simple absolute would pass, the habendum may show an intention to convey a less estate. Jamaica Pond Aqueduct v. Chandler, 9 Allen (Mass.) 159, 168; Riggin v. Love, 72 111. 553; Montgomery v. Sturdivant, 41 Cal. 290.
128 Greenwood v. Tyler, Hob. 314. In ascertaining the intention of the would make it void for uncertainty.137 General expressions in the deed are controlled by more specific ones,138 and surplusage is to be rejected.139 All presumptions are taken most strongly against the grantor,140 and where the deed contains two conflicting descriptions the grantee will, on this principle, be permitted to elect under which he will hold.141
420 title. (Ch. 16
The object of the description in a deed is to identify the land to be conveyed, and no conveyance can be operative without a description which is sufficient for such purpose of identification.129 The description, however, need not be technically accurate, or even clear. It will be sufficient if a surveyor can locate the land by the description given, and therefore a mere error will be disregarded.130 Where there are material errors in a description, which are so gross that the deed cannot take effect, the instrument may be reformed in equity.131 Latent ambiguities in the description may always be explained by parol.132 Where such ambiguities exist, or the description is conflicting, the question for the courts is one of construction. To give effect to the deed, the situation of the parties at the time of its execution is to be considered, and their intention at that time is the test.133 For the purpose of showing such intentions, contemporaneous writings by the parties may be used.134 Where the terms of the description are clear, however, no question of construction arises, and the intention of the parties will not be allowed to control, though it is shown to be different from that expressed in the deed.135 In construing a deed, grammatical construction and punctuation are given little effect, though they may be of value, in connection with other things.136 All parts of the deed are to be construed together, and that description will be adopted which will give effect to the deed, rather than one which parties, "the entire instrument, the habendum as well as the premises, is to be considered." Barnett v. Barnett, 104 Cal. 298, 37 Pac. 1049.
129 George v. Bates, 90 Va. 839, 20 S. E. 828; Wilson v. Johnson (Ind. Sup.) 38 N. E. 38; Campbell v. Johnson, 44 Mo. 247; Wofford v. Mcklnna, 23 Tex. 44; Dwyre v. Speer, 8 Tex. Civ. App. 88, 27 S. W. 585.
130 Mason v. White, 11 Barb. (N. Y.) 173; Bosworth v. Sturtevant, 2 Cush. (Mass.) 392; Hoban v. Cable, 102 Mich. 206, 60 N. W. 466; Eggleston v. Bradford, 10 Ohio, 312; Travellers Ins. Co. v. Yount, 98 Ind. 454; Wells v. Hed-denberg (Tex. Civ. App.) 30 S. W. 702; Gress Lumber Co. v. Coody, 94 Ga. 519, 21 S. E. 217; Denver, M. & A. Ry. Co. v. Lock wood, 54 Kan. 586, 38 Pac. 794.
131 See Canedy v. Marcy, 13 Gray (Mass.) 373.
132 Bybee v. Hageman, 66 111. 519; Clark v. Powers, 45 111. 283.
133 Long v. Wagoner, 47 Mo. 178; Stanley v. Green, 12 Cal 148. 134 Putzel v. Van Brunt, 40 N. Y. Super. Ct. 50l
135 Kimball v. Semple. 25 Cal. 449. 136 Martind. Conv. (2d Ed.) § 98.
Plats and Maps.
The principal means employed to describe land in conveyances are reference to maps and plats, description by means of monuments, or courses and distances, and description by the amount of land to be conveyed. Where land is described by means of reference to a map or a plat, the map or plat referred to becomes a part of the deed for the purpose of that conveyance, and anything which appears thereon may affect the terms of the grant;142 as, where land is conveyed by means of reference to a plat which shows streets as in existence at certain places, the grantor may be estopped by such fact, and the grantee would have a right to have a street as located on the plat.143 So, also, if the land is described by a mere reference to another deed in which the land is conveyed, the effect is the same as when the reference is to the map.144 When maps or deeds are referred to for purposes of description, they may be identified by parol evidence.145 The loss of the map or deed would not make the conveyance in which they are referred to void, but the contents of the lost instrument could be established by other evidence.146
137 Anderson v. Baughman, 7 Mich. 69; City of Alton v. Illinois Transp. Co., 12 111. 38; Gano v. Aldridge, 27 Ind. 294.
138 Hannibal & St. J. B. Co. v. Green, 68 Mo. 169; Wade v. Deray, 50 Cal. 376.
139 Jackson v. Clark, 7 Johns. (N. Y.) 223; Kruse v. Wilson, 79 111. 235.
140 Charles Biver Bridge v. Warren Bridge, 11 Pet. 420, 589; Cocheco Manuf'g Co. v. Whittier, 10 N. H. 305.
141 Armstrong v. Mudd, 10 B. Mon. (Ky.) 144.
142 Dolde t. Vodicka, 49 Mo. 100; Masterson v. Munro, 105 Cal. 431, 38 Pac. 1106.
143 See ante, p. 359.
144 Mardis t. Meyers, 8 Tex. Civ. App. 542, 28 S. W. 693; Wuestcott v. Seymour, 22 N. J. Eq. 66; Deacons of Cong. Church In Auburn v. Walker, 124 Mass. 69. But see Loyejoy v. Lovett, Id. 270. Land may be described as bounded by land conveyed in another deed. Probett v. Jenkinson (Mich.) 63 N. W. 648.
145 Mccullough v. Wall, 4 Rich. (S. C.) 68; Penry v. Bichards, 52 Cal. 496.