This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
The courts, in connection with the construction of written conveyances, as of other instruments, have asserted some general rules of construction, to aid in ascertaining the intention of the parties thereto.
In case of doubt, it is said, the conveyance is to be construed most strongly as against the grantor, or in favor of the grantee, on the theory, it seems, that the words used are to be regarded as the words of the grantor rather than of the grantee.42 Applying this rule, an exception or reservation in a conveyance is construed in favor of the grantee rather than of the grantor.43
41. Ante Sec. 362.
42. Co. Litt. 48a, 183a; Neill v. Devonshire, 8 App. Cas. 135; Dickson v. Van Hoose, 157 Ala. 459, 19 L. R. A. (N. S.) 717, 47 So. 718; Jenkins v. Ellis, 111 Ark. 220, 163 S. W. 524; Younger v. Moore, 155 Cal. 767, 103 Pac. 221; Brown v. State, 5 Colo. 496; Sweeney v. Landers, 80 Conn. 575, 69 Atl. 566; Peoria & P. Union Ry. Co. v. Tamplin, 156 111. 285, 40 N. E. 960; Robertson v. Lieber, 56 Ind. App. 152, 105 N. E. 66; Weaver v. Osborne, 154 Iowa 10, 38 L. R. A. (N. S.) 706, 134 N. W. 103; Chapman v. Hamblet, 100 Me. 454, 62 Atl. 215; Second Universalist Soc. v. Du-dan, 65 Md. 460; Soria v. Harrison County, 96 Miss. 109, 50 So. 443; Grooms v. Morrison, 249 Mo. 544, 155 S. W. 430;
Crane v. Mcmurtrie, 77 N. J. Eq. 545, 78 Atl. 170; Outlaw v. Gray, 163 N. C. 325, 79 S. E. 676; Collison v. Philadelphia Co. 233 Pa. 350, 82 Atl. 474; Huntley v. Houghton. 85 Vt. 200, 81 Atl. 452; South & Western R. Co. v. Mann. 108 Va. 557, 62 S. E. 354; Maxwell v. Harper, 51 Wash. 351, 98 Pac. 756; Dear Creek Lumber Co. v. Sheets, 75 W. Va. 21, 83 S. E. 81; Green Bay & Mississippi Canal Co. v. Hewett, 55 Wis. 96, 12 N. W. 382.
43. Cardigan v. Armitage, 2 B. & C. 197; Jacobs v. Roach, 161 Ala. 201, 49 So. 576; Wiley v. Sirdorus, 41 Iowa, 224; Towns v. Brown, (Ky.) 114 S. W. 773: Wellman v. Churchill, 92 Me. 193, 42 Atl. 352; Billings v. Beggs, 114 Me. 67, 95 Atl. 354;
The rule has been applied in the case of a lease, in favor of the lessee,44 and in the case of a mortgage, in favor of the mortgagee.45 The rule has been occasionally referred to as one of last resort,46 and as one of questionable utility or propriety.47 There are occasional suggestions to be found that the rule, while applicable in the case of a deed poll, does not apply in the case of an indenture, the language of which is to be regarded as that of both parties.48
In case of a clear repugnancy between two clauses of the conveyance, the earlier clause should, it is said, prevail over the later clause.49 This rule likewise has been referred to as one of last resort,50 and of questionable utility.51
Derby v. Hall, 2 Gray (Mass.) 236; Bolio v. Marvin, 130 Mich. 82, 89 N. W. 563; Cocheco Mfg. Co. v. Whittier, 10 N. H. 305; Duryea v. New York, 62 N. Y. 592; Beardslee v. Light etc. Co., 207 N. Y. 34, 100 N. E. 434; Klaer v. Ridgeway, 86 Pa. 329; Sheffield Water Co. v. Elk Tanning Co., 225 Pa. 614, 74 Atl. 742; Bradley v. Virginia Ry. & Power Co., 118 Va. 233 87 S. E. 721.
44. Doe v. Dixon, 9 East 15; Dann v. Spurrier, 3 Bos. & P. 399.
45. Stuart v. Worden, 42 Mich. 154, 3 N. W. 876; United States Mortgage Co. v. Gross, 93 111. 483.
46. Patterson v. Gage, 11 Colo. 50; Swan v. Morehouse, 6 Dist. Col. 225; Falley v. Giles, 29 Ind. 114; Carroll v. Granite Mfg. Co., 11 Md. 411; Biddle v. Vande-venter, 26 Mo. 500; Flagg v. Eames, 40 Vt. 16, 94 Am. Dec. 363.
47. Taylor v. St. Helens Corp., 6 Ch. I). 264, per Jesse! M. R.;
Swan v. Morehouse, 6 Dist. Col. 225; Biddle v. Vanderventer, 26 Mo. 500.
48. Sheppard's Touchstone 87, 2 Blackst. Comm. 380; Browning v. Beston, Plowd 131; Palmer v. Evangelical Baptist Benevolent & Missionary Soc. 166 Mass. 143, 43 N. E. 1028; Union Water Power Co. v. Lewiston, 101 Me. 564, 65 Atl. 67.
49. Sheppard's Touchstone, 88; Norton Deeds, 80; Robertson v. Robertson, 191 Ala. 297, 68 So. 52; Tubbs v .Gatewood, 26 Ark. 128; Havens v. Dale, 18 Cal. 359; Lewraan v. Owens, 132 Ga. 484; Marden v. Leimbach, 115 Md. 206, 80 Atl. 958; Blackwell v. Blackwell, 124 N. C. 269, 32 S. E. 676.
50. Bush v. Watkins, 14 Beav. 425; Berners v. Real Estate Co., 134 Mo. App. 290, 114 S. W. 131; Waterman v. Andrews, 14 R. I. 589.
51. Mcwilliams v. Ramsay, 23 Ala., 813; Pike v. Munroe. 36 Me. 309, 58 Am. Dec. 751.
- Language of premises as controlling. It was a well established rule of the common law that, in the case of a clear repugnancy between the premises and the habendum, the premises would prevail to the extent that an estate specifically limited in the granting clause could not be cut down to a less estate or invalidated by the language of the habendum.52 This rule was applied, however, only when there was a specific limitation in the premises and, in the absence of such a limitation, the quantum of the estate conveyed might be determined by the language of the habendum. For instance, while a conveyance without words of inheritance would pass merely a life estate, the insertion of such words in the habendum was sufficient to supply their lack in the premises, for the purpose of creating an estate in fee simple, as for instance, in the case of a conveyance to A, to have and hold to A and his heirs.53 And on the same principle where, under the modern
52. Throckmerton v. Tracy, 1 Plowd. 145; 2 Blackst. Coram. 298; 2 Sanders, Uses & Trusts 155, note; Challis, Real Prop. (3rd Ed.) 411; Norton Deeds 294.
Even at common law, although the grant in the premises was to A. and his "heirs," the habendum might show that a fee tail only was created, this being regarded, not as abridging the estate granted, but as merely a qualification of the word "heirs" as first used. Co. Litt. 21a; Turnman v. Cooper, Cro. Jac. 476; Altham's Case, 8 Coke, 154b. See Smith v. Lindsay, 37 Pa. Super Ct. 171. A conveyance to A. and the heirs of his body, habendum to him and his heirs forever, gave A. an estate tail, probably with a fee simple expectant. Co. Litt. 21a and Hargrave's note; Corbin v. Healy, 20 Pick. (Mass.) 514. See Hunter v. Patterson, 142 Mo. 310, 44 S. W. 250.