Rupert v. Penner. ter 73, Compiled Statutes, which provides: "In the construction of every instrument creating or conveying, or authorizing or requiring the creation or conveyance of any real estate, or interest therein, it shall be the duty of the courts of justice to carry into effect the true interest (intent) of the parties, so far as such intent can be collected from the whole instrument, and so far as such intent is consistent with the rules of law." Under the above provision, in construing an instrument conveying real estate, when by any reasonable interpretation the granting or conveying clause and the habendum can be reconciled, effect must be given both. Applying this rule to the construction of this deed it is manifest from the language used that it was the intention of the grantor to convey only a life estate to John P. Cleveland. Argument could not make it plainer. Why specify that John P. Cleveland should have and hold the premises for and during the term of his natural life, "and at his decease the same shall descend in equal shares to his children," naming them, if it was the intention of the parties that he should take an estate in fee-simple? Clearly the purpose in using this language was to limit the estate conveyed to Mr. Cleveland to a life estate. A case precisely in point, decided under a statute similar to ours, is Riggin v. Lwe, 72 Ill., 553, in which the conveyancing clause of the deed granted, bargained, sold, and conveyed to Eliza McGilton certain described real estate. The habendum clause, "to have and to hold the said above granted premises to the said Eliza McGilton during her natural life, and at her death the same is by these presents conveyed and confirmed absolutely unto her husband, Andrew McGilton; * and in case of the death of him, the said husband, Andrew McGilton, before that of her, the said Eliza McGilton, then by these presents the said afore described real estate is conveyed and confirmed absolutely unto the heirs at law of him, the Rupert v. Penner. said Andrew McGilton, subject only to the lawful claims of her, the said Eliza McGilton." It was held that there was no repugnancy between the granting clause and the habendum, and that the deed conveyed a life estate to Eliza McGilton, with remainder in fee-simple to Andrew McGilton. See the following cases cited in plaintiffs' brief: Tyler v. Moore, 17 Atl. Rep. [Pa.], 217; Montgomery v. S'urdivant, 14 Cal., 290; Bodine v. Arthur, 14 S. W. Rep. [Ky.], 904; Bean v. Kenmuir, 86 Mo., 666; Watters v. Bredin, 70 Pa. St., 237. It is claimed that the word "children" used in the deed should be interpreted as a word of limitation and not a word of purchase; in other words, it should be construed to mean heirs, and, if so construed, Cleveland took a feesimple title. While the word "children" is sometimes held to mean heirs, such a construction is not permissible here, for the reason that certain specified children of John P. Cleveland are named in the deed as the persons to whom the title should pass, thus clearly excluding the inference that it was the purpose of the parties that the property should go to the persons who might be his heirs at his death. We think the word "children," in the connection in which it is used, is merely descriptive, being employed for the purpose of identifying the particular persons named in the deed as remainder-men. We think counsel for defendants attach too much importance to the word "deceased," mentioned in the habendum clause of the deed. To give the word, in the connection it is employed, its ordinary legal meaning would be to reject and disregard other parts of the sentence in which it is found, and ignore the intention of the parties as gathered from the entire instrument. We cannot believe it was used to denote that the children of John P. Cleveland were to take by inheritance and not as purchasers. Had such been the intention of the grantor, it is not reasonable to suppose the names of those who were to acquire the es Rupert v. Penner. tate on the death of John P. Cleveland, would have been mentioned, for at that time they might not be living, and other children might have been born to him after the making of the deed, who might be heirs at his death. (Dennett v. Dennett, 40 N. H., 498; Ballentine v. Wood, 42 N. J. Eq., 558; Halstead v. Hall, 60 Md., 213; Hodges v. Fleetwood, 102 N. Car., 122; Tyler v. Moore, 17 Atl. Rep. [Pa.], 216.) Our conclusion is that only a life estate vested in John P. Cleveland, which passed by the mortgage foreclosure proceedings to Housel, and by conveyance from him to the defendant Penner. This brings us to the consideration of the question whether or not the said John P. Cleveland is dead. If alive, plaintiffs would not be entitled to the possession of the property until after his death. Mrs. S. S. Cleveland, who was sworn on the part of the plaintiffs, testified on that branch of the case as follows: Q. You were the wife of John P. Cleveland, were you not? A. Yes, sir. Q. Is he living? A. No, sir. Q. When did he die? A. Three years ago. Q. Where did he die? A. At Kansas City. Q. You were living with him at the time? * Cross-examination : Q. You say Mr. Cleveland died in 1886? * The witness further testified that plaintiffs are her children; that after the death of her husband she made an Rupert v. Penner. ineffectual search in the place where he usually kept his papers for the deeds to the property in controversy. The objection that the death of John P. Cleveland, who took the life estate, is not proven, is technical, and without merit. It is based upon the fact that in the question propounded to Mrs. Cleveland relating to her husband's death, the middle letter of his name is written "B." instead of "P." An examination of the bill of exceptions satisfies us that it is a clerical error of the official stenographer in taking down the testimony and transcribing his short-hand notes of the same. The transcript makes it appear that the plaintiffs introduced in evidence a deed from Hotaling to John B. Cleveland and a mortgage from John B. Cleveland to Housel. Yet an examination of the instruments referred to, copies of which are in the record, shows that in each the middle initial of Mr. Cleveland's name is written "P." To suggest that plaintiffs proved the death of a person who was never connected with the property in any manner and searched among his papers for the deeds in plaintiffs' chain of title is to reflect upon the intel'igence of their counsel without any just grounds therefor. Lastly, it is contended that there is no proof that plaintiffs are the persons named in the deed from Hotaling to Cleveland as remainder-men. The undisputed testimony shows that the witness, Mrs. S. S. Cleveland, was the wife of John P. Cleveland, and that plaintiffs are his children. The names of all but two correspond exactly to the names mentioned in the deed, and these two, Mary H. and Sarah A., it is established beyond controversy, are sisters of the other plaintiffs, but, as already stated, are married, respectively, to Rupert and Burchmore. There is no evidence which in the least casts any suspicion upon the identity of the plaintiffs with the persons named in the deed as remainder-men, and the only conclusion we can draw from the testimony is that such identity is shown. Johnson v. Torpy. The judgment must be reversed and the cause remanded for further proceedings. REVERSED AD REMANDED. THE other judges concur. 35 604 43 883 JOHN W. JOHNSON ET AL. V. WILLIAM TORPY ET AL. [FILED NOVEMBER 2, 1892.] 1. Joint Tort Feasors: CONTRIBUTION. In determining whether one joint wrong-doer is entitled to contribution from another the test is, whether the former knew, at the time of the commission of the act for which he has been compelled to respond, that such act was wrongful. 2. :: INTOXICATING LIQUORS: DAMAGES FOR UNLAWFUL SALE. T., a licensed saloon-keeper, sold intoxicating liquor to R., an habitual drunkard, for which the wife of the latter recovered judgment against him on his bond. T. having satisfied said judgment, sued J., another saloon-keeper in the same village, to enforce contribution on the ground that the latter had also sold liquor to R. which contributed to the injury for which the wife of the latter had recovered. As the undisputed evidence proves that R. was known to be a common or habitual drunkard at and before the sale of the liquor to him, the presumption is that T. knew when he sold the liquor in question that he was doing a wrongful and unlawful act and he is therefore not entitled to contribution from J. ERROR to the district court for Johnson county. Tried below before APPELGET, J. J. Hall Hitchcock, E. W. Thomas, and S. P. Davidson for plaintiffs in error. D. F. Osgood, and Tallt & Bryan, contra. |