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LITE ESTATE CANNOT BE ENLARGED INTO FEE BY WARRANTY CLAUSE TX

DEED. – Where a deed, owing to the absence of words of inheritance in the conveying part, creates only a life estate in the grantee, such estate cannot be enlarged into a fee by the use of the word "heirs” in the war.

ranty clause. PARTITION — OWNER OF LIFE ESTATE IN LAND MAY DEMAND. - A party

having a life estate in two thirds of a mill site is entitled to demand partition between himself and the owner in fee of the other third. Action for partition. The facts are stated in the opinion. Henderson Brothers, for the appellant Walter Ashley, contra.

McIVER, C. J. The plaintiff and his mother-in-law, Mrs. Catherine A. McGrew, being the owners of adjacent tracts of land separated by the waters of Dean Swamp, on the first day of October, 1869, Mrs. McGrew executed a paper under her hand and seal, in the presence of two subscribing witnesses, of which the following is a copy: “Know all men by these presents, that I, Catherine A. McGrew, .... for the love and affection I have and bear to my son-in-law, John Jordan, . .. do give and release unto him so much land at, along, below, and above the mill-dam upon my land, known by the name of the Mill's Old Dam, and adjoining his, as will serve for the purpose of cutting a race, and for waste-way and mill, all conveniences in putting up same and lumberyards, also free ingress and egress to and from said mill or pond through my lands, and also of backing water upon my land to the height of thirteen feet live water, and all the privileges of said mill two thirds of the time (reserving to myself one third part of said mill after paying one third part of whatever amount it may cost him (Jordan) in putting in operation said mill), the same being situated on Dean Swamp,

... the right to which I do hereby bind myself, my heirs, executors, and administrators, to warrant and forever defend unto the said John Jordan, his heirs and assigns forever (reserving to myself the same privileges given and relinquished to him).”

Soon after the execution of this paper, the plaintiff proceeded to erect a mill at a cost of something over two thousand dollars, Mrs. McGrew giving her note to plaintiff for the amount agreed upon as her third of the expense incurred in erecting the mill. For a while the mill was used by the par. ties in accordance with the terms of said paper, the plaintiff having the exclusive use for two thirds of the time, and Mrs. McGrew the exclusive use for one third. After a time, however, they leased the mill to one Tyler for the term of ten years, the plaintiff receiving two thirds and Mrs. McGrew one third of the rent. Before the

Before the expiration of this lease it was surrendered, and subsequently the plaintiff and Mrs. McGrew divided the use of the Mill as before, until the 9th of February, 1875, when Mrs. McGrew conveyed her interest to her daughter, Mrs. Holman, her husband, B. C. Holman, and the defendant, Idella L., who subsequently became the wife of the defendant, John A. Neece; and the use of the mill continued to be divided as before between the plaintiff and these grantees of Mrs. McGrew until the mill was destroyed by fire some time in the year 1875.

On the 8th of February, 1879, Holman and wife conveyed their interest in the mill to the defendant, Mrs. Neece, in pursuance of a previous agreement to that effect; and on the 8th of July, 1878, though prior to the last-mentioned conveyance, but subsequent to the agreement that the same should be made, an arrangement was made between the plaintiff and the defendant John A. Neece for the rebuilding of the mill, in which said John A. Neece undertook to convey to the plaintiff, “ for and in consideration of the copartnership of putting up or rebuilding a saw-mill in the Mill's Old Dam, on Dean Swamp, with John Jordan, and the keeping up in a navigable condition the waste-way therein, do give and grant to the said Jordan privilege of backing water on our land to the height of ten feet live water, ingress and egress through my land to and from said mill and pond, so as not to damage any lands now in or may hereafter be put in cultivation, nor shall he be required to use or open a road that will throw him out of a direct course to said mill-pond more than four hundred yards, and the right of using the most convenient soil or dirt in keeping up said mill-dam and filling up around said mill and waste-way, the use of lumber-yard two thirds of the time, the same being his time of using said mill"; and on the same day the plaintiff, by his deed to the said John A. Neece and wife, in consideration of said copartnership, conveyed to them the same privileges, with the same reservations, in his land.

In pursuance of this arrangement, the mill was rebuilt, and continued to be used by the plaintiff and the Neeces, upon the same terms as before, until some time in 1887, when that mill was again burned. The plaintiff, wishing again to rebuild, after some negotiations with Mrs. Neece for that purpose, which proved to be fruitless, determined to rebuild the mill himself, and so notified the defendants. After plaintiff had made his preparations to rebuild, and made some progress in the work, defendants forbid his proceeding, and obstructing the work even to the extent of cutting the dam, the plaintiff, on the 17th of September, 1888, commenced this action. In his complaint he claims that he is the owner in fee of two undivided third parts of the property described in the deed from Mrs. McGrew, and that the defendant Mrs. Neece is the owner of the remaining one undivided third, and he demands judgment that defendants be enjoined from obstructing his work of rebuilding the mill or interfering therewith, or that the property be sold for partition.

The circuit judge held that the deeds under which plaintiff claims were not conveyances of the land, but simply “covepants to stand seised of the same to the use and for the pur poses of the copartnership so long as it should continue, and no longer"; that from the nature of the copartnership it was without limit as to time, and there being no provision for its dissolution by either party, it could be determined by either party at any time, and was practically dissolved when the defendants refused their consent to the rebuilding of the mill; and that the land, having fulfilled the purposes to which it had been dedicated, reverts or remains in the parties in whom the legal title is vested. He therefore rendered judgment dismissing the complaint. From this judgment plaintiff appeals upon the several grounds set out in the record.

It seems to us that this appeal turns largely upon the construction of the deed from Mrs. McGrew to the plaintiff, for the plaintiff cannot, and as we understand does not, claim under the deed from John A. Neece, who was not the owner of the land, and who, so far as appears, had not the siightest authority to dispose of the property of his wife. We do not think that the deed from Mrs. McGrew to the plaintiff can be properly construed as a covenant to stand seised of the land to the use and for the purpose of the copartnership, but, on the contrary, that it must operate as a conveyance of the land itself. The paper is manifestly very inartistically drawn, and hence the use of the word "give," which, it is urged, is not appropriate to a conveyance, is not a circumstance entitled to any weight. It was very natural that such a word should be used in a paper not resting on any valuable consideration, but based solely upon love and affection, - intended to be a free

gift. The paper does not purport to transfer the use of the land for any particular purpose, but the land itself. The language is, “ do give and release unto him so much land ... as will serve for the purpose of cutting a race," etc. It is not that the use of so much land as will be needed to cut the race, etc., is given. The words "serve for the purpose," relied upon to show the intention of granting an easement merely, and not the land itself, were manifestly used to indicate the 'amount of land conveyed. The parties probably did not know how much land would be needed to cut the race, etc., and hence the land intended to be conveyed is not described as so many acres or so many feet, but simply “so much land at, along, below, and above the mill-dam upon my land, known by the name of the Mill's Old Dam, and adjoining his, as will serve for the purpose," etc.

There is not a word in the paper, so far as we can discover, which indicates that the idea of any copartnership was in the minds of the parties. On the contrary, it seems to us that the language used in the paper, to which we must resort for its proper construction, shows that the intention of Mrs. McGrew was to give her son-in-law so much of her land as would be necessary to cut the race, etc., with a reservation to herself of one undivided third part thereof. The material element of a partnership-an agreement to share in the losses as well as the profits - is wholly wanting. During the time, two thirds which plaintiff was to have the use of the mill, Mrs. McGrew would have had no right to share in the profits, nor be responsible for any losses that might be incurred; and so, likewise, the plaintiff during the time, one third, which Mrs. McGrew would be entitled to the use of the mill, the plaintiff would incur no liability for losses, nor be entitled to any portion of the profits. There is not only nothing in the deed to indicate that the idea of a copartnership was in the minds of the parties, but we hear nothing of it in the testimony for several years after the execution of the deed.

Holding, then, as we do, that an undivided two-thirds interest in the land was conveyed to the plaintiff, our next inquiry will be as to the nature and extent of the estate thus conveyed. It is very obvious that the deed, upon its face, owing to the absence of any words of inheritance in the conveying part, creates nothing but a life estate in the plaintiff; but plaintiff contends that by the operation of equitable estoppel, arising from the use of the word “heirs,” in the

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warranty clause, as well as from the long possession of the plaintiff and the acts of the parties, the estate conveyed should be construed to be an estate in fee, and not a mere life estate. It is conceded that an estate cannot be enlarged by the warranty, but the contention, as we understand it, on the part of the plaintiff, is, that the use of the word " heirs," in the warranty clause, is sufficient to show that the real in. tention of the grantor was to convey the fee, and that she and those claiming under her are estopped from disputing a construction in accordance with such intention. We cannot accept this view; for if it should be adopted, it would fritter away and practically destroy the well-settled and conceded rule that the warranty clause cannot operate so as to enlarge the estate granted. Indeed, in most cases where deeds drawn by unskillful draughtsmen fail to carry the fee, by reason of the omission of the requisite words of inheritance, the real intention of the parties is dereated, and we do not think the use of the word " heirs," in the warranty clause, can be used to establish such intention, especially where found in a deed so inartificially drawn as this is. Nor do we see anything in the testimony to aid in raising such estoppel. We see no reason why the question as to the nature of plaintiff's estate should have been the subject of controversy, or even conversation, before it was suggested by an examination of plaintiff's deed pending the negotiations for rebuilding the mill.

It seems to us, therefore, that the plaintiff and the defend. ant, Mrs. Neece, are now tenants in common of the land in question, he being entitled to an undivided two thirds for his life, with remainder to the heirs at law of Mrs. Catherine McGrew, who died before the commencement of this action, and she (Mrs. Neece) being entitled to the remaining one third in fee, and that the plaintiff is entitled to demand partition thereof, as provided for by section 1829, General Statutes.

The judgment of this court is, that the judgment of the circuit court be reversed, and that the case be remanded to that court for such further proceedings as may be necessary to carry out the views herein announced.

DEEDS – EFFECT OF COVENANT OF WARRANTY OPON ESTATE GRANTED I. - Covenant of general warranty in a deed is intended to defend only the estate granted, and cannot enlarge that estate: Hull v. Hull, 35 W. Va. 155; 29 Am. St. Rep. 800; Adams v. Ross, 30 N. J. L 605; 82 Am. Doo. 237. See also note to Sweet v. Browon, 45 Am. Dec. 244.

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