granting clause in Kentucky

1926Hall v. Wright, 121 Ky. 16 , 87 S. W. 1129 , 27 Ky. Law Rep. 1185 .

1914(Hall v. Wright, 87 S. W., 1129 ; Crews v. Glasscock, 107 S. W., 237 ; Bowe v. Richmond, 109 S. W., 389 ; Kelly v. Parsons, 127 S. W., 792 ; Virginia, Etc., Co. v. Dye, 146 Ky., 519 ; Centers v. Big Sandy Co., 149 Ky., 11 , and cases cited.) When we aply this rule to the deed in question and take into consideration the whole instrument, it is not material that Mrs. Moore is designated the party of the third part, and that in the granting clause, the land is conveyed to the parties of the second part; for in the same clause it is provided that the land is to be held by Mrs. Moore in trust for t

1933L., sec. 100, page 1046, the rule as to construction of deeds is thus stated: “The modern tendency is to ignore the technical distinctions between the various parts of a deed *221 and to seek the grantor’s intention from them all, without undue preference to any, giving due effect to all, including both habendum and granting clause, where such can reasonably be done, in order to arrive at the true intention, even to the extent of allowing the habendum to qualify _ or control the granting clause where it was manifestly intended that it should do so.” Bodine v. Arthur, 91 Ky. 53 , 14 S. W. 904 ,

1933L., sec. 100, page 1046, the rule as to construction of deeds is thus stated: “The modern tendency is to ignore the technical distinctions between the various parts of a deed *221 and to seek the grantor’s intention from them all, without undue preference to any, giving due effect to all, including both habendum and granting clause, where such can reasonably be done, in order to arrive at the true intention, even to the extent of allowing the habendum to qualify _ or control the granting clause where it was manifestly intended that it should do so.” Bodine v. Arthur, 91 Ky. 53 , 14 S. W. 904 ,

1961Consonant with the principle followed in these cases, the earlier case of Henderson v. Mack, 1884, 82 Ky. 379 , 6 Ky.Law Rep. 313, in which the granting clause conveyed to *553 Young, his heirs and assigns, and the habendum said, “To have and to hold * * * to the second party, his heirs and assigns, forever, with covenant of general warranty during his natural life, and after his death to go to and belong absolutely to Belle Mack,” etc., held that Young took a life estate and Belle Mack the remainder in fee.

1912The court saying in the course of the opinion: “Thus if an estate be granted to A. in fee simple, and in the habendum to him for life, and thereafter to his heirs generally, this restrictive clause is inoperative, because it contradicts and defeats the grant, unless it can be gathered from the whole» instrument that the grantor intended that the restrictive clause in the habendum should control the granting clause.” In Henderson v. Mack, 82 Ky., 379 , decided before the Batliff case: “The granting clause was ‘do hereby sell, grant and convey to the party of the second part, his heirs and assig

1941Further, and to like effect, was the rule in this jurisdiction stated in Wilson et al. v. Moore, 146 Ky. 679 , 143 S. W. 431, 432 , where the court, in response to a like contention, said: "Counsel for appellee contend that the judgment below was proper under the rule laid down in Ratliffe, etc., v. Marrs, etc., 87 Ky. 26 , 7 S. W. 395 , 8 S. W. 876 , where it was held that, if there is a clear repugnance between the nature of the estate *499 granted and that limited in the habendum, the latter yields to the former.

1941Further, and to like effect, was the rule in this jurisdiction stated in Wilson et al. v. Moore, 146 Ky. 679 , 143 S. W. 431, 432 , where the court, in response to a like contention, said: "Counsel for appellee contend that the judgment below was proper under the rule laid down in Ratliffe, etc., v. Marrs, etc., 87 Ky. 26 , 7 S. W. 395 , 8 S. W. 876 , where it was held that, if there is a clear repugnance between the nature of the estate *499 granted and that limited in the habendum, the latter yields to the former.

1919In support of contention (a) made by tbe widow her counsel insists, that the deceased husband was by the granting clause, as- well as the habendum clause of the deed executed to him, given a fee simple estate in the land, and under the doctrine announced in the cases of Ray v. Spears, 23 Ky. Law Rep. 814 ; Humphrey v. Potter, 24 Ky. Law Rep. 1264 ; Hughes v. Hammond, 136 Ky. 694 , and Land v. Land; supra, the attempted limitation by the latter part of the habendum clause of the absolute fee conveyed to the deceased was void and did not affect his absolute estate.

1916As stated, appellee is the only person named as grantee in the caption of the deed; and the granting clause conveyed it to her without any restrictions, and by the habendum clause the land is.conveyed to ‘her and her heirs and assigns, forever, with covenant of general warranty.’ This, undoubtedly, gave her a fee-simple title to the land, and the last words of the habendum clause, above quoted, are simply an attempt to limit her estate.” In our opinion, the Ray case, the Potter case, and Hughes v. Hammond, supra, control this case, and sustain the judgment of the chancellor holding that M.

1989Thus, “[t]he old rule that the estate conveyed by the granting clause could not be diminished by a later provision in the deed is no longer followed.” Id. at 552 .

1989While Humphrey, supra, was not expressly overruled in Combs, supra, the rule relied upon by the appellant is no longer in use.

1970After his first RCr 11.42 motion was ruled on, the case of Stinnett v. Commonwealth, Ky., 446 S.W.2d 292 (1969) was decided, wherein we held that the allegation of a denial of the right to appeal was sufficient to require the granting of a hearing.

1969By reason of Rodriquez v. United States, 395 U.S. 327 , 89 S.Ct. 1715 , 23 L.Ed.2d 340 , we overrule Tipton v. Commonwealth, Ky., 398 S.W.2d 493 , and Williams v. Commonwealth, Ky., 405 S.W.2d 17 , to the extent they require an allegation that meritorious grounds existed for an appeal or require an identification of such errors.

1969By reason of Rodriquez v. United States, 395 U.S. 327 , 89 S.Ct. 1715 , 23 L.Ed.2d 340 , we overrule Tipton v. Commonwealth, Ky., 398 S.W.2d 493 , and Williams v. Commonwealth, Ky., 405 S.W.2d 17 , to the extent they require an allegation that meritorious grounds existed for an appeal or require an identification of such errors.

1969It is our opinion that under Hall v. Commonwealth, Ky., 429 S.W.2d 359 ; Wedding v. Commonwealth, Ky., 394 S.W.2d 109 , and Hammershoy v. Commonwealth, Ky., 398 S.W.2d 883 , the allegations of Stin-nett’s motion with reference to inadequacy of representation by counsel on his trial, and to denial of an appeal, were sufficient to require the granting of a hearing.

1969By reason of Rodriquez v. United States, 395 U.S. 327 , 89 S.Ct. 1715 , 23 L.Ed.2d 340 , we overrule Tipton v. Commonwealth, Ky., 398 S.W.2d 493 , and Williams v. Commonwealth, Ky., 405 S.W.2d 17 , to the extent they require an allegation that meritorious grounds existed for an appeal or require an identification of such errors.

1969It is our opinion that under Hall v. Commonwealth, Ky., 429 S.W.2d 359 ; Wedding v. Commonwealth, Ky., 394 S.W.2d 109 , and Hammershoy v. Commonwealth, Ky., 398 S.W.2d 883 , the allegations of Stin-nett’s motion with reference to inadequacy of representation by counsel on his trial, and to denial of an appeal, were sufficient to require the granting of a hearing.

1969By reason of Rodriquez v. United States, 395 U.S. 327 , 89 S.Ct. 1715 , 23 L.Ed.2d 340 , we overrule Tipton v. Commonwealth, Ky., 398 S.W.2d 493 , and Williams v. Commonwealth, Ky., 405 S.W.2d 17 , to the extent they require an allegation that meritorious grounds existed for an appeal or require an identification of such errors.

1966Here the “ * * * words simply add a descriptive fact about the mineral rights and in no sense are capable of the meaning that only so much of the rights as have been sold are reserved.” Bartley v. Rowe, supra, at p. 142 .

1961Brown v. Harlow, 1947, 305 Ky. 285 , 203 S.W.2d 60 .

1961Brown v. Harlow, 1947, 305 Ky. 285 , 203 S.W.2d 60 .

1961In Hale v. Hale the granting clause recited that “the coal and hard minerals * '* * have been heretofore sold-and conveyed and are not embraced in this conveyance.” [ 297 Ky. 631 , 180 S.W.2d 858 .] The habendum clause read, .“to have and to hold said * * * land with the exception of the coal and hard minerals * •* * that have heretofore been sold * * •*.” The court held that the exception was not restricted to such of the coal rights as had in fact been theretofore sold.

1961In Gibson v. Sellars .the exception clause was: “It is expressly understood * * * that the coal and mineral rights * * * have been heretofore sold * * * and are expressly excluded.” [ 252 S.W.2d 911 .] In fact only the coal rights had previously been sold.

1959The closest step this Court has taken toward upholding the granting of an exception as such was in the case of Thomson v. Tafel, 309 Ky. 753 , 218 S.W.2d 977, 981 .

1959The closest step this Court has taken toward upholding the granting of an exception as such was in the case of Thomson v. Tafel, 309 Ky. 753 , 218 S.W.2d 977, 981 .

1959This statement appears in the case of In re Stump, 272 Ky. 593 , 114 S.W.2d 1094 -1097: “Therefore, one proven to have violated those conditions of good behavior and professional integrity annexed to the granting of the privilege of practicing law, in applying for restoration, has the burden of overcoming by persuasive evidence the former adverse judgment on his qualification.

1959This statement appears in the case of In re Stump, 272 Ky. 593 , 114 S.W.2d 1094 -1097: “Therefore, one proven to have violated those conditions of good behavior and professional integrity annexed to the granting of the privilege of practicing law, in applying for restoration, has the burden of overcoming by persuasive evidence the former adverse judgment on his qualification.

1959McKinney’s Heirs v. Central Kentucky Natural Gas Company, 134 Ky. 239 , 120 S.W. 314 ; Sellars v. Ohio Valley Trust Company, Ky., 248 S.W.2d 897 .

1959McKinney’s Heirs v. Central Kentucky Natural Gas Company, 134 Ky. 239 , 120 S.W. 314 ; Sellars v. Ohio Valley Trust Company, Ky., 248 S.W.2d 897 .

1959McKinney’s Heirs v. Central Kentucky Natural Gas Company, 134 Ky. 239 , 120 S.W. 314 ; Sellars v. Ohio Valley Trust Company, Ky., 248 S.W.2d 897 .

1952Scott v. Laws, 185 Ky. 440 , 215 S.W. 81 , 13 A. L.R. 369; Kentucky-West Virginia Gas Co. v. Preece, 260 Ky. 601 , 86 S.W.2d 163 ; Federal Gas, Oil & Coal Co. v. Moore, 290 Ky. 284 , 161 S.W,2d 46 .

1952Scott v. Laws, 185 Ky. 440 , 215 S.W. 81 , 13 A. L.R. 369; Kentucky-West Virginia Gas Co. v. Preece, 260 Ky. 601 , 86 S.W.2d 163 ; Federal Gas, Oil & Coal Co. v. Moore, 290 Ky. 284 , 161 S.W,2d 46 .

1952Scott v. Laws, 185 Ky. 440 , 215 S.W. 81 , 13 A. L.R. 369; Kentucky-West Virginia Gas Co. v. Preece, 260 Ky. 601 , 86 S.W.2d 163 ; Federal Gas, Oil & Coal Co. v. Moore, 290 Ky. 284 , 161 S.W,2d 46 .

1952Scott v. Laws, 185 Ky. 440 , 215 S.W. 81 , 13 A. L.R. 369; Kentucky-West Virginia Gas Co. v. Preece, 260 Ky. 601 , 86 S.W.2d 163 ; Federal Gas, Oil & Coal Co. v. Moore, 290 Ky. 284 , 161 S.W,2d 46 .

1952Scott v. Laws, 185 Ky. 440 , 215 S.W. 81 , 13 A. L.R. 369; Kentucky-West Virginia Gas Co. v. Preece, 260 Ky. 601 , 86 S.W.2d 163 ; Federal Gas, Oil & Coal Co. v. Moore, 290 Ky. 284 , 161 S.W,2d 46 .

1952Scott v. Laws, 185 Ky. 440 , 215 S.W. 81 , 13 A. L.R. 369; Kentucky-West Virginia Gas Co. v. Preece, 260 Ky. 601 , 86 S.W.2d 163 ; Federal Gas, Oil & Coal Co. v. Moore, 290 Ky. 284 , 161 S.W,2d 46 .