habendum clause in Alabama

1972In Graves v. Wheeler, 180 Ala. 412, 416 , 61 So. 341, 343 , Mr. Justice Anderson, writing for the court, observed: “One of the rules of construction is that the granting clause in a deed prevails over introductory statements in conflict therewith, and over the habendum also, if that clause is contradictory of, or repugnant to, said granting clause.

1972In Graves v. Wheeler, 180 Ala. 412, 416 , 61 So. 341, 343 , Mr. Justice Anderson, writing for the court, observed: “One of the rules of construction is that the granting clause in a deed prevails over introductory statements in conflict therewith, and over the habendum also, if that clause is contradictory of, or repugnant to, said granting clause.

1953“One of the rules in the construction of deeds is that if there be two clauses which are utterly inconsistent with each other, and which cannot be reconciled or made to stand together, the last shall give way to the first, the maxim being ‘the first clause in a deed, and the last in a will shall prevail.’ Petty v. Boothe, supra. The rule has been stated many times in our cases that the granting clause, unless ambiguous or obscure, prevails over introductory recitals, statements in the habendum clause or other clauses in the deed, if they are contradictory or repugnant to the granting clause. *

1952One of the rules in the construction of deeds is that if there be two clauses which are utterly inconsistent with each other, and which cannot be reconciled or made to stand together, the last shall give way to the first, the maxim being “the first clause in a deed, and the last in a will shall prevail.” Petty v. Boothe, supra. The rule has been stated many times in our cases that the granting clause, unless ambiguous or obscure, prevails over introductory recitals, statements in the habendum clause or other clauses in the deed, if they are contradictory or repugnant to the granting clause.

1952Webb v. Webb’s Heirs, 29 Ala. 588 ; Dickson v. Van Hoose, supra; Hill v. Gray, 160 Ala. 273 , 49 So. 676 ; Head v. Hunnicutt, 172 Ala. 48 , 55 So. 161 ; Graves v. Wheeler, supra; Porter v. Henderson, 203 Ala. 312 , 82 So. 668 ; Reynolds v. Reynolds, 208 Ala. 674 , 95 So. 180 ; Gargis v. Kennemer, 216 Ala. 494 , 113 So. 620 ; King v. King, 242 Ala. 53 , 4 So.2d 740 ; Rowell v. Gulf, M. & O.

1952Webb v. Webb’s Heirs, 29 Ala. 588 ; Dickson v. Van Hoose, supra; Hill v. Gray, 160 Ala. 273 , 49 So. 676 ; Head v. Hunnicutt, 172 Ala. 48 , 55 So. 161 ; Graves v. Wheeler, supra; Porter v. Henderson, 203 Ala. 312 , 82 So. 668 ; Reynolds v. Reynolds, 208 Ala. 674 , 95 So. 180 ; Gargis v. Kennemer, 216 Ala. 494 , 113 So. 620 ; King v. King, 242 Ala. 53 , 4 So.2d 740 ; Rowell v. Gulf, M. & O.

1951The trial court was evidently guided in his conclusion by the general principles (1) that the granting clause; unless ambiguous or obscure, prevails over introductory recitals or statements in the habendum clause, if contradictory or repugnant thereto, Dickson v. Van Hoose, 157 Ala. 459 , 47 So. 718 , 19 L.R.A.,N.S., 719; Reynolds v. Reynolds, 208 Ala. 674 , 95 So. 180 ; (2) where an estate is expressly granted, á reservation, exception or restriction following which destroys the grant is void, Horticultural Development Co. v. Lark, 224 Ala. 193 , 193 So. 229 ; and (3) absent of a clear showin

1951The trial court was evidently guided in his conclusion by the general principles (1) that the granting clause; unless ambiguous or obscure, prevails over introductory recitals or statements in the habendum clause, if contradictory or repugnant thereto, Dickson v. Van Hoose, 157 Ala. 459 , 47 So. 718 , 19 L.R.A.,N.S., 719; Reynolds v. Reynolds, 208 Ala. 674 , 95 So. 180 ; (2) where an estate is expressly granted, á reservation, exception or restriction following which destroys the grant is void, Horticultural Development Co. v. Lark, 224 Ala. 193 , 193 So. 229 ; and (3) absent of a clear showin

2010And by another court it has been said: ‘It is a rule in the construction of deeds that of two repugnant clauses therein the first shall prevail against the second; and, according to this rule, the meaning of the premises shall not be changed by the words of the habendum as to irreconcilable differences.’ Chamberlain v. Runkle, 28 Ind.App. 599 , 63 N.E. 486 [ (1902) ]; Hunter v. Patterson, 142 Mo. 310 , 44 S.W. 250 [(1898)]; Budd v. Brooke, 3 Gill (Md.) 198, 43 Am.

2010And by another court it has been said: ‘It is a rule in the construction of deeds that of two repugnant clauses therein the first shall prevail against the second; and, according to this rule, the meaning of the premises shall not be changed by the words of the habendum as to irreconcilable differences.’ Chamberlain v. Runkle, 28 Ind.App. 599 , 63 N.E. 486 [ (1902) ]; Hunter v. Patterson, 142 Mo. 310 , 44 S.W. 250 [(1898)]; Budd v. Brooke, 3 Gill (Md.) 198, 43 Am.

2010And by another court it has been said: ‘It is a rule in the construction of deeds that of two repugnant clauses therein the first shall prevail against the second; and, according to this rule, the meaning of the premises shall not be changed by the words of the habendum as to irreconcilable differences.’ Chamberlain v. Runkle, 28 Ind.App. 599 , 63 N.E. 486 [ (1902) ]; Hunter v. Patterson, 142 Mo. 310 , 44 S.W. 250 [(1898)]; Budd v. Brooke, 3 Gill (Md.) 198, 43 Am.

2010And by another court it has been said: ‘It is a rule in the construction of deeds that of two repugnant clauses therein the first shall prevail against the second; and, according to this rule, the meaning of the premises shall not be changed by the words of the habendum as to irreconcilable differences.’ Chamberlain v. Runkle, 28 Ind.App. 599 , 63 N.E. 486 [ (1902) ]; Hunter v. Patterson, 142 Mo. 310 , 44 S.W. 250 [(1898)]; Budd v. Brooke, 3 Gill (Md.) 198, 43 Am.

2010It has been said that the ha-bendum must give way, because the granting clause is necessary to make the deed effective, while the habendum clause is not. [Ratliffe ] v. Marrs, 87 Ky. 26 , 7 S.W. 395 , 8 S.W. 876 [ (1888) ].

2010It has been said that the ha-bendum must give way, because the granting clause is necessary to make the deed effective, while the habendum clause is not. [Ratliffe ] v. Marrs, 87 Ky. 26 , 7 S.W. 395 , 8 S.W. 876 [ (1888) ].

1982This Court in Willis v. James , 287 Ala. 653 , 659 , 254 So.2d 717 , 722 (1971), quoted Henry v. White , 257 Ala. 549 , 552 , 60 So.2d 149 , 152-53 (1952), which stated: "If the granting clause does not expressly designate the estate conveyed, and there is nothing in the other parts of the deed to indicate the estate intended to be conveyed, the provisions of Title 47, § 14, Code 1940, [now § 35-4-2 ] have application.

1982This Court in Willis v. James , 287 Ala. 653 , 659 , 254 So.2d 717 , 722 (1971), quoted Henry v. White , 257 Ala. 549 , 552 , 60 So.2d 149 , 152-53 (1952), which stated: "If the granting clause does not expressly designate the estate conveyed, and there is nothing in the other parts of the deed to indicate the estate intended to be conveyed, the provisions of Title 47, § 14, Code 1940, [now § 35-4-2 ] have application.

1952Webb v. Webb's Heirs, 29 Ala. 588 ; Dickson v. Van Hoose, supra; Hill v. Gray, 160 Ala. 273 , 49 So. 676 ; Head v. Hunnicutt, 172 Ala. 48 , 55 So. 161 ; Graves v. Wheeler, supra; Porter v. Henderson, 203 Ala. 312 , 82 So. 668 ; Reynolds v. Reynolds, 208 Ala. 674 , 95 So. 180 ; Gargis v. Kennemer, 216 Ala. 494 , 113 So. 620 ; King v. King, 242 Ala. 53 , 4 So.2d 740 ; Rowell v. Gulf, M. & O.

1952Webb v. Webb’s Heirs, 29 Ala. 588 ; Dickson v. Van Hoose, supra; Hill v. Gray, 160 Ala. 273 , 49 So. 676 ; Head v. Hunnicutt, 172 Ala. 48 , 55 So. 161 ; Graves v. Wheeler, supra; Porter v. Henderson, 203 Ala. 312 , 82 So. 668 ; Reynolds v. Reynolds, 208 Ala. 674 , 95 So. 180 ; Gargis v. Kennemer, 216 Ala. 494 , 113 So. 620 ; King v. King, 242 Ala. 53 , 4 So.2d 740 ; Rowell v. Gulf, M. & O.

1951The trial court was evidently guided in his conclusion by the general principles (1) that the granting clause; unless ambiguous or obscure, prevails over introductory recitals or statements in the habendum clause, if contradictory or repugnant thereto, Dickson v. Van Hoose, 157 Ala. 459 , 47 So. 718 , 19 L.R.A.,N.S., 719; Reynolds v. Reynolds, 208 Ala. 674 , 95 So. 180 ; (2) where an estate is expressly granted, á reservation, exception or restriction following which destroys the grant is void, Horticultural Development Co. v. Lark, 224 Ala. 193 , 193 So. 229 ; and (3) absent of a clear showin

1951The trial court was evidently guided in his conclusion by the general principles (1) that the granting clause; unless ambiguous or obscure, prevails over introductory recitals or statements in the habendum clause, if contradictory or repugnant thereto, Dickson v. Van Hoose, 157 Ala. 459 , 47 So. 718 , 19 L.R.A.,N.S., 719; Reynolds v. Reynolds, 208 Ala. 674 , 95 So. 180 ; (2) where an estate is expressly granted, á reservation, exception or restriction following which destroys the grant is void, Horticultural Development Co. v. Lark, 224 Ala. 193 , 193 So. 229 ; and (3) absent of a clear showin

1915Co. v. Gullatt, 158 Ala. 502 , 48 South. 472 . (5,6) The granting clause of this deed was to “Martha Ann Harris during her natural life for her sole and separate use,” and the habendum clause was “to have and to hold unto the said Martha Ann Harris during her natural life for her sole and sep arate use, and after death to go by way of remainder over to her heirs.” The estate thus created is to be determined, not alone by the words used, but by the situation and circumstances of'the parties, the context of the instrument, and the fact that the instrument was or was not written by a person acqua

1907In other words, it Avas her intention to give the lot to Fannie and her children then living and those that may be born to her after its execution. —Sullivan v. McLaughlin, 99 Ala. 60 , 11 South. 447 ; Campbell v. Noble, 110 Ala. 382 , 19 South. 28 ; Watson v. Williamson, 129 Ala. 362 , 30 South. 281 ; Findley v. Hill, 133 Ala. 229 , 32 South. 497 .

1997We note that "the granting clause in a deed prevails over the habendum [clause], if that clause is contradictory of, or repugnant to, said granting clause." Little v. Hunter , 289 Ala. 6 , 13 , 265 So.2d 441 , 446 (1972). 2 See note 1 regarding resolution of any inconsistency between the granting clause and the habendum clause.

1997We note that "the granting clause in a deed prevails over the habendum [clause], if that clause is contradictory of, or repugnant to, said granting clause." Little v. Hunter , 289 Ala. 6 , 13 , 265 So.2d 441 , 446 (1972). 2 See note 1 regarding resolution of any inconsistency between the granting clause and the habendum clause.

1989If either or any of the said Johnny Holt Salters, Linda Irving Harbin, or James Comer Salters, who are children of the life tenant shall die without issue, or descendants of issue surviving then the share shall go to the surviv- or or survivors of the life tenant’s said children, Johnny Holt Salters, Linda Irving Harbin, and James Comer Salters, thereby releasing and waiving all rights of homestead and dower.” James contends that the granting clause and the habendum clause conflict and that the granting clause prevails over all other clauses in the event of a conflict, relying on Hanners v. Ha

1989If either or any of the said Johnny Holt Salters, Linda Irving Harbin, or James Comer Salters, who are children of the life tenant shall die without issue, or descendants of issue surviving then the share shall go to the surviv- or or survivors of the life tenant’s said children, Johnny Holt Salters, Linda Irving Harbin, and James Comer Salters, thereby releasing and waiving all rights of homestead and dower.” James contends that the granting clause and the habendum clause conflict and that the granting clause prevails over all other clauses in the event of a conflict, relying on Hanners v. Ha

1984Delatte v. Woods , 232 La. at 358 , 94 So.2d at 288. 5 Lessors stipulated that the shut-in royalty payment, and all other payments made by lessee, were made in a timely fashion and in accordance with the terms and conditions of the subject lease. 6 Lessors concede that the lease remains in full force and effect as to those parts of the leased acreage within the unit established by the Board. 7 A Pugh clause.

1984TORBERT, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur. 1 Lessees, or their predecessors in title, conducted drilling operations on the leased land on two occasions, but none of the operations resulted in a producing well. 2 The lease included a provision for $100.00 to be paid annually for a shut-in gas well to be considered as producing under the habendum clause of the lease. 3 In passing, we note our agreement with the view of the Supreme Court of Louisiana that the orders of the regulatory authority charged with the responsibility of preventing waste of the state's oil and gas "supersed

1984Jones v. Bronco Oil Gas Co., supra; Mize v. Exxon Corp. , 640 F.2d at 641 .

1983Johnson v. Keener , 370 So.2d 265 (Ala. 1979).

1982This Court in Willis v. James , 287 Ala. 653 , 659 , 254 So.2d 717 , 722 (1971), quoted Henry v. White , 257 Ala. 549 , 552 , 60 So.2d 149 , 152-53 (1952), which stated: "If the granting clause does not expressly designate the estate conveyed, and there is nothing in the other parts of the deed to indicate the estate intended to be conveyed, the provisions of Title 47, § 14, Code 1940, [now § 35-4-2 ] have application.

1982This Court in Willis v. James , 287 Ala. 653 , 659 , 254 So.2d 717 , 722 (1971), quoted Henry v. White , 257 Ala. 549 , 552 , 60 So.2d 149 , 152-53 (1952), which stated: "If the granting clause does not expressly designate the estate conveyed, and there is nothing in the other parts of the deed to indicate the estate intended to be conveyed, the provisions of Title 47, § 14, Code 1940, [now § 35-4-2 ] have application.

1980In Palmateer v. Reid , 212 Or. 179 , 254 P. 359 (1927), the court construed the following language placed after the habendum clause: "provided, however, that the said party of the second part shall have no power to sell and convey said premises, but that at his death it is to descend to his heirs." The Oregon court construed the clause under a statutory provision similar to Code 1975, § 35-4-2 .

1975Co. of America v. Karr, 241 Ala. 525 , 3 So.2d 409 (1941) ; and there is, therefore, no repugnance between the granting clause and the habendum clause.

1975Co. of America v. Karr, 241 Ala. 525 , 3 So.2d 409 (1941) ; and there is, therefore, no repugnance between the granting clause and the habendum clause.

1972In such a case there is no conflict between the grant' and the limitation ...” ( 216 Ala., 289 , 112 So., 816 ) When Assignments 2 and 5 are considered together, the appellant, Dr. Little, contends that the trial court erred in entering its final decree in that it failed, “to find, from the evidence presented at the trial, that the restrictions set forth in paragraph three (3) of the habendum clause of the subject deed were personal to the Grantors and did not run with the land.” In the recent case of Allen v. Axford, 285 Ala. 251, 258 , 231 So.2d 122 , we said: “The paramount factor in determ

1972In such a case there is no conflict between the grant' and the limitation ...” ( 216 Ala., 289 , 112 So., 816 ) When Assignments 2 and 5 are considered together, the appellant, Dr. Little, contends that the trial court erred in entering its final decree in that it failed, “to find, from the evidence presented at the trial, that the restrictions set forth in paragraph three (3) of the habendum clause of the subject deed were personal to the Grantors and did not run with the land.” In the recent case of Allen v. Axford, 285 Ala. 251, 258 , 231 So.2d 122 , we said: “The paramount factor in determ

1972Justice Simpson in writing the opinion of the court cited Parsons v. Boyd, supra, and stated that joint tenancy was abolished in Alabama and that the common law right of survivorship was the evil the statute (§ 19) sought to destroy.

1972Justice Simpson in writing the opinion of the court cited Parsons v. Boyd, supra, and stated that joint tenancy was abolished in Alabama and that the common law right of survivorship was the evil the statute (§ 19) sought to destroy.

1972White v. Harrison, 202 Ala. 623 , 81 So. 565 ; Webb v. Jones, 163 Ala. 637 , 50 So. 887 .

1972White v. Harrison, 202 Ala. 623 , 81 So. 565 ; Webb v. Jones, 163 Ala. 637 , 50 So. 887 .

1972Ward v. Torian, 216 Ala. 288 , 112 So. 815 .

1972Ward v. Torian, 216 Ala. 288 , 112 So. 815 .

1972White v. Harrison, 202 Ala. 623 , 81 So. 565 ; Webb v. Jones, 163 Ala. 637 , 50 So. 887 .

1972White v. Harrison, 202 Ala. 623 , 81 So. 565 ; Webb v. Jones, 163 Ala. 637 , 50 So. 887 .

1971Subsequently, this court has considered some of the problems in Bernhard v. Bernhard, 278 Ala. 240 , 177 So.2d 565 , wherein this court held that an habendum clause substantially identical with the clause quoted above” did create a tenancy in common during the joint lives of the tenants with right of survivorship in the survivor.” Under the deed to Farmer Seale and Carolyn Seale, Farmer Seale owned two different interests in the property, to wit: an undivided half interest for His life and a contingent remainder in the whole.

1971Subsequently, this court has considered some of the problems in Bernhard v. Bernhard, 278 Ala. 240 , 177 So.2d 565 , wherein this court held that an habendum clause substantially identical with the clause quoted above” did create a tenancy in common during the joint lives of the tenants with right of survivorship in the survivor.” Under the deed to Farmer Seale and Carolyn Seale, Farmer Seale owned two different interests in the property, to wit: an undivided half interest for His life and a contingent remainder in the whole.

1971Bernhard v. Bernhard, supra; Owens v. Owens, 281 Ala. 239 , 201 So.2d 396 , ¶ [2]; Title 47, § 140. 1 Shrout and Shrout recovered judgment against Farmer Seale and recorded a certificate of that judgment.

1971Bernhard v. Bernhard, supra; Owens v. Owens, 281 Ala. 239 , 201 So.2d 396 , ¶ [2]; Title 47, § 140. 1 Shrout and Shrout recovered judgment against Farmer Seale and recorded a certificate of that judgment.