habendum clause in Kentucky

1933Murphy et al. v. Murphy, 182 Ky. 731 , 207 S. W. 491, 492 ; Ratliffe v. Ratliffe, 182 Ky. 230 , 206 S. W. 478 ; May et al. v. C. & O.

1921A remainder may be created in a grantee who is first mentioned in the habendum clause.” Ratliffe v. Ratliffe, 182 Ky. 230 ; Ballard v. L. & N. R.

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.

2015In Kentucky, “paying quantities” in this context has been held to mean “such quantities as are susceptible of division between the parties and as will yield a royalty to the lessor that justifies the occupancy of and interference with his use of his lands by the operations.” Warfield Natural Gas Co., 59 S.W.2d at 538; Cumberland Contracting Co. v. Coffey, 405 S.W.2d 553 (Ky. 1966) (holding that one- and-one-half barrels of oil per week was not “production” as contemplated by the habendum clause).

2015In Kentucky, “paying quantities” in this context has been held to mean “such quantities as are susceptible of division between the parties and as will yield a royalty to the lessor that justifies the occupancy of and interference with his use of his lands by the operations.” Warfield Natural Gas Co., 59 S.W.2d at 538; Cumberland Contracting Co. v. Coffey, 405 S.W.2d 553 (Ky. 1966) (holding that one- and-one-half barrels of oil per week was not “production” as contemplated by the habendum clause).

1989A similar result was reached in Combs v. Slone, 306 Ky. 419 , 208 S.W.2d 304 (1948), where the deed stated to “N.V.

1989A similar result was reached in Combs v. Slone, 306 Ky. 419 , 208 S.W.2d 304 (1948), where the deed stated to “N.V.

1989In Sallee v. Warner, 306 Ky. 846 , 209 S.W.2d 491 (1948), the deed referred to a singular grantee except in the habendum clause which stated “the grantee and her bodily heirs, and assigns, forever.” The Court held that a fee tail was created which by KRS 381.070 was converted to a fee simple and no ambiguity in the deed existed that would indicate the grantor intended otherwise.

1989In Sallee v. Warner, 306 Ky. 846 , 209 S.W.2d 491 (1948), the deed referred to a singular grantee except in the habendum clause which stated “the grantee and her bodily heirs, and assigns, forever.” The Court held that a fee tail was created which by KRS 381.070 was converted to a fee simple and no ambiguity in the deed existed that would indicate the grantor intended otherwise.

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.

1955The appellant relies heavily upon Arnett v. Sinclair Prairie Oil Co., D.C., 88 F.Supp. 343, 349 , affirmed in Delta Drilling Co. v. Arnett, 6 Cir., 186 F.2d 481 , to support his argument that all minerals are mined.

1955The appellant relies heavily upon Arnett v. Sinclair Prairie Oil Co., D.C., 88 F.Supp. 343, 349 , affirmed in Delta Drilling Co. v. Arnett, 6 Cir., 186 F.2d 481 , to support his argument that all minerals are mined.

1955In the recent case of Yunker’s Co-Executors v. Mason, Ky., 284 S.W.2d 98 , we held that where a deed had conveyed minerals “ ‘such as coal lead and salt’ ”, a subsequent provision in the habendum clause referring to “ ‘all the minerals and mining privileges’ ” was limited to hard minerals theretofore described in the deed.

1955In Easley v. Melton, Ky., 262 S.W.2d 686 , we found it unnecessary to determine whether “ ‘coal and mining rights’ ” included oil and gas, because the habendum clause of the deed, referring only to “coal rights,” made it clear that only the right to mine coal was being conveyed.

1953More nearly in point is the recent case of Barren County Board of Education v. Jordan, Ky., 249 S.W.2d 814, 815 , where the habendum clause specified that the conveyance was for “so long as a good and sufficient schoolhouse is kept thereon and used for common school purposes.” We there held that the deed created a determinable fee with a possibility of reverter without regard to whether or not the reverter clause in the deed was invalid under the rule against perpetuities.

1946Grainger v. Edwards, 190 Ky. 408 , 227 S. W. 561 .

1946Grainger v. Edwards, 190 Ky. 408 , 227 S. W. 561 .

1944To this contention, which constitutes the major attack upon the correctness of the judgment appealed from, appellee responds, and we think justly, that under the principles enunciated in Case v. Elk Horn Coal Corporation, supra; Wells v. North East Coal Co., 255 Ky. 63 , 72 S. W. (2d) 745 ; and Himler Coal Co. v. Kirk, 205 Ky. 666 , 266 S. W. 355 , the right to construct a transmission line necessary or convenient in the prosecution of its mining operations, was absolute, though not literally expressed; and that the sole intent of the inserted provision was to limit the size of the timber whic

1944To this contention, which constitutes the major attack upon the correctness of the judgment appealed from, appellee responds, and we think justly, that under the principles enunciated in Case v. Elk Horn Coal Corporation, supra; Wells v. North East Coal Co., 255 Ky. 63 , 72 S. W. (2d) 745 ; and Himler Coal Co. v. Kirk, 205 Ky. 666 , 266 S. W. 355 , the right to construct a transmission line necessary or convenient in the prosecution of its mining operations, was absolute, though not literally expressed; and that the sole intent of the inserted provision was to limit the size of the timber whic

1944To this contention, which constitutes the major attack upon the correctness of the judgment appealed from, appellee responds, and we think justly, that under the principles enunciated in Case v. Elk Horn Coal Corporation, supra; Wells v. North East Coal Co., 255 Ky. 63 , 72 S. W. (2d) 745 ; and Himler Coal Co. v. Kirk, 205 Ky. 666 , 266 S. W. 355 , the right to construct a transmission line necessary or convenient in the prosecution of its mining operations, was absolute, though not literally expressed; and that the sole intent of the inserted provision was to limit the size of the timber whic

1944To this contention, which constitutes the major attack upon the correctness of the judgment appealed from, appellee responds, and we think justly, that under the principles enunciated in Case v. Elk Horn Coal Corporation, supra; Wells v. North East Coal Co., 255 Ky. 63 , 72 S. W. (2d) 745 ; and Himler Coal Co. v. Kirk, 205 Ky. 666 , 266 S. W. 355 , the right to construct a transmission line necessary or convenient in the prosecution of its mining operations, was absolute, though not literally expressed; and that the sole intent of the inserted provision was to limit the size of the timber whic

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.

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.

1933Murphy et al. v. Murphy, 182 Ky. 731 , 207 S. W. 491, 492 ; Ratliffe v. Ratliffe, 182 Ky. 230 , 206 S. W. 478 ; May et al. v. C. & O.

1933Murphy et al. v. Murphy, 182 Ky. 731 , 207 S. W. 491, 492 ; Ratliffe v. Ratliffe, 182 Ky. 230 , 206 S. W. 478 ; May et al. v. C. & O.

1927In construing a deed the intention of the parties as appears from the whole deed must control, and it is a well-recognized rule that: “If the intention of the parties can he determined from the instrument when read as a whole, such intention will be effectuated as the true contract of the parties.”’ Stanley v. Slone, 216 Ky. 114 , 287 S. W. 360 .

1927In construing a deed the intention of the parties as appears from the whole deed must control, and it is a well-recognized rule that: “If the intention of the parties can he determined from the instrument when read as a whole, such intention will be effectuated as the true contract of the parties.”’ Stanley v. Slone, 216 Ky. 114 , 287 S. W. 360 .

1920S. 340, the railroad acquired from McLemore and others, by separate instruments, the right of way over their land,.the habendum clause being “unto the railroad company its successors and assigns in fee simple.” The court held the company did not take title in fee simple to this right of way so as to subject the shme to a sale under an execution, since the words “in fee simple” did not enlarge what was otherwise the limited character of the grant, that the grant was merely of a right of way. > In Jones v. Van Bochove, 103 Mich. 98 , the grant was of a right of way for a railroad, the deed being

1919Ferrell v. Childress, 172 Ky. 760 , 189 S. W. 1149 ; Bowling v. Bowling, 172 Ky. 32 , 188 S. W. 1070 .

1919Ferrell v. Childress, 172 Ky. 760 , 189 S. W. 1149 ; Bowling v. Bowling, 172 Ky. 32 , 188 S. W. 1070 .

1919Ferrell v. Childress, 172 Ky. 760 , 189 S. W. 1149 ; Bowling v. Bowling, 172 Ky. 32 , 188 S. W. 1070 .

1919Ferrell v. Childress, 172 Ky. 760 , 189 S. W. 1149 ; Bowling v. Bowling, 172 Ky. 32 , 188 S. W. 1070 .

1911(Watkins v. Pfeifer, 29 Ky. Law Rep., 97 ; Pruitt v. Holland, 92 Ky., 641 ; Johnson v. Johnson, 2 Met., 333 .) The case at bar comes squarely within the rule above laid down, there being nothing in the deed to indicate an intention on the part of the grantor to create an estate for life.

1905Rep., 162 , and McFarland, &c. v. Hatchett, 118 Ky., 423 , 80 S. W., 1185 , 26 Ky. Law Rep., 276 .) In the case at bar the children were not only named in the habendum clause, but those in esse at the date of the deed were named in the caption, and they were made parties grantee to the deed.

1905Rep., 162 , and McFarland, &c. v. Hatchett, 118 Ky., 423 , 80 S. W., 1185 , 26 Ky. Law Rep., 276 .) In the case at bar the children were not only named in the habendum clause, but those in esse at the date of the deed were named in the caption, and they were made parties grantee to the deed.