habendum clause in Illinois

1917It can only affect the grant when it can be construed as consistent with the granting clause. (i Devlin on Real Estate Deeds, sec. 220; Riggin v. Love, 72 Ill. 553 ; Sassenberg v. Huseman, 182 id. 341.) If, however, we give the words in the granting clause the meaning attributed to them by defendants in error’s counsel and construe the word “or” to mean “and,” and read the habendum clause, “and at his death, then the above described tract of land to go into full ownership and control of the said Hannah E.

1906Should the habendum clause be construed to limit or define the estate conveyed in the granting clause in accordance with the rule laid down in Riggin v. Love, 72 Ill. 553 , Welch v. Welch, 183 id. 237, and Sassenberg v. Huseman, 182 id. 341, then, construing the word “children” not to mean “heirs,” but in the ordinary sense, without any reference to the context, and considering both the granting and habendum clauses together, it would not create an estate tail, but Eliza J.

1987Co. (1945), 392 Ill. 362, 372 , 64 N.E.2d 499, 504 .) Likewise, the language here served merely to locate the land on which the railroad would be constructed and "expresse[d] no intention to limit the estate conveyed to less than an estate in fee simple." 392 Ill. 362, 372 , 64 N.E.2d 499, 504 . • 5 The third reference to railroad purposes in the 27 similar deeds, which the plaintiffs contend showed an intention to convey an easement only, is contained in the habendum clause, which states: "TO HAVE AND TO HOLD the same unto the party of the second part, their successors, transferees or assigns

1987Co. (1945), 392 Ill. 362, 372 , 64 N.E.2d 499, 504 .) Likewise, the language here served merely to locate the land on which the railroad would be constructed and "expresse[d] no intention to limit the estate conveyed to less than an estate in fee simple." 392 Ill. 362, 372 , 64 N.E.2d 499, 504 . • 5 The third reference to railroad purposes in the 27 similar deeds, which the plaintiffs contend showed an intention to convey an easement only, is contained in the habendum clause, which states: "TO HAVE AND TO HOLD the same unto the party of the second part, their successors, transferees or assigns

1986(See Ardizonne v. Archer (1919), 72 Okla. 70 , 178 P. 263 ; Manhattan Oil Co. v. Carrell (1905), 164 Ind. 526 , 73 N.E. 1084 .) Thus, courts have declined to apply the habendum clause meaning of commercial or paying production when used to invoke drilling obligations, since this would subject the lessee to additional investment based upon production from a prior well that would never repay the initial investment.

1986(See Ardizonne v. Archer (1919), 72 Okla. 70 , 178 P. 263 ; Manhattan Oil Co. v. Carrell (1905), 164 Ind. 526 , 73 N.E. 1084 .) Thus, courts have declined to apply the habendum clause meaning of commercial or paying production when used to invoke drilling obligations, since this would subject the lessee to additional investment based upon production from a prior well that would never repay the initial investment.

1986(See Ardizonne v. Archer (1919), 72 Okla. 70 , 178 P. 263 ; Manhattan Oil Co. v. Carrell (1905), 164 Ind. 526 , 73 N.E. 1084 .) Thus, courts have declined to apply the habendum clause meaning of commercial or paying production when used to invoke drilling obligations, since this would subject the lessee to additional investment based upon production from a prior well that would never repay the initial investment.

1986(See Ardizonne v. Archer (1919), 72 Okla. 70 , 178 P. 263 ; Manhattan Oil Co. v. Carrell (1905), 164 Ind. 526 , 73 N.E. 1084 .) Thus, courts have declined to apply the habendum clause meaning of commercial or paying production when used to invoke drilling obligations, since this would subject the lessee to additional investment based upon production from a prior well that would never repay the initial investment.

1984App.3d 338 , 341 N.E.2d 428 .)" While the instant case involves the reservation of mineral interest in a grantor by way of an habendum clause in a deed, I believe that the principles articulated in Belden apply with equal force here.

1984App. 3d 338 , 341 N.E.2d 428 .)” While the instant case involves the reservation of mineral interest in a grantor by way of an habendum clause in a deed, I believe that the principles articulated in Belden apply with equal force here.

1982An analogous case, Dickerson v. Ray (1960), 20 Ill. 2d 107 , 169 N.E.2d 341 , supports this result; Dickerson was a suit brought to enforce rights under the habendum clause in a mineral deed.

1982An analogous case, Dickerson v. Ray (1960), 20 Ill. 2d 107 , 169 N.E.2d 341 , supports this result; Dickerson was a suit brought to enforce rights under the habendum clause in a mineral deed.

1980(Greer v. Salmon (1970), 82 N.M. 245 , 479 P.2d 294 ; Freeman v. Magnolia Petroleum Co. (1943), 141 Tex. 339 , 171 S.W.2d 339 ; Annot., 96 A.L.R.2d 345 (1964).) In Greer, the shut-in clause was held to be a condition, rather than a covenant which would have created a firm obligation to pay the shut-in royalty, and, therefore, the lessee’s failure to pay timely the shut-in royalty triggered the automatic termination provision of the habendum clause.

1980(Greer v. Salmon (1970), 82 N.M. 245 , 479 P.2d 294 ; Freeman v. Magnolia Petroleum Co. (1943), 141 Tex. 339 , 171 S.W.2d 339 ; Annot., 96 A.L.R.2d 345 (1964).) In Greer, the shut-in clause was held to be a condition, rather than a covenant which would have created a firm obligation to pay the shut-in royalty, and, therefore, the lessee’s failure to pay timely the shut-in royalty triggered the automatic termination provision of the habendum clause.

1980(Metz v. Doss (1969), 114 Ill.

1980The courts have generally held that the production necessary to extend the lease must be in paying quantities, even though the habendum clause does not use the term “paying quantities.” (2 Summers, Oil and Gas §298, at 217 (1959).) In Illinois, a contrary position was taken in Gillespie v. Ohio Oil Co. (1913), 260 Ill. 169 , 102 N.E. 1043 , where a lease for a five-year term “and so long thereafter as oil or gas is produced” was held to have been effectively extended by the continuous pumping of oil, even though the quantity produced was so small as to make the venture unprofitable.

1980The courts have generally held that the production necessary to extend the lease must be in paying quantities, even though the habendum clause does not use the term “paying quantities.” (2 Summers, Oil and Gas §298, at 217 (1959).) In Illinois, a contrary position was taken in Gillespie v. Ohio Oil Co. (1913), 260 Ill. 169 , 102 N.E. 1043 , where a lease for a five-year term “and so long thereafter as oil or gas is produced” was held to have been effectively extended by the continuous pumping of oil, even though the quantity produced was so small as to make the venture unprofitable.

1980(Greer v. Salmon (1970), 82 N.M. 245 , 479 P.2d 294 ; Freeman v. Magnolia Petroleum Co. (1943), 141 Tex. 339 , 171 S.W.2d 339 ; Annot., 96 A.L.R.2d 345 (1964).) In Greer, the shut-in clause was held to be a condition, rather than a covenant which would have created a firm obligation to pay the shut-in royalty, and, therefore, the lessee’s failure to pay timely the shut-in royalty triggered the automatic termination provision of the habendum clause.

1980(Greer v. Salmon (1970), 82 N.M. 245 , 479 P.2d 294 ; Freeman v. Magnolia Petroleum Co. (1943), 141 Tex. 339 , 171 S.W.2d 339 ; Annot., 96 A.L.R.2d 345 (1964).) In Greer, the shut-in clause was held to be a condition, rather than a covenant which would have created a firm obligation to pay the shut-in royalty, and, therefore, the lessee’s failure to pay timely the shut-in royalty triggered the automatic termination provision of the habendum clause.

1974In Porter v. Porter, 381 Ill. 322 , 45 N.E.2d 635 , the court did interpret language in a deed and in a habendum clause to the deed to determine whether a conveyance created a tenancy in common, a joint tenancy, or a fife estate.

1974In Porter v. Porter, 381 Ill. 322 , 45 N.E.2d 635 , the court did interpret language in a deed and in a habendum clause to the deed to determine whether a conveyance created a tenancy in common, a joint tenancy, or a fife estate.

1958Shell Oil Co. v. Moore, 382 Ill. 556 ; Jilek v. Chicago, Wilmington & Franklin Coal Co. 382 Ill. 241 ; Shell Oil Co. v. Dye, 135 F.2d 365 .

1958Louis Railway Co. 392 Ill. 362 ;) that a conveyance of “all coal and other mineral” has a settled legal meaning and does include oil and gas, with incidental exploration, development and production rights (Shell Oil Co. v. Moore, 382 Ill. 556 ; Jilek v. Chicago, Wilmington & Franklin Coal Co. 382 Ill. 241 ; Walter v. Sohio Petroleum Co. 402 Ill. 33 ; Shell Oil Co. v. Dye, 135 F.2d 365 ) ; that the enumeration of other and incidental mining rights in the habendum clause of a conveyance of "all coal and other mineral” does not derogate from, but enlarges the express and implied rights included i

1958Shell Oil Co. v. Moore, 382 Ill. 556 ; Jilek v. Chicago, Wilmington & Franklin Coal Co. 382 Ill. 241 ; Shell Oil Co. v. Dye, 135 F.2d 365 .

1958Louis Railway Co. 392 Ill. 362 ;) that a conveyance of “all coal and other mineral” has a settled legal meaning and does include oil and gas, with incidental exploration, development and production rights (Shell Oil Co. v. Moore, 382 Ill. 556 ; Jilek v. Chicago, Wilmington & Franklin Coal Co. 382 Ill. 241 ; Walter v. Sohio Petroleum Co. 402 Ill. 33 ; Shell Oil Co. v. Dye, 135 F.2d 365 ) ; that the enumeration of other and incidental mining rights in the habendum clause of a conveyance of "all coal and other mineral” does not derogate from, but enlarges the express and implied rights included i

1958Shell Oil Co. v. Moore, 382 Ill. 556 ; Jilek v. Chicago, Wilmington & Franklin Coal Co. 382 Ill. 241 ; Shell Oil Co. v. Dye, 135 F.2d 365 .

1958Louis Railway Co. 392 Ill. 362 ;) that a conveyance of “all coal and other mineral” has a settled legal meaning and does include oil and gas, with incidental exploration, development and production rights (Shell Oil Co. v. Moore, 382 Ill. 556 ; Jilek v. Chicago, Wilmington & Franklin Coal Co. 382 Ill. 241 ; Walter v. Sohio Petroleum Co. 402 Ill. 33 ; Shell Oil Co. v. Dye, 135 F.2d 365 ) ; that the enumeration of other and incidental mining rights in the habendum clause of a conveyance of "all coal and other mineral” does not derogate from, but enlarges the express and implied rights included i

1958Louis Railway Co. 392 Ill. 362 ;) that a conveyance of “all coal and other mineral” has a settled legal meaning and does include oil and gas, with incidental exploration, development and production rights (Shell Oil Co. v. Moore, 382 Ill. 556 ; Jilek v. Chicago, Wilmington & Franklin Coal Co. 382 Ill. 241 ; Walter v. Sohio Petroleum Co. 402 Ill. 33 ; Shell Oil Co. v. Dye, 135 F.2d 365 ) ; that the enumeration of other and incidental mining rights in the habendum clause of a conveyance of "all coal and other mineral” does not derogate from, but enlarges the express and implied rights included i

1957In general, a dry-hole clause is designed for the purpose of relieving the lessee of the duty of paying delay rental for the period prescribed, after the completion of a dry hole. (2 Summers, Oil and Gas, sec. 351, pp. 264-267; Harrel v. Atlantic Refining Co. 123 F. Supp. 70 .) The clause in question neither contains a reference to an extension of the term of the lease, nor does it provide for additional time for the commencement of a second well, predicated upon the drilling of a dry hole, to be commenced within the primary term.

1957(Cf. 2 Summers, Oil and Gas, sec. 303, pp. 167-173; Pagan & Co. v. Burns, 247 Mich. 674 , 226 N.W. 653 ; Ann., 67 A.L.R. 522 .) Because the parties chose to create an extremely short term in the habendum clause, there was no purpose to be served by a delay-rental provision and so it was stricken.

1957(Cf. 2 Summers, Oil and Gas, sec. 303, pp. 167-173; Pagan & Co. v. Burns, 247 Mich. 674 , 226 N.W. 653 ; Ann., 67 A.L.R. 522 .) Because the parties chose to create an extremely short term in the habendum clause, there was no purpose to be served by a delay-rental provision and so it was stricken.

1949(Magnolia Petroleum Co. v. West , 374 Ill. 516 ; Woods v. Seymour , 350 Ill. 493 ; Buck v. Garber , 261 Ill. 378 .) Again, where the granting clause in a deed does not definitely describe the estate granted and there is an habendum or subsequent clause which does define the estate intended to be conveyed without being repugnant to the granting clause, the *Page 461 intention of the grantor may be ascertained from the wording of the entire deed, including the habendum clause, and not from the granting clause, alone.

1949The following are the only portions of the deed material to the determination of the questions raised: “Conveys and Warrants to the said parties of the second part not as tenants in common, but as joint tenants, so that upon the death of one. all the entire fee simple title shall vest in the survivor the following described real estate, to-wit: [description of the real estate] to have and to hold the above granted premises to the said parties of the second part forever not in tenancy in common but in joint tenancy, so that upon the death of one the entire fee simple title shall vest in the sur

1949(Magnolia Petroleum Co. v. West , 374 Ill. 516 ; Woods v. Seymour , 350 Ill. 493 ; Buck v. Garber , 261 Ill. 378 .) Again, where the granting clause in a deed does not definitely describe the estate granted and there is an habendum or subsequent clause which does define the estate intended to be conveyed without being repugnant to the granting clause, the *Page 461 intention of the grantor may be ascertained from the wording of the entire deed, including the habendum clause, and not from the granting clause, alone.

1949(Magnolia Petroleum Co. v. West , 374 Ill. 516 ; Woods v. Seymour , 350 Ill. 493 ; Buck v. Garber , 261 Ill. 378 .) Again, where the granting clause in a deed does not definitely describe the estate granted and there is an habendum or subsequent clause which does define the estate intended to be conveyed without being repugnant to the granting clause, the *Page 461 intention of the grantor may be ascertained from the wording of the entire deed, including the habendum clause, and not from the granting clause, alone.

1949(Coogan v. Jones, 278 Ill. 279 .) Where there are two irreconcilably repugnant clauses in a deed, the first of the two clauses will control.

1949Anderson v. Stewart , 285 Ill. 605 .

1942In Harder v. Matthews, 309 Ill. 548 it is said, “Where the granting clause does not define the estate conveyed, the habendum is efficient to declare the estate intended and to rebut any implication arising from the omission to describe the estate in the preceding clause. [Citations.] The rule is that the habendum cannot cut down the estate granted, but in some cases it has been helcl that it may enlarge the estate.” If the limiting clauses had any other effect than that pointed out above they would be ineffective, because they attempt to limit a fee clearly and' presently granted.

1928(Sheppard’s Touchstone, 102; 2 Blackstone’s Com. 112; Williams on Real Prop. 43; Hickox v. Klaholt, 291 Ill. 544 ; Coogan v. Jones, 278 id. 279.) The effect of the habendum clause in this deed at common law, if it is to be given effect, was to create a fee tail in Abigail and her named children, remainder in fee to the heirs of the body of said grantees.

1928Co., 16 Ore. 33 .) The argument is to the effect that these provisions being appropriate for a 20-year lease indicate that the instrument was drawn pursuant to the tentative agreement for that term and hence support the inference that the term of demise in the habendum clause was inserted merely to give a colorable right to terminate complainants’ lease.

1918(Morton v. Babb, 251 Ill. 488 ; Smith v. Tucker, 250 id. 50.) This rule, however, does not apply and cannot control where the granting clause does not definitely describe the estate granted and where there is a habendum clause which does define the estate intended to be conveyed.

1906(Beacroft v. Strawn, 67 Ill. 28 .)“ So that whether the habendum clause be considered repugnant to the granting clause, and therefore rejected, or whether it be construed as limiting and defining the granting clause, if the word “children” be construed not to mean “heirs,” and therefore not conveying an estate in tail, the ruling of the county court must be upheld.

1906The word “children,” however, when the context requires it in order to carry out the intent of the testator or grantor, has been construed to mean “heirs.” In Sweet-apple v. Bindon, 2 Vern. 536, (quoted in 1 Preston on Estates, 409,) it was held that where there was a gift by will, to be laid out by the testatrix in lands and settled to the use of the daughter, Mary, and her children, and if she died without issue, then over, “the court must take the will as - they found it; that Mary had an estate tail in the lands to be purchased.” Lord Hardwick is quoted as having said in discussing this qu