habendum clause in Michigan

2014If a trust is created at all it is a naked or passive trust, which is defined to be “a trust in which the property is vested in one person upon trust for another, and the nature of the trust not being qualified by the settlor, is left to the construction of the law.” Passive trusts are abolished by statute in this State, but where a deed is so worded as to create a passive or naked trust our statute on uses and trusts executes it by forthwith passing the title to the beneficiary. [7<7. at 314 (citations omitted).] Were we to conclude that the granting and habendum clauses conflict, the habendu

2014If a trust is created at all it is a naked or passive trust, which is defined to be “a trust in which the property is vested in one person upon trust for another, and the nature of the trust not being qualified by the settlor, is left to the construction of the law.” Passive trusts are abolished by statute in this State, but where a deed is so worded as to create a passive or naked trust our statute on uses and trusts executes it by forthwith passing the title to the beneficiary. [7<7. at 314 (citations omitted).] Were we to conclude that the granting and habendum clauses conflict, the habendu

2014If a trust is created at all it is a naked or passive trust, which is defined to be “a trust in which the property is vested in one person upon trust for another, and the nature of the trust not being qualified by the settlor, is left to the construction of the law.” Passive trusts are abolished by statute in this State, but where a deed is so worded as to create a passive or naked trust our statute on uses and trusts executes it by forthwith passing the title to the beneficiary. [7<7. at 314 (citations omitted).] Were we to conclude that the granting and habendum clauses conflict, the habendu

2014If a trust is created at all it is a naked or passive trust, which is defined to be “a trust in which the property is vested in one person upon trust for another, and the nature of the trust not being qualified by the settlor, is left to the construction of the law.” Passive trusts are abolished by statute in this State, but where a deed is so worded as to create a passive or naked trust our statute on uses and trusts executes it by forthwith passing the title to the beneficiary. [7<7. at 314 (citations omitted).] Were we to conclude that the granting and habendum clauses conflict, the habendu

2014Darnell v Smith, 238 Mich 33, 37 ; 213 NW 59 (1927).

2014Darnell v Smith, 238 Mich 33, 37 ; 213 NW 59 (1927).

2005We conclude, therefore, that the easement conveyed by the 1873 deed is limited to railroad purposes. 44 Plaintiff maintains that the interest conveyed by the 1873 deed is not limited to railroad purposes, referring us to Quinn, supra, as support for its argument.

1954Vincent de Paul Society of Grand Rapids, 323 Mich 607 [6 ALR2d 815]; Singer v. Goff, 334 Mich 163 ); (4) the only purpose of rules of construction of conveyances is to enable the court to reach the probable intent of the parties when it is not otherwise ascertainable; Curran v. Maple Island Resort Ass’n, supra. Accordingly, the rule of construction that in case of repugnancy in a deed between its granting and habendum clauses the former controls (Smith v. Smith, 71 Mich 633 ) yields to a contrary holding if the habendum clause appears, from all the language of the instrument, to be in accord w

1954Vincent de Paul Society of Grand Rapids, 323 Mich 607 [6 ALR2d 815]; Singer v. Goff, 334 Mich 163 ); (4) the only purpose of rules of construction of conveyances is to enable the court to reach the probable intent of the parties when it is not otherwise ascertainable; Curran v. Maple Island Resort Ass’n, supra. Accordingly, the rule of construction that in case of repugnancy in a deed between its granting and habendum clauses the former controls (Smith v. Smith, 71 Mich 633 ) yields to a contrary holding if the habendum clause appears, from all the language of the instrument, to be in accord w

1954Vincent de Paul Society of Grand Rapids, 323 Mich 607 [6 ALR2d 815]; Singer v. Goff, 334 Mich 163 ); (4) the only purpose of rules of construction of conveyances is to enable the court to reach the probable intent of the parties when it is not otherwise ascertainable; Curran v. Maple Island Resort Ass’n, supra. Accordingly, the rule of construction that in case of repugnancy in a deed between its granting and habendum clauses the former controls (Smith v. Smith, 71 Mich 633 ) yields to a contrary holding if the habendum clause appears, from all the language of the instrument, to be in accord w

1954Plaintiff urges that the 3-year provision of the lease, as interpreted by defendants, is repugnant to its preceding habendum clause fixing the .term of the lease at 10 years, and, in that connection, directs attention to the rules of construction that: (1) when an instrument contains 2 conflicting provisions the first controls; Klever v. Klever, 333 Mich 179 ; (2) the habendum clause in a lease dominates the period for which it shall run unless it is. properly modified by other provisions; J.

1947Hodges v. Buell, supra; Austin v. Brown, 191 N. C. 624 ( 132 S. E. 661 ). * * * We think the timber under this deed was so far cut and removed from the premises upon which it stood as not to be -affected by the doctrine governing estates in reversion, that it was personal property, and, as such, the title thereto was vested in the purchasers thereof.

1947Hodges v. Buell, supra; Austin v. Brown, 191 N. C. 624 ( 132 S. E. 661 ). * * * We think the timber under this deed was so far cut and removed from the premises upon which it stood as not to be -affected by the doctrine governing estates in reversion, that it was personal property, and, as such, the title thereto was vested in the purchasers thereof.

1947The parts of that lengthy opinion which are of value to us in the case at bar are found on pages 442, 443 and 444 and are as follows, beginning on page 442: “The habendum clause of the deed provided: “ ‘ To have and to hold said timber until the said first day of April, 1924, unto said party of the second part an$ its assigns, provided however, that all timber standing on said lands on the first day of April, 1924, shall be and become the property of the first parties as their respective interests may appear” *636 Further, on page 443: “Plaintiffs claim the logs and forest products cut from st

1947Rep. 713 ) ; Hodges v. Buell, supra; Austin v. Brown, supra.” The habendum clause in the deed in the Kerschensteiner Case greatly differs from the agreement in the case at bar.

1945However, the granting clause does not purport to convey the property to the parties of the second part “jointly,” nor does the habendum clause provide that they are to have and to hold the said premises “jointly.” The granting and habendum clauses are consistent with plaintiff’s theory that Gilbert and Johannes Taylor took the property as tenants in common. *545 “Where there is a doubt as to the meaning of an instrument, the courts will consider the situation of the parties, the subject matter, and the acts, conduct, and dealings of the parties with respect to the instrument.” Negaunee Iron Co

1945“Where a conveyance or deed to two or more persons does not state the interest of each, their estates are presumed to be equal: but the presumption may be rebutted by proof.” Hill v. Reiner (syllabus), 167 Mich. 400 .

1920The supreme court of Arkansas, in Sutton v. Sutton (Ark.), 216 S. W. 1052 , as recently as December, 1919, held that an instrument in the form of a warranty deed, headed “warranty deed” and referred to in the body of the instrument and in acknowledgment as a “deed” conveying land to grantee, “and unto his heirs and assigns forever,” was a deed and not a will, notwithstanding the habendum clause making the deed inoperative prior to the grantor’s death.

1897In Bassett v. Budlong, 77 Mich. 338 , a quitclaim deed from a husband purporting to convey to his wife, and to her heirs and assigns, forever, the farm on which they resided, but which was declared to be upon certain express conditions and reservations following the habendum clause, viz.: (a) That the grantee should not convey or mortgage the land during the lifetime of the grantor without his written assent or his joining in the conveyance; (6) that, in case of the death of the grantee prior to the grantor’s decease, the land should revert to him and his assigns,— was held not to convey the l