Opinion
5 Div. 848.
June 7, 1923.
Appeal from Circuit Court, Elmore County; B. K. McMorris, Judge.
F. Loyd Tate, of Wetumpka, for appellant.
The court erred in his construction of the deed and instructions to the jury in reference thereto. Slaughter v. Hall, 201 Ala. 212, 77 So. 738; Graves v. Wheeler, 180 Ala. 412, 61 So. 341.
Holley Milner, of Wetumpka, for appellee.
Words of the granting clause will prevail, where there is a conflict between that clause and the habendum. Dickson v. Van Hoose, 157 Ala. 459, 47 So. 718, 19 L.R.A. (N.S.) 719. Deeds of bargain and sale are construed more strictly against the grantor. Vandergrift v. Shortridge, 181 Ala. 275, 61 So. 897.
Suit by appellant against appellee to recover damages, consequent upon the cutting of timber on lands described in the deed executed by plaintiff to the defendant on April 24, 1920. The lands described in the first paragraph of the description are known as the Briscoe lands, and those in the second paragraph as the Stanley lands. The trial court, construing the language of this deed, instructed the jury that by the deed the fee-simple title passed to the Stanley lands, and the assignments of error relating to this construction of the deed constitute the only question presented upon this appeal.
As to this question counsel for appellee rely upon the rule found stated in Dickson v. Van Hoose, 157 Ala. 459, 47 So. 718, 19 L.R.A. (N.S.) 719, and other authorities cited in the recent case of Reynolds v. Reynolds, 208 Ala. 674, 95 So. 180, to the effect that the granting clause in a deed determines the interest conveyed, and that, unless there be repugnancy, obscurity, or ambiguity in that clause, it prevails over introductory statements or recitals in conflict therewith, and over the habendum, too, if that clause is contradictory of or repugnant to it. It is therefore insisted that the language used in the second paragraph of the description of the real estate indicates the conveyance of the fee-simple title to the land and not merely to the timber thereon, and that therefore this being a part of the granting clause it must prevail over any other provision of the deed; but the rule recognized in the foregoing authorities is not applicable, if there be obscurity or ambiguity or uncertainty in the language of the granting clause.
It is to be noted that in this clause the pine timber appears to be the prime object of the grant; the language of the deed being:
"Do hereby grant, bargain, sell and convey * * * all the standing pine timber that will measure twelve inches and over in diameter, twelve inches above the ground, on the following described lands in Elmore county, Alabama, to wit."
Then follows the description of what is known as the Briscoe lands. Following this, appearing as a separate paragraph, is the description of the Stanley lands. Had the word "on" followed the word "also" in this description, the intention of the grantor would have been unquestioned that he also intended to convey only the timber on this tract of land likewise. Immediately succeeding the description appear two paragraphs having particular reference to the right of the grantee to remove "certain timber," and expressly providing that, should he remove his mill from the premises his rights to go upon said lands for the purpose of removing said timber shall cease, and also providing for a right of way over the above-described lands for the purpose of removing said timber, with proviso that the grantee shall damage none of the crops.
We are therefore of the opinion that, considering the granting clause and the stipulations immediately succeeding the description, there is obscurity or ambiguity and uncertainty as to what was intended to be conveyed in the second paragraph, describing the Stanley land. We look, therefore, to the entire instrument, including the language of the habendum clause, for an explanation of the language used so as to determine the estate conveyed. Slaughter v. Hall, 201 Ala. 212, 77 So. 738; Graves v. Wheeler, 180 Ala. 412, 61 So. 341; 8 R. C. L. 1046; 2 Devlin on Deeds, § 840; note to Whetstone v. Hunt, 8 Ann. Cas. 443; 13 Cyc. 626 et seq.
Looking to the habendum clause, the language is, "To have and to hold the aforegranted timber," and each of the covenants as to possession and title refer only to the "aforegranted timber." Indeed, considering the entire language of the deed, it very clearly appears that the grantor only intended to convey the standing timber upon the real estate and not the realty itself. So construing the description in the second paragraph referring to the Stanley land, it is seen there is no repugnancy between any provisions of the granting clause and the habendum or other clauses in the deed, but they are harmonized. The strict technical rule, therefore, of Dickson v. Van Hoose, supra, is without application, and the trial court committed error in his construction of the deed.
Let the judgment be reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.