Stewart v. Warren, 202 Ark. 873, 153 S.W.2d 545 (1941)

July 14, 1941 · Arkansas Supreme Court · 4-6437
202 Ark. 873, 153 S.W.2d 545

Stewart v. Warren.

4-6437

153 S. W. 2d 545

Opinion delivered July 14, 1941.

Ned Stewart and Paid Jones, for appellant.

Searcy & Searcy, for appellee.

Griffin Smith, C. J.

The appeal is from a decree finding* that in the granting clause of a deed the estate conveyed was not limited, but that a limitation in the habendum should be given effect. Appellants deny there was an intent to delimit and seek to invoke the rule of repugnancy, to the end that “forever,” used in the deed’s granting clause, be held to control.

*874The grant to W. D. Stewart, his heirs and assigns forever, 1 was an undivided half interest in oil, gas, and other minerals pertaining to the land in question. The deed is shown in the second footnote.2

A printed form was used. In the habendum, as it appears in the original deed, “forever” has been marked through and “for the term of ten years” substituted.

The suit was one by appellees to reform the deed under claim that the ten-year limitation was agreed upon, but through error of the draftsman it was omitted from the granting clause. The court refused reformation, but held that ‘ ‘ consideration should be given to the intention of the parties as gathered from the face of the deed. ’ ’3

We agree with the chancellor. In Beasley v. Shinn, 201 Ark. 31, 144 S. W. 2d 710, 131 A. L. R. 1234, it was held that where an estate is definitely created in the granting clause of a deed, and in the habendum there is express language reserving mineral rights, the latter con*875dition will not be construed as a limitation upon the first estate, but rather as an agreement of the parties that the preceding estate was subject to the reservation. It was further said that reservations of mineral rights are so often attempted to be expressed in the habendum that it is not just to apply the technical rule of apparent limita- ■ tion on the prior grant where mineral interests are excluded by subsequent' language. Rather, consideration should be given the intentions of the parties as gathered from the entire document.

It is true that in the Beasley-Shinn Case the holding was confined to the particular facts there stated; but in principle the case at bar is not dissimilar. The estate created by terms utilized in the granting clause (“forever” being nominative of time) was a fee. In modern conveyancing the habendum ordinarily amounts to a useless form. It is commonly used to repeat the name or names of the grantee or grantees, as set forth in the granting clause, to describe the estate conveyed, and to what use. If in other parts the deed is complete, the office of an habendum is sterile. If, however, grantor and grantee choose to utilize it to explain what estate is intended, and this is done in a manner sufficiently clear to impart to reasonable minds what the parties intended the conveyance should mean, there is no reason the contract thus consummated should be judicially disregarded in order that a technical rule may be reverentially • embraced as it totters under the weight of antiquity.

It is finally insisted that appellees are barred by laches. Maloch v. Pryor, 200 Ark. 380, 139 S. W. 2d 51. The case is not applicable; nor was it the duty of appellees to ask for reformation until the limitation upon which they relied was questioned.

Affirmed.