#### *Humphrey v. Foster *&*Wife.

January Term, 1857,

Richmond,

i. Deeds — Construction of — Case at Bar.* — A deed conveys land to the grantee forever, to hold for life. As the premises would only convey a fee by vir-tue of the statute, and by the statute the whole deed is to be looked to to ascertain what estate is *255intended to "be passed, the *habendum*in this deed is not void, but only a life estate passes by the deed.†

■2. Chancery Practice — Bill for Partition — Prayer for General Relief.‡. — On a bill claiming1 a share of a tract of land, and asking for a partition, and for general relief, the plaintiffs right to partition being established, under the prayer Ifor general relief there may be a decree for an account of rents and profits.

*3.*Appellate Practice — Errors in Decree for Account— HOw Corrected.§— Errors in the details of a decree for an account are not a proper subject for appeal and correction in the appellate court; but they may be corrected by exceptions to the coin-missioner's report.

By deed bearing date the 23d of June 1820, Bdmund Humphrey, in consideration of natural love and affection, and for divers other good causes and considerations, granted to his wife Elisabeth Humphrey forever, the tract of land on which he lived, and apparently all his personal property. To have and to hold and enjoy all and singular the said lands, goods and chattels for life. Mrs. Humphrey survived her husband and lived until 1843 or 1844. She held the land, &c. in possession; and in July 1842 she executed a deed, by which she, for natural love and affection and one dollar, ■conveyed the land to her grandson William H. Humphrey, reserving to herself the possession during her life.

After the death of Mrs. Humphrey Thomas Roster and his wife, who was a daughter of Edmund Humphrey, *filed their bill in the circuit court of Eouisa county, against William H. Humphrey and the other heirs of Edmund Humphrey, in which they set out the deed to Mrs. Humphrey, which they charged gave her but an estate for life, her death, and that the land had been since that time in the possession of the defendant William H. Humphrey, who had taken the rents and profits to his own use. And the prayer of the bill was for a partition of the land; and for general relief.

William H. Humphrey demurred to the bill, and also answered, insisting that Mrs. Humphrey took a fee in the land; and that she had conveyed the same to him.

Upon the hearing in September 1853, the court overruled the demurrer, and held that Mrs. Humphrey took but a life estate in the land; and made a decree directing a commissioner of the court to take an account of the rents and profits from the end of the year in which Mrs. Humphrey died to the end of the year 1854. Erom this decree William H. Humphrey obtained an appeal to this court.

John G. Williams, for the appellant, insisted :

1st. That the conveyance being to Elizabeth Humphrey forever, she, by the operation of the act of 1785 dispensing with words of limitation, took a fee: And therefore the habendum for life being repugnant to the grant, is void. Baldwin’s Case, 2 Coke’s R. 18 and 23. That this was the doctrine of all the old authorities; and it has not been denied by the *modern*cases; but a distinction has been taken. Thus where a conveyance is to A and his heirs, habendum to A and the heirs of his body, the habendum is held to be valid as not being inconsistent with the grant. Good-title ex dem. Dodwell v. Gibbs, 12 Eng. C. B. R. 359; Doe ex 'xdem. Timmiss v. Steel, 45 Eng. C. B. R. 662; Ingram v. Porter, 4 McCord’s R. 198; S. C. 1 Harper’s R. 492 ; 3 Gill’s R. 198; 2 Bom. Dig. 215 marg.

2d. He submitted the question as to the propriety of the decree for an account, under the pleadings in the cause.

Holladay, for the appellee, upon the last point said there was a prayer for general relief, and that would authorize the decree for account.

Upon the first point made by the counsel for the appellant, he admitted that the old rule was as it had been stated. That rule is that where the conveyance clearly in technical language convej’s a fee, the habendum for life -is repugnant and void. But according to the rules of the common law the word “heirs” is necessary to convey a fee; and the rule was founded on the idea that there were two intents clearly expressed, and that the latter was therefore void. But if the *256premises did not convey a fee by clear technical language, the habendum was not void.

In this case the deed would not pass the fee at common law; and we must therefore look to the whole instrument to ascertain the intent of the grantor. Our statute which dispenses with words of limitation, leaves the intent to be ascertained' from the whole deed. And the authorities cited on the other side show that where the premises and the habendum can stand together they will be so construed. 2 Eom. Dig. 217. Here the deed on its face shows that the grantor only intended to give an estate for life.

*

Deeds — Construction of. — For the proposition that, in the construction of a deed under the statute (1 Rev. Code 18Í9, ch. 99, sec. 27), the whole deed should be looked to in order to ascertain the intention of the grantor, and consequently what *255estate was intended to be granted, the principal ease is cited and followed in Mauzy v. Mauzy, 79 Va. 538; Bank of Berkeley Springs v. Green, 45 W. Va. 171, 174, 31 S. E. Rep. *261, 262.*

See Code of Ya. 1887. sec. 2430; Code of W. Ya., ch. 71. sec. 8.

In Blair v. Muse, 83 Va. 240, *2 8.*E. Rep. 31. it is said, tliat Humphrey v. Foster, 13 Gratt. 652, is not in conflict with the case under consideration, in which case there were two clauses, irreconcilable and repugnant, and it is held that the last was invalid and the first would prevail.

†

See Judge Aiden's opinion for the statute.

‡

Chancery Practice — Bill for Partition--Prayer for «General Relief. — For the proposition that, on a bill asking for partition and for general relief, the right to partition being established, under the prayer for general relief there may be a decree for an account of the rents and profits, the principal case is cited and followed in Sturm v. Chalfant, 38 *W.*Va. 253, 18 S. E. Rep. 453; Rust v. Rust, 17 W. Va. 907.

See, in accord, Pickens v. Kniseley, 36 W. Va. 794, 15 S. E. Rep. 997.

§

Appellate Practice — Errors in Decree for Account-How Corrected. — In Rust v. Rust, 17 W. Va. 912. it is said: “Errors in the details of a decree for an account are not a proper subject for an appeal and correction in the appellate court; but they may be corrected by exceptions to the commissioner’s report. Humphrey v. Foster, 13 Gratt. 653. Of course this means by proper and sufficient exceptions. And on this subject, see McCarty v. Chalfant, 14 W. Va. 531, 558, 559."

The principal case is quoted with approval in Hyman v. Smith, 10 W. Va. 318.

See generally, monographic *note*on “Commissioners in Chancery'’ appended *to*Whitehead v. Whitehead, 23 Gratt. 376.

AEEEN, P.

At the common law, the words “heir's” was necessary to.create a fee simple in all feoffments and grants to natural persons, and conveyances to natural persons taking effect as transfers of the legal estates by the operation of the statute of uses. *Eittleton, fj1; bom. Dig. 218, m; 4 Kent’s Com. 5. And as deeds are to be taken most strongly against the grantor, when by the premises an estate is conveyed to one and his heirs habendum to him for life, the habendum is repugnant and void, as it cannot perform the office of devesting an estate alreadjr vested by the premises. 2 Horn; Dig. 216; 4 Kent’s Com. 468.

These familiar doctrines have not been controverted in argument; but their application to the present case is denied. E. Humphrejr by his deed of the 23d of June 1820 conveyed to his wife forever certain “lands and other property, to have and to hold and enjoy all and singular the said lands, goods and chattels for life.” Elizabeth Humphrey, by deed of the 19th of July *1842,i*conveyed the land in controversy to the appellant in fee; and afterwards departed this life. And the question in the case is, Whether by the deed from her husband she took an estate for life or in fee simple? At the common law the estate would have been for life, as the word heirs was wanting; for says Eittleton, f 1, If a' man purchase lands by the words “to have and to hold to him forever,” he hath but an estate for term of life, for that there lack these words (heirs) which words only make an estate of inheritance in all feoffments and grants. By our statute, 1 Rev. Code, ch. 99, 27, p. 369, in force at the date of this deed, it is enacted, “'that every, estate in lands, which shall hereafter be granted, conveyed or devised to one, although other words heretofore necessary to transfer an estate of inheritance be not added, shall be deemed a fee simple, if a less estate be not limited by express words, or do not appear to have been granted, conveyed or devised by construction or operation of law.” In viirtue of this clause the grantee in the deed under consideration would have taken a fee simple if the words in the premises stood alone. But it could be treated as a fee simple in virtue of the statute only, and by *the statute the whole deed must be looked to for the purpose of ascertaining whether there is any qualification or limitation upon the generality of the first provision; for such a deed can only operate to convey the fee simple if a less estate be not limited by express words, &c. In the present case we perceive by the habendum that an estate for life was expressly limited ;■ and as the object under the statute is to-ascertain what estate was (intended to be granted by the deed, if a less estate than a fee is limited .by express words in any part of the deed, it must control and qualify the general words used in the premises. I think, therefore, the deed from E. Humphrey conveyed but a life estate to, his wife.

As to the second error assigned, that no account for rents and profits having been specifically asked in the bill none should have been ordered, it is sufficient to say that the bill contained the usual prayer for general relief, and a recovery of rents and profits would in general be incident to the recovery of the land". .As to (the details of the order of accounts, the decree is interlocutory, and all objections as to the time of commencing the said account or terminating it may be raised upon exceptions to the report. The appellant will not be precluded by the order directing the account from presenting such objections by exceptions to the commissioner’s report.

I think the decree should be affirmed.

The other judges concurred! in the opinion of Allen, P.

Decree affirmed.