#### EVAN S. HOWELL & AL. *vs.*HENRY HOWELL & AL.

Where there is a conveyance of chattels in immediate and absolute property, and there is in the same indenture a distinct personal covenant of the grantee, that the grantor shall have certain rises of the property during life, that ought not to be construed as a reservation of a life estate, but taken as a covenant merely ; chiefly, because ¿he granting part of the instrument would otherwise be made void, and thus the whole contract become of none effect.

All instruments, made at the same time and relating to the same subject, may be treated but as one and construed together, where this is necessary to effectuate the intention, and the provisions of the instruments, so put together, will not be incompatible.

But when contracts are put into several instruments, each of which has a sensible meaning, and may have a full operation by itself, they ought not to be put together for the purpose of making them mean, as one, differently from what they could in their separate state, and especially when the effect of such consolidation would be to avoid an essential part of the contract.

Appeal from the Superior Court of Law of Haywood County, at the Spring Term, 1846, his Honor Judge Peaeson presiding.

This is an action of trover for a mare, negro Jack, and several horses, cattle, and other goods, and was tried on the general issue.

The defendant, Henry Howell, owned all the articles, and on the 1st day of July, 1843, in consideration of natural love and affection, and of the sum of §300, he conveyed them, and also a tract of land, by two deeds, to his three sons, who are plaintiffs in this action.. At the same time the plaintiffs gave their father an obligation in the penal sum of §1,000, with conditions as follows: “The conditions of the above obligation are such, that whereas the said Henry Howell hath sold all his property — see deed for land, and bill of sale for negro, stock, and property — and now we, N. G. Howell, &c. for the love we have for our father, do put into his possession a certain negro, named Jack, one grey horse,” [and sundry other *494horses, cattle, sheep, hogs, crops of wheat, corn, rye, oats . — as conveyed to them] *“*that is on the plantation, where the said Henry lives ; and he the said Henry is to continue in possession of all the aforesaid property during his natural life by taking good care of the same, or as long as he may remain on the same place, for him to make the necessary support of life: Nevertheless, it is expressly understood, that the said Henry is not to remove any part of this property off the premises, that the said Henry now lives on, without consent of the said N. G. Howell áre. neither to hire nor lease said property without consent of the said N. G. Howell &c.: and it is further understood, that, when the said Henry is so unable by any infirmity to support himself and property, *the*said property is to be surrendered up to the said N. G. Howell áre. and we are to support our father in sustenance during his natural life, provided the said Henry will live with his children: and none of the property is to be removed more than eight miles from the premises the said Henry now lives on, then all the said property together with the said land and negro, to be surrendered to the said N. G. Howell &c. at the instant the said property is removed — ■ then this obligation, áre.”

Also at the same time the father, Henry Howell, gave to the plaintiffs his obligation in the sum of $1,000 with conditions, “ that the said Henry do well and truly take care of the farm and all the premises that he now lives on, áre. take good care of a negro named Jack, and all the stock and property that I, Henry Howell sold to N. G. Howell, &c.: and I do bind myself that I will not remove said property, nor hire nor lease the same to any person, without the consent of said N. G. Howell áre. and, if I should, the aforesaid property is to go into possession of said N. G. Howell &c. and I am to be dispossessed of any benefit of said property.”

On the 28th of September, 1843, Henry Howell conveyed to the defendant, Battle, the land, and all the personal *495property, now sued for, by deeds, purporting to convey the land in fee, and personalty absolutely. The plaintiffs thereupon demanded possession from the defendants, and after a refusal, brought this suit.

The Court instructed the jury, that the legal effect of the deed, executed by the plaintiffs, taken in connexion with the other deeds which were executed at the same time, was to give Henry Howell an estate for life in the negro and other chattels: and that the life estate amounted to the absolute property in all except the negro, and therefore, that as to them this action could not lie : And as to the negro the Court charged, that by the deed Henry Howell had but a life estate, and that the reversion was in the plaintiffs; but that, nevertheless, they could not recover for him, because the condition, that said Henry should not remove, nor hire- him without the consent of the plaintiffs, was repugnant to his estate and void, and also because the performance, of that stipulation was secured by the obligation of the father for $1,000, instead of a provision for the re-vesting of the property in the plaintiff.

2V. *W. Woodfin,*and *Francis,*for the plaintiffs.

*Gaither,*and *Edney,*for the defendants.

Ruffin, C. J.

The Court is of opinion, that the construction put on the instrument given by the plaintiffs is erroneous. It is in form a personal obligation of the sons, under a penalty, that the father shall, upon certain terms, possess and enjoy the property as long as he will live on the land. The question is, whether it is to be taken according to its form and natural sense, or to be construed to be a reservation or conveyance of the legal estate, to the father for life. The true principle for the construction of all instruments, is that of effectuating the intention of the parties, if it can be" done. When there is but one instrument, the different parts ought to *496be reconciled, if possible, so as to make each separate, and the whole received in such a sense *ut res magis valecit, quam pereat.*If, indeed, a conveyance be made of chattels, to take effect after a life estate, or if the grantor of chattels expressly reserve a life estate, there is no helping the grantee, unless under some statute; because at the common law, nothing remained, after the life estate, to be conveyed. But if there be a conveyance of chattels in immediate and absolute property, and there be in the same indenture a distinct personal covenant of the grantee, that the grantor shall have certain uses of the property during life, that ought not to be construed as a conveyance, or rather a reservation of a life estate, but taken as a covenant merely; because it is in that form, which of itself, indicates the intention to a great extent; and chiefly, because the granting part of the instrument would otherwise be made void, and thus the whole contract become of none effect. Much more does a construction in support of all parts of the contract commend itself, when the different parts are put into separate, and apparently in different instruments. There is no doubt, that all instruments, executed at the same time and relating to the same subject, may be treated as forming but one and construed together. But that is not the natural construction, and is only resorted to in order to effectuate the intention, and where the provisions of the two instruments, if put together, will not be incompatible. Where contracts are put into several instruments, each of which has a sensible meaning and may have a full operation, by itself, it would be a hazardous assumption to put them together for the purpose of making them mean, as one, differently from what they could in this separate state. And, certainly, the Court can not do such violence to the intentions of the parties, and the language in which they are expressed, as to consolidate separate instruments, when the effect of doing so would be to avoid an essential part of the contract, and make an estate,intended to be granted, fail altogether.

*497Here the legal title of the land, negro and other chattels was conveyed to the plaintiffs by the deeds to them, taken in their natural import and by themseleves. The contract on the part of the sons purports to be a pecuniary obligation, with certain under-written stipulations to be performed as conditions. It was unquestionably intended, that the sons should have somé title in all and each of the things conveyed ; and the only way in which they can, is to vest the whole in them absolutely ; for they get nothing, if their grantor reserved a life estate. This is certainly so as to all the chattels except the negro; and that governs the construction, becau'se'it is conclusive of the intention as to them, and therefore as to the negro and land also, which are all included together in the condition, of the bond, and the same provision made as the whole. In this very case the Superior Court was obliged, upon the construction there adopted, to hold, that the grant to the sons of the perishable chattels was annulled *ah initio,*by the estate ibr life supposed to be reserved to the father. That seems to us to be an unanswerable argument against putting the obligation of the sons to the deed of the father ; for it not only modifies the operation of the latter, but, as to the chattels, defeats it entirely. In fine we do not see any reason, why either the obligation of the sons, or that of the father, in the same penalty, and importing to be personal contracts, should not enure as such merely; or why the former should be allowed to operate as part of the deed, made by the father, and thus defeat the estate granted therein.

Per Curiam. Judgment reversed and *venire de novo.*