The return for taxation by W. F. Winecoff, in which the identity of the realty is set forth, shows that the return was made by Winecoff, not as owner, but as lessee. The tax deeds by their express terms conveyed only such interest as the lessee had; that is, the deeds were in legal effect a conveyance of the leasehold. No one could question the fact that a leasehold of more than five years constitutes an estate in land. That such an estate is taxable, could be returned for taxes, and sold for taxes, would seem clear. Accordingly, while I agree to much of the reasoning of the opinion, I can not concur in those portions which seem to adjudicate that the grantees, claiming under these tax deeds, acquired a full fee-simple title to the realty involved. That the fee might have been levied upon, sold, and conveyed is not the question; but the question is, was it conveyed? The first clause in the tax deed to the county, identifying the property, and conveying it in mere general terms, is descriptive in character; the subsequent clause, which is the only portion of the deed dealing with the particular subject of what quantum of estate was intended to be thus conveyed, expressly limits and defines it to such interest as was held by the named lessee. This specific limitation upon the quantum of the estate conveyed should take precedence over any antecedent language conveying and describing the property in general terms. If the granting clause had undertaken to define the quantum of the estate conveyed, a different question might be *Page 86 presented, since it has been recognized as a general rule that the granting clause will be given effect over inconsistent terms in the habendum clause. See 16 Am. Jur. 566, § 232. This same authority, however (§ 237), sets forth what it terms the "modern liberal rule giving effect to intention as derived from all portions of the instrument." This so-called "modern" rule is stated as being widely accepted. But irrespective of any variation between the original and this so-called "modern" rule, it is laid down by this same authority (§ 239) as the uniform rule, almost without exception, that the specific terms in the habendum clause will control over a granting clause merely general in character. Since the tax deed to the county did not by its granting clause purport in terms to convey the property in fee-simple, or otherwise in any way specifically describe the quantum of the estate conveyed, it would seem that what has been stated by this authority as the general rule followed almost universally would have application. The first paragraph of § 239 is as follows: "Since the purpose of the habendum has, from early times, been to limit, explain, or qualify the estate limited in the granting clause, it is, almost without exception, held that where the granting clause is general and does not contain words of limitation or otherwise set forth a specific estate, the habendum will be given effect in explaining or qualifying what estate was intended. This rule is of uniform application both in the few States where words of limitation in the grant are still necessary in order to pass a fee and in the many States where it is provided by statute that a fee will pass without the use of words of limitation unless a contrary intention appears. Furthermore, the same result is reached both where the modern rule that the intention of the parties as derived from the whole instrument must control is applied, and where the old technical rule that the earlier of the two clauses must control applies." 16 Am. Jur. 573, and cit.
What has been said has reference to the tax deed to the county. As to the deed to the city there is no habendum clause, but the limitation as to the quantum of the estate conveyed was expressed in the conveying clause itself.
Chief Justice REID concurs in this dissenting opinion.