Wilkins v. Ferguson

JONES, Justice

(concurring specially).

I concur in the result, but I would find no necessity to search for the intention of the parties by looking to the four corners of the instrument. I see no ambiguity in the deed.

The reservation in the grantor of the option to repurchase is contained in the granting clause of the deed, often called the premises.1 Prudential Ins. Co. of America v. Karr, 241 Ala. 525, 3 So.2d 409 (1941) ; and there is, therefore, no repugnance between the granting clause and the habendum clause.

It is frequently stated that:

“One of the rules in the construction of deeds is that if there be two clauses which are utterly inconsistent with each other, and which cannot be reconciled or made to stand together, the last shall give way to the first, the maxim being ‘the first clause in a deed, and the last in a will shall prevail.’ Petty v. Boothe, [19 Ala. 633] supra.” Henry v. White, 257 Ala. 549, 60 So.2d 149 (1952).

But I see no inconsistency in the granting clause and any other clause in the deed involved here, so that, while I do not oppose it, I would see no necessity in this case to resorting to the more modern rule, which is said to disregard the technical rules of the common law relative to the division of deeds into formal parts, such as premises and habendum, and look to the entire deed for the purpose of ascertaining the intention of the parties. Thompson on Real Property, Vol. 7, § 3136.

SHORES, J., concurs.

. Tiffany, Real Property, Third Ed., § 502: “A carefully drawn conveyance usually consists of the following parts: First the names of the parties ... A statement of the consideration and of its payment and receipt follows, and, after this comes the operative words of conveyance followed by a deseription of the land conveyed and any exceptions or reservations. These elements constitute the ‘premises’ which is followed by the ‘habendum’ . . . which is usually introduced by the words ‘to have and to hold’ . .” [Emphasis supplied]