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Grayson v. Holloway

Citation. 22 Ill.203 Tenn. 464, 313 S.W.2d 555 (1958)
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Brief Fact Summary.

There was a conflict between clauses in a deed when the granting clause of the deed listed the only grantee as the husband, and the “habendum” clause named grantees to be husband and wife, their heirs and assigns forever, which would have created a tenancy by the entirety.

Synopsis of Rule of Law.

The court found that the lower court had a duty to construe the deed by giving effect to all its parts and thus determine the true intent of the grantors.


A.J. Holloway and Manervy Holloway, husband and wife, were elderly and needed someone to care for them. They invited G.P. Holloway and his wife Mae Holloway (Plaintiffs) to come live on their farm and care for them. The elder Holloways made a deed to the seventy acres to “G.P. Holloway to take care of the said A.J. Holloway and Manervy Holloway as long as they live and at their death to pay all funeral and burial expenses, and said deed is to become a warranty deed.” This was the consideration portion of the conveyance. The “habendum” clause was “To have and to hold the same to the said G.P. Holloway and wife Mae Holloway and their heirs and assigns forever.” Thus, there was a conflict between the conveyance portion and the habendum clause. The Plaintiffs in this action are lawful heirs of G.P. Holloway, now deceased, and that Mae Holloway (Defendant), the widow of G.P. Holloway. The Plaintiffs allege that under the deed they own the fee simple title to the land in question su
bject to homestead and dower of the Defendant. They requested a partition by sale of the property. The Defendant filed an answer and cross-bill claiming that she is entitled to more than just dower and homestead. She contended that the original deed conveyed fee simple to herself and her late husband G.P. Holloway, as tenants by the entirety, and she survived her husband to take in fee simple. The Defendant charged that she was part of the consideration for the deed from the elder Holloways insofar as she was to perform household chores. The lower court held that the habendum clause was repugnant to the granting clause and that the granting clause conveyed fee simple title to G.P. Holloway alone. The lower court ruled that the granting clause was to prevail over the habendum clause and rendered judgment for the Plaintiffs. Defendant appealed.


Did the deed convey fee simple to both G.P. Holloway and his wife, Defendant as tenants by the entirety?


Yes. The facts showed a joint undertaking by Defendant and her husband.
The lower court gave no consideration to the intent of the parties.
The court found that the lower court had a duty to construe the deed by giving effect to all its parts and thus determine the true intent of the grantors.
The court found that the deed vested in G.P. Holloway and wife, Defendant Mae Holloway, an estate as tenants by the entireties because the grantors contemplated that both of the grantees would render personal service.
The court found that it would be unusual for the grantors to contemplate that their son alone could perform all the necessary tasks to take care of them.


The extrinsic evidence in this case supplied the necessary grounds for the court to find that the grantors intended to grant their land to their son and his wife. Consider the rule regarding the statute of uses discussed in French v. French, which held that the operation of the statute of uses is to create a fee interest in one who shall have the use of the land of another where there has been some pecuniary consideration for the conveyance of land from the grantor to the grantee. The statute of uses unites the possession of land to the use of land and creates a seisen in fee when the use is raised. Could the court have also found that a use had arisen in favor of the son and his wife?

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