THE STATE OF
In The Court of Appeals
Kenneth E. Bennett, Richard K. Bennett, James M. Hendershot, and Robert N. Parker, III, Plaintiffs,
Investors Title Insurance Company, Defendant.
Investors Title Insurance Company, Appellant,
Crescent Resources, LLC; Bristol, LLC and CBS Surveying & Mapping, Inc., Defendants,
Of Whom Crescent Resources, LLC is the Respondent.
James C. Williams, Jr., Circuit Court Judge
Opinion No. 4153
Heard September 9, 2006 – Filed September 25, 2006
Louis H. Lang, of
Columbia, for Appellant.
Benjamin A. Johnson and Stephen A. Cox, both of
Rock Hill, and V. Clark Price, of Greenville for Respondent.
ANDERSON, J.: In this indemnification action, Investors Title Insurance Company appeals the circuit court’s grant of summary judgment to Crescent Resources, LLC. On appeal, Investors argues the circuit court erred in failing to hold Crescent liable for an alleged breach of a deed covenant. We affirm.
On December 28, 2001, Crescent conveyed 47.82 acres of real property in
The habendum clause of the Deed reads, in pertinent part:
TO HAVE AND TO HOLD all and singular the Property, unto the said Grantee and Grantee’s heirs, successors and assigns forever, except:
. . . .
(5) matters affecting title to the Property as shown on the Plat or which would be shown on a current and accurate survey of the Property (including any encroachments);
(6) easements, covenants, restrictions and conditions of record, and rights-of-way of public and private streets and roads, including, but not limited to, the road shown on the Plat as “old road bed” and the sixty-six (66) foot wide road right-of-way shown on the Plat as “SC 188 Keowee School Road (66’ R/W)” . . . .
The Deed further provides Crescent “covenants to warrant specially the title to the Property against the lawful claims of any person claiming from, through, or under it.”
Later on the same day,
Plaintiffs developed the Property and built two brick walls at the entrance near Highway 188. The South Carolina Department of Transportation (SCDOT) notified Plaintiffs the walls had been built within SCDOT’s right-of-way. The right-of-way easement, dated August 1, 1968, and recorded at SCDOT, shows Crescent granted a 200 foot right-of-way for Highway 188 to SCDOT. See S.C. Code Ann. § 57-5-550 (2006) (directing all rights-of-way for state highways be filed at SCDOT).
After Plaintiffs notified Investors of a possible title insurance claim, Investors offered Plaintiffs $64,000 to settle the claim. Plaintiffs accepted the $64,000 in settlement of its claim for actual damages, leaving a claim for consequential damages outstanding. Having failed to fully settle the claim, Plaintiffs filed a complaint against Investors on June 26, 2003, alleging breach of the title insurance contract and bad faith. Investors answered the complaint and later filed an amended answer, adding a third-party complaint against Crescent,
In its third-party complaint, Investors sought indemnity from Crescent, alleging it breached the special warranty clause in the Deed. Moreover, Plaintiffs later amended their complaint to allege a breach of the Deed’s warranty clause by Crescent and
Investors moved for summary judgment against Plaintiffs. Subsequently, Crescent moved for summary judgment against Investors and Plaintiffs. The circuit court granted Crescent’s motion for summary judgment against both Plaintiffs and Investors, holding exceptions (5) and (6) in the habendum clause of the Deed limited Crescent’s special warranty. Furthermore, the circuit court applied its ruling to Investors, finding Investors could not recover more than Plaintiffs.
Investors moved to alter or amend this order. The circuit court denied this motion but made minor factual corrections and entered an amended order. The circuit court also granted summary judgment to Investors against Plaintiffs. This appeal followed.
STANDARD OF REVIEW
When reviewing the grant of a summary judgment motion, the appellate court applies the same standard which governs the trial court under Rule 56(c), SCRCP: summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. David v. McLeod Reg’l
Summary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law. Gadson v. Hembree, 364 S.C. 316, 320, 613 S.E.2d 533, 535 (2005); Miller, 365 S.C. at 220, 616 S.E.2d at 729;
The party seeking summary judgment has the burden of clearly establishing the absence of a genuine issue of material fact. Jones v. State Farm Mut. Auto. Ins. Co., 364 S.C. 222, 228, 612 S.E.2d 719, 722 (Ct. App. 2005). The moving party may discharge the burden of demonstrating the absence of a genuine issue of material fact by pointing out the absence of evidence to support the nonmoving party’s case. Lanham v. Blue Cross and Blue Shield of South Carolina, Inc., 349 S.E. 256, 361, 563 S.E.2d 331, 333 (2002). Once the party moving for summary judgment meets the initial burden of showing an absence of evidentiary support for the opponent’s case, the opponent cannot simply rest on mere allegations or denials contained in the pleadings. Wogan v. Kunze, 366, S.C. 583, 591, 623, S.E.2d 107, 112 (Ct. App. 2005). The nonmoving party must come forward with specific facts showing there is a genuine issue for trial. Rife, 363 S.C. at 214, 609 S.E.2d at 568.
The purpose of summary judgment is to expedite the disposition of cases which do not require the services of a fact finder. Dawkins v. Fields, 354 S.C. 58, 69, 580 S.E.2d 433, 438 (2003); Eagle Container, 366 S.C. at 621, 622 S.E.2d at 738; Rumpf v.
Investors contends the circuit court erred in holding exceptions (5) and (6) in the habendum clause of the Deed limited Crescent’s special warranty. Investors argues: (1) the granting clause and its incorporation of the Plat created a representation or covenant of the width of SCDOT’s right-of-way; (2) exceptions (5) and (6) in the Deed’s habendum “cuts down” the fee simple estate conveyed in the granting clause, rendering the habendum repugnant to the granting clause; (3) the habendum and granting clause are inconsistent, making the Deed ambiguous; and (4) the Deed’s special warranty automatically protects Bristol and subsequent purchasers against claims created by Crescent; otherwise, the Deed would be a quitclaim deed. We disagree.
I. Construction of the Deed
The construction of a clear and unambiguous deed is a question of
law for the court.
“One of the first canons of construction of a deed is that the intention of the grantor must be ascertained and effectuated if no settled rule of law is contravened.” S. Ry. Co. v. Smoak, 243 S.C. 331, 336, 133 S.E.2d 806, 808 (1963); Wayburn v. Smith, 270 S.C. 38, 41, 239 S.E.2d 890, 892 (1977); Estate of Sherman, 359 S.C. at 413, 597 S.E.2d at 853; see also McDaniel v. Connor, 206 S.C. 96, 100, 33 S.E.2d 75, 76 (1945) (“As has many times been said, the governing principle in the construction of deeds is that the intention of the grantor, if consistent with law, shall govern.”). Moreover, in ascertaining such intention the deed must be construed as a whole, and effect given to every part thereof, if such can be done consistently with law. Wayburn, 270 S.C. at 42, 239 S.E.2d at 892; Bean v. Bean, 253 S.C. 340, 343, 170 S.E.2d 654, 655 (1969); Alexander v. Burnet, 39 S.C.L. (5 Rich.) 189, 196 (1851); see also First Carolinas Joint Stock Land Bank of Columbia v. Ford, 177 S.C. 40, 46, 180 S.E. 562, 565 (1935) (“Larger and more sensible rules of construction require that the whole deed should be considered together, and effect be given to every part, if all can stand together consistently with law . . . . ”).
II. The Deed’s Clauses
Initially, we address the legal effect of the clauses in the Deed. The term “premises” is used to refer to “all that part of [a] deed preceding the habendum clause, containing generally the names or description of the parties; explanatory recitals, including consideration and its receipt; a description of the realty; the exception, if any; and sometimes a designation of the estate or interest conveyed.” 26A C.J.S. Deeds § 35 (2001); see also Artis v. Artis, 47 S.E.2d 228, 232 (N.C. 1948) (“Ordinarily the premises and granting clauses designate the grantee and the thing granted, while the habendum clause relates to the quantum of the estate.”).
The First Carolinas Joint Stock Land Bank of
Columbia . . . [has] granted, bargained, sold and released, and by these presents [does] grant, bargain, sell and release unto the said [SCFC] and their successors in office all that certain piece . . . .
(emphasis removed); see also Estate of
The Latin phrase “habendum et tenendum” means “to have and to hold.” Black’s Law Dictionary 716 (7th ed. 1999). Thus, in Hunt, 358 S.C. at 567, 595 S.E.2d at 847, this court quoted the habendum clause in that deed: “To Have and to Hold all and singular the premises before mentioned unto the said [SCFC] and their successors in office, and assigns forever.” (emphasis removed); see also Smoak v. McClure, 236 S.C. 548, 549, 115 S.E.2d 55, 55 (1960) (“The
habendum clause is regular in form, as follows:
‘To have and to hold, all and singular, the said premises before mentioned unto the said Ben Garris, and his Heirs and Assigns forever.’ ”).
The habendum “is the clause usually following the granting part of the premises of a deed, which defines the extent of the ownership in the thing granted to be held and enjoyed by the grantee.” 26A C.J.S. Deeds § 36 (2001). Accordingly, in
The habendum in the Deed to
In Martin v. Floyd, 282 S.C. 47, 51, 317 S.E.2d 133, 136 (Ct. App. 1984), this court explained:
A South Carolina general warranty deed embraces all of the following five covenants usually inserted in fee simple conveyances by English conveyors: (1) that the seller is seized in fee; (2) that he has a right to convey; (3) that the purchaser, his heirs and assigns, shall quietly enjoy the land; (4) that the land is free from all encumbrances; and (5) for further assurances.
A grantor seeking to include all of the common law covenants of title may use the language in section 27-7-10 of the South Carolina Code to carry out this effect. The statute reads:
The following form or purport of a release shall, to all intents and purposes, be valid and effectual to carry from one person to another or others the fee simple of any land or real estate if it shall be executed in the presence of and be subscribed by two or more credible witnesses:
The State of
Know all men by these presents that I, A B, of __________, in the State aforesaid, in consideration of the sum of ___ dollars, to me in hand paid by C D of __________ County, State of __________, the receipt of which is hereby acknowledged, have granted, bargained, sold and released and by these presents do grant, bargain, sell and release unto the said C D all that (here describe the premises), together with all and singular the rights, members, hereditaments and appurtenances to said premises belonging or in any wise incident or appertaining; to have and to hold all and singular the premises before mentioned unto said C D, his heirs and assigns, forever. And I do hereby bind myself, my heirs, executors, and administrators, to warrant and forever defend all and singular said premises unto said C D, his heirs and assigns, against myself and my heirs and against every person whomsoever lawfully claiming or to claim the same, or any part thereof.
Witness my hand and seal this ___ day of __________ in the year of our Lord __________ and in the ___ year of the independence of the
. __________ [L.S.] United States of America
S.C.Code Ann. § 27-7-10 (Supp. 2005); see 17 S.C. Jur. Covenants § 32 (Supp. 2005). However, section 27-7-10 does not preclude the grantor from using other warranty language in a deed.
Section 27-7-10 shall be so construed as not to oblige any person to insert the clause of warranty or to restrain him from inserting any other clause in conveyances, as may be deemed proper and advisable by the purchaser and seller, or to invalidate the forms formerly in use within this State.
S.C. Code Ann. § 27-7-20 (Supp. 2005).
A “special warranty” is “[a] warranty against any person’s claim made by, through, or under the grantor or the grantor’s heirs.” Black’s Law Dictionary 1581 (7th ed. 1999). For example, the deed at issue in Knotts v. Joiner, 217 S.C. 99, 102, 59 S.E.2d 850, 851 (1950), “was a printed form but the warranty clause was so stricken with pen as to change it from the usual general warranty to a special warranty, that is, against the heirs of the grantor only.” A quitclaim deed, on the other hand, does not convey the fee, but only the right, title, and interest of the grantor. Martin v. Ragsdale, 71 S.C. 67, 77, 50 S.E. 671, 674 (1905).
III. Incorporation of the Plat
Investors’ initial argument that the incorporation of the Plat creates a representation or covenant of the width of SCDOT’s right-of-way completely ignores the habendum and warranty clauses.
“The question as to the purpose and effect of a reference to a plat in a deed is ordinarily one as to the intention of the parties to be determined from the whole instrument and the circumstances surrounding its execution.”
In Blue Ridge Realty Co. v. Williamson, 247 S.C. 112, 118, 145 S.E.2d 922, 925 (1965), our Supreme Court stated the general rule that when the owner of land has it subdivided and platted into lots and streets and sells and conveys lots with reference to the plat, he thereby dedicates said streets to the use of such lot owners, their successors in title and the public. See also Carolina Land Co., 265 S.C. at 105, 217 S.E.2d at 19. Thus, the purchaser of lots with reference to the plat of the subdivision acquired every easement, privilege and advantage shown upon said plat, including the right to the use of all the streets, near or remote, as laid down on the plat by which the lots were purchased.
A plat, however, is not an index to encumbrances, and the mere reference in a deed, as in this case, to a plat for descriptive purposes does not incorporate a notation thereon as to an easement held by a third party so as to exclude such easement from the covenant against encumbrances in the absence of a clear intention that it so operate.
Both Blue Ridge and
IV. The Habendum
Investors’ second contention that the habendum of the Deed is repugnant to or inconsistent with its granting clause is without merit. We recognize “when the estates given in the granting clause and the habendum of a deed are so repugnant to each other as not to be susceptible of any reasonable reconciliation, the granting clause will control and the habendum will be rejected as void.”
Investors essentially asserts SCDOT’s right-of-way, an easement, reduces the fee simple grant by the total acreage of the easement. This position directly contravenes established law in
‘An easement is a right which one person has to use the land of another for a specific purpose.’ Steele v. Williams, 204 S.C. 124, 28 S.E.2d 644; and ‘gives no title to the land on which the servitude is imposed,’ Morris v. Townsend, 253 S.C. 628, 172 S.E.2d 819. An easement is therefore not an estate in lands in the usual sense.’
Reading the Deed as a whole, the granting clause conveyed fee simple title in 47.82 acres of property to
V. Limitation of Special Warranty
Investors maintains the special warranty clause in the Deed automatically provides protection against prior encumbrances created by Crescent. To hold otherwise allegedly would render it a quitclaim deed. A special warranty binds the grantor and the grantor’s heirs. See Knotts v. Joiner, 217 S.C. 99, 102, 59 S.E.2d 850, 851 (1950). However, “[t]he grantor can, and often does, limit [covenants] so as to exclude existing encumbrances.” G.W. Thompson, Thompson on Real Property § 82.10(c)(3) (Supp. 2005); see § 27-7-20; see also Steele v. McRaney, 855 So. 2d 1114, 1122-23 (Ala. Civ. App. 2003) (finding language grantee would take “subject to” matters a survey or inspection of the property would have uncovered prevented grantee from prevailing in breach of deed covenant claim); Kamenar R.R. Salvage, Inc. v. Ohio Edison Co., 607 N.E.2d 1108, 1113 (Ohio Ct. App. 1992) (finding when a deed provides grantee would take subject to “the state of facts which a personal inspection or accurate survey would disclose,” grantee has no claim against grantor for power line easement).
Here, exceptions (5) and (6) in the habendum clause of the Deed limit Crescent’s special warranty to
We hold Crescent did not represent or covenant the width of SCDOT’s right-of-way by incorporating the Plat. Moreover, the habendum clause in the Deed is not repugnant to or inconsistent with the grant. Concomitantly, the habendum is not void, and the Deed is not ambiguous. The circuit court correctly held exceptions (5) and (6) of the habendum limited Crescent’s special warranty. Accordingly, the circuit court’s order is
KITTREDGE, J. and SHORT, J., concur.
 Crescent Resources, LLC conveyed the Property to
 This motion is not included in the record.