Kenneth E. BENNETT, Richard K. Bennett, James M. Hendershot, and Robert N. Parker, III, Plaintiffs, v. INVESTORS TITLE INSURANCE COMPANY, Defendant. Investors Title Insurance Company, Appellant, v. Crescent Resources, LLC; Bristol, LLC and CBS Surveying & Mapping, Inc., Defendants, Of Whom Crescent Resources, LLC is the Respondent

On December 28, 2001, Crescent conveyed 47.82 acres of real
property in Oconee County (the Property) to Bristol, LLC, for
$2.5 million. The deed from Crescent to Bristol (the Deed),
entitled "Special Warranty Deed," contains a granting clause
referring to an attached property description, which, in turn,
incorporates a plat (the Plat). CBS Surveying and Mapping, Inc.,
prepared the Plat for Crescent. The Plat shows a sixty-six foot
right-of-way, entitled "SC 188 KEOWEE SCHOOL RD (66' R/W)," on
the western boundary of the Property.

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, Bristol conveyed the Property by general
warranty deed to Kenneth E. Bennett, Richard K. Bennett, James M.
Hendershot, and Robert N. Parker, III, (collectively Plaintiffs),
for $2.85 million. On January 4, 2002, Plaintiffs procured from
Investors an owner's title insurance policy (the Policy) covering
the Property.

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.[fn1]
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,
Bristol, and CBS.

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
Bristol and negligence by CBS. Crescent filed separate answers
to Investors' third-party complaint and Plaintiffs' amended
complaint.

Investors moved for summary judgment against Plaintiffs.
Subsequently, Crescent moved for summary judgment against
Investors and Plaintiffs.[fn2] 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 Med. Ctr., 367 S.C. 242, 247,
626 S.E.2d 1, 3 (2006); Miller v. Blumenthal Mills, Inc.,
365 S.C. 204, 219, 616 S.E.2d 722, 729 (Ct.App. 2005). In
determining whether any triable issues of fact exist, the
evidence and all reasonable inferences must be viewed in the
light most favorable to the non-moving party. Law v. S.C.
Dep't of Corrections, 368 S.C. 424, 434, 629 S.E.2d 642,
648 (2006); Eagle Container Co., LLC v. County of
Newberry, 366 S.C. 611, 620, 622 S.E.2d 733, 737
(Ct.App. 2005). If triable issues exist, those issues must go the
jury. Mulherin-Howell v. Cobb, 362 S.C. 588, 595,
608 S.E.2d 587, 591 (Ct.App. 2005). Summary judgment is appropriate
if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law. Rule 56(c),
SCRCP; Law, 368 S.C. at 434, 629 S.E.2d at 648;
BPS, Inc. v. Worthy, 362 S.C. 319, 325, 608 S.E.2d 155,
159 (Ct.App. 2005). On appeal from an order granting summary
judgment, the appellate court will review all ambiguities,
conclusions, and inferences arising in and from the evidence in
a light most favorable to
the non-moving party below. Sloan v. Friends of Hunley,
Inc., 369 S.C. 20, 25, 630 S.E.2d 474, 477 (2006); see
also Schmidt v. Courtney, 357 S.C. 310, 317,
592 S.E.2d 326, 330 (Ct.App. 2003) (stating that all ambiguities,
conclusions, and inferences arising from the evidence must be
construed most strongly against the moving party).

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; Montgomery v. CSX Transp., Inc.,
362 S.C. 529, 608 S.E.2d 440 (Ct.App. 2004). Even when there is no
dispute as to evidentiary facts, but only as to the conclusions
or inferences to be drawn from them, summary judgment should be
denied. Nelson v. Charleston County Parks & Recreation
Comm'n, 362 S.C. 1, 5, 605 S.E.2d 744, 746 (Ct.App. 2004).
However, when plain, palpable, and indisputable facts exist on
which reasonable minds cannot differ, summary judgment should be
granted. Rife v. Hitachi Const. Mack Co., Ltd.,
363 S.C. 209, 214, 609 S.E.2d 565, 568 (Ct.App. 2005); Ellis v.
Davidson, 358 S.C. 509, 518, 595 S.E.2d 817, 822 (Ct.App.
2004).

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.C. 356, 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. Massachusetts Mut. Life Ins.
Co., 357 S.C. 386, 393, 593 S.E.2d 183, 186 (Ct.App. 2004).
Because it is a drastic remedy, summary judgment should be
cautiously invoked to ensure that a litigant is not improperly
deprived of a trial on disputed factual issues. Helena Chem.
Co. v. Allianz Under-writers Ins. Co., 357 S.C. 631, 644,
594 S.E.2d 455, 462 (2004); Wogan, 366 S.C. at 592,
623 S.E.2d at 112; B & B Liquors, Inc. v. O'Neil,
361 S.C. 267, 270, 603 S.E.2d 629, 631 (Ct.App. 2004).

LAW/ANALYSIS

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. Hammond v. Lindsay,
277 S.C. 182, 184, 284 S.E.2d 581, 582 (1981); Hunt v. Forestry
Comm'n, 358 S.C. 564, 568, 595 S.E.2d 846, 848
(Ct.App. 2004); see also Vause v. Mikell, 290 S.C. 65,
68, 348 S.E.2d 187, 189 (Ct.App. 1986) ("The construction of an
unambiguous deed is a question of law, not fact."). "`[I]t is
the duty of the court to construe deeds and determine their
legal effect, where there is no such ambiguity as requires parol
proof and submission to the jury.'" Hunt,
358 S.C. at 569, 595 S.E.2d at 848 (quoting 26A C.J.S. Deeds §
168 (2001)).

"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, 228 N.C. 754,
47 S.E.2d 228, 232 (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.").

In South Carolina, the term "granting clause" is used. This
court, in Hunt v. Forestry Comm'n, 358 S.C. 564,
566-67, 595 S.E.2d 846, 847 (Ct.App. 2004), referred to the
following language in a deed as the "granting clause:"

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 Sherman ex rel.
Maddock v. Estate of Sherman ex rel. Snodgrass,
359 S.C. 407, 409, 597 S.E.2d 850, 850-51 (Ct.App. 2004) (referring to
similar language in another deed as the "granting clause"). The
granting clause in Crescent's deed to Bristol incorporates an
attached property description which, in turn, incorporates the
Plat.

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 South Carolina, "the estate conveyed by the deed
must be determined from the whole deed including the habendum
clause." Batesburg-Leesville Sch. Dist. No. 3 v.
Tarrant, 293 S.C. 442, 445, 361 S.E.2d 343, 345
(Ct.App. 1987). Luculently, the habendum in the Deed is the
section beginning "TO HAVE AND TO HOLD . . ."

The habendum in the Deed to Bristol is followed by Crescent's
covenant to Bristol whereby Crescent "covenants to warrant
specially the title to the Property against the lawful claims of
any person claiming from, through, or under it." "The doctrine
of caveat emptor . . . has, in the absence of fraud and
misrepresentation long governed the obligations of the parties
in the sale of real estate in this State." Rutledge v.
Dodenhoff, 254 S.C. 407, 412, 175 S.E.2d 792, 794 (1970).
In South Carolina, the purchaser of unimproved land must
covenant to protect whatever special rights or interests he
presumes to acquire in the land. Jackson v. River Pines,
Inc., 276 S.C. 29, 31, 274 S.E.2d 912, 913 (1981); see
also 21 C.J.S. Covenants § 14 (1990) ("The
only protection of title afforded a purchaser of land is in the
covenants contained in the deed.").
Page 573

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 South Carolina.

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 United States of
America. __________ [L.S.]

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." Lancaster v.
Smithco, Inc., 246 S.C. 464, 468, 144 S.E.2d 209, 211
(1965). When a deed describes land as shown on a certain plat,
such plat becomes part of the deed for the purpose of showing
the boundaries, metes, courses and distances of the property
conveyed. Hobonny Club, Inc. v. McEachern,
272 S.C. 392, 397, 252 S.E.2d 133, 136 (1979); Carolina Land Co.,
Inc. v. Bland, 265 S.C. 98, 105, 217 S.E.2d 16, 19 (1975);
see also Holly Hill Lumber Co. v. Grooms, 198 S.C. 118,
135, 16 S.E.2d 816, 823 (1941) ("`As a general rule, when maps,
plats,
or field notes are referred to in a grant or conveyance they
are to be regarded as incorporated into the instrument and are
usually held to furnish the true description of the boundaries
of the land. . . .'").

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. Blue Ridge,
247 S.C. at 119-20, 145 S.E.2d at 925; Carolina Land Co.,
265 S.C. at 105, 217 S.E.2d at 19.

In Lancaster, 246 S.C. at 469, 144 S.E.2d at 211,
"[t]he only reference in the deed in th[e] case to the plat was
in connection with the description of the lot." Therefore, such
reference to the recorded plat made it a part of the deed for
the purpose of showing the boundaries, metes, courses and
distances of the property conveyed. Id. In that case,
our Supreme Court edified:

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.

Id. (emphasis added).

Both Blue Ridge and Lancaster looked to the
intention of the parties in incorporating a plat to determine
its effect. In the present case, a reading of the Deed as a
whole reveals the parties used the Plat as a reference to the
boundaries, metes, courses and distances of the property
conveyed. Crescent put the burden of obtaining an accurate
survey on Plaintiffs and excluded from its grant "matters
affecting title to the Property as shown on the Plat," matters
"which would be shown on a current and accurate survey of the
Property," and rights-of-way
of public streets and roads. Moreover, Investors does not
dispute that "[t]he actual dimensions and location of a highway
right-of-way are things that will be revealed by a current and
accurate survey of the property prepared by the surveyor."
Accordingly, we hold the intention of the parties in
incorporating the Plat, when discerned from the Deed as a whole,
was to show the boundaries, metes, courses and distances of the
property conveyed, rather than represent or warranty the width
of SCDOT's right-of-way.

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." Glasgow v. Glasgow, 221 S.C. 322, 327,
70 S.E.2d 432, 434 (1952). When the granting clause in a deed
purports to convey a fee simple absolute title, subsequent
provisions of the deed cannot diminish that granted or deprive
the grantee of the incidents of ownership in the property.
Shealy v. S.C. Elec. & Gas Co., 278 S.C. 132, 135,
293 S.E.2d 306, 308 (1982). In Porter v. Ingram, 16
S.C.L. (Harp.) 492, 493-94 (1824), the Constitutional Court of
Appeals of South Carolina held "when the premises are complete
and perfect and the habendum is at variance with them, and they
cannot stand together, the habendum is void." See also
Rhodes v. Black, 170 S.C. 193, 202, 170 S.E. 158, 161
(1933) ("Where the habendum is repugnant to or irreconcilable
with the grant, it will be rejected, and the grant will
prevail.").

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
South Carolina. In Douglas v. Med. Investors, Inc.,
256 S.C. 440, 445, 182 S.E.2d 720, 722 (1971), respondent
contended the reservation of an easement in a deed was
"repugnant to the fee simple title granted and is, therefore,
ineffective." Our Supreme Court noted:

`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.'

Id. Thus, the court held the easement in that case "in
no way cut down the fee simple estate conveyed" and, therefore,
"the reservation of the easement following the description in
the deed was not repugnant to the fee simple title conveyed in
the granting clause." Id. at 445-46, 182 S.E.2d at 722.

Reading the Deed as a whole, the granting clause conveyed fee
simple title in 47.82 acres of property to Bristol. The habendum
then 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). In the instant case, the
habendum is not repugnant to or inconsistent with the granting
clause. Therefore, we conclude the habendum is not void, and the
Deed is not ambiguous.

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., 79 Ohio App.3d 685, 607 N.E.2d 1108, 1113
(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 Bristol. Specifically, the
exceptions put Bristol and subsequent purchasers
on notice Crescent was not covenanting the Plat, matters which
would be uncovered by a current and accurate survey, or public
rights-of-way. In this respect, Crescent did not covenant the
Property would be free from all encumbrances. Instead, in
keeping with section 27-7-20, Crescent limited its covenant to
encumbrances not excepted through the habendum clause. The
circuit court did not err in finding exceptions (5) and (6) of
the habendum clause limited Crescent's special warranty.

CONCLUSION

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

AFFIRMED.