Biwer v. Martin

• Decision Date: 23 October 1920
• Docket Number: No. 13017.,13017.
• Citation: 294 Ill. 488,128 N.E. 518
• Parties: BIWER v. MARTIN et al.
• Court: Illinois Supreme Court

294 Ill. 488

128 N.E. 518

BIWER

v.MARTIN et al.

No. 13017.

Supreme Court of Illinois.

Oct. 23, 1920.

Suit by Peter M. Biwer against Glenn Martin and others. From decree for partition, defendants appeal.

Reversed and remanded, with directions.

Dunn and Duncan, JJ., dissenting.Appeal from Circuit Court, Logan County; T. M. Harris, Judge.

C. Everett Smith, of Lincoln, guardian ad litem, for appellants.

Covey & Woods, of Lincoln, for appellee.

STONE, J.

This case is brought to this court by appeal from the circuit court of Logan county, in which a decree was entered for partition of certain land described in the bill of complaint.

John B. Martin, being seized in fee of the land in question, on the 26th day of April, 1912, by warranty deed, after reserving an estate to himself for life, conveyed said land to his son, Zachariah Martin. The deed conveyed this property for the period of the natural life of Zachariah and the remainder to his widow, if she survived him, for the period of her natural life, and the remainder after the death of said widow to the lineal descendants of Zachariah surviving him, per stirpes, in fee. It further provided that--

‘If said Zachariah Martin leave no lineal descendants or descendant him surviving, then the remainder in said real estate shall vest, subject to said life estate of said widow, to such one or ones of lineal descendants of grantor as said Zachariah Martin may appoint by deed or will. In default of all lineal descendants of said Zachariah Martin him surviving and in default of appointment by him as aforesaid, said remainder after the death of said Zachariah Martin, subject to said life estate in said widow, shall vest in all the lineal descendants of grantor, per stirpes, in fee.’

The deed provided that the grantee, Zachariah Martin, take possession and pay a yearly rent. Upon execution and delivery of this deed Zachariah went into possession of said land, paid the rental to John B. Martin and the taxes each year, as therein provided, until the happening of certain events hereinafter enumerated.

Prior to the execution and delivery of the deed in question John B. Martin and his said son had signed certain judgment notes for the payment of a large sum of money. These notes were renewed from year to year for several years until default in their payment, whereupon the German-American National Bank of Lincoln, Ill., took judgment in the circuit court of Logan county on a day subsequent to the execution and delivery of the deed in question. Execution was issued on the judgment and levy made by the sheriff of said county on all the right, title, and interests of John B. and Zachariah Martin in and to the described land, and on sale of such interests under such execution the same were purchased by Fred W. Longan. No redemption was had from the sale of the estate of Zachariah Martin, and the sheriff issued a deed conveying the interest of said Martin in and to the real estate to Longan, except land set apart by commissioners as a homestead for Martin. After the expiration of 12 months from the date of the sale Fred Reinhardt, a judgment creditor, redeemed the interest of John B. Martin, which interest was again sold on execution and purchased by Reinhardt and a certificate of purchase issued to him. There was no redemption from this sale. The complainant, Peter M. Biwer, by mesne indorsements and assignments of the certificates became the owner and holder thereof, and upon presentation of the same to the sheriff a deed was issued to him conveying the estate of John B. Martin. On December 16, 1918, the complainant conveyed to Longan all of the estate for the life of John B. Martin which he had in and to said real estate, and the right, title, and interest in and to any rentals that were reserved by Martin in the deed to Zachariah Martin, in which deed it was stated that it was not the intent thereby to convey any part of the reversion in fee; that it was the intention of the parties that, if Longan ever acquired the reversion in fee in and to the premises, in such event the particular estate for life owned by the grantee should merge in the reversion in fee and all contingent and future interests extinguished. On December 17, 1918, appellee gave another deed to Longan, which recited that it conveyed all reversion in fee to said lands with like provisions as to merger and extinguishment. On December 18, 1918, Zachariah Martin and Blanche Martin, his wife, by warranty deed conveyed to Longan the homestead set off by the commissioners at the sheriff's sale, in which deed it was recited that it was the intention of the parties that, if the estates conveyed met with a reversion in the hands of the grantee, the same should merge and be prematurely destroyed, and all contingent and future interests extinguished. On the same day said Martin and his wife by quitclaim deed conveyed to Longan all their right, title, and interest in the land described in the deed from John B. Martin to Zachariah Martin, with like recitals as to merger and destruction of remainders. On the same day said Longan and his wife reconveyed said premises to Zachariah Martin by quitclaim deed, and thereafter on the same date said Martin and his wife by warranty deed conveyed said premises to Longan, in which deed they recited that they released and extinguished any power of appointment or disposition held by Martin over the land, and they further covenanted and agreed that Martin would never do anything to injure, detract from, or affect the fee-simple estate therein granted. Longan and his wife by their deed of date of December 19, 1918, conveyed to the complainant an undivided one-fifth interest in the land in question.

The chancellor found that by virtue of the sales and the exchange of the various deeds in question the various interests merged, and that the complainant, Peter M. Biwer, was vested with the fee to an undivided one-fifth of the land, and defendant Fred W. Longan was vested with the fee to an undivided four-fifths, and decreed partition thereof, from which decree this appeal is now pending.

It is contended by appellants, who are the minor children of Zachariah Martin and the grandchildren of John B. Martin, that the transactions in question do not constitute a merger, and that their interests under the deed of John B. Martin to Zachariah Martin are vested, and contingent. It is contended by the appellee that the interests of these minor children at the time of the transactions in question were contingent, and that there was a merger and a destruction of such contingent remainders.

In the John B. Martin deed the widow of Zachariah was not referred to by name, and the remainder to said widow was dependent upon Zachariah being survived by a widow and who such widow would be. It was therefore a contingent remainder. The remainders over to the lineal descendants of Zachariah depended upon such descendants surviving him, and were therefore contingent remainders. Spatz v. Paulus, 285 Ill. 82, 120 N. E. 503;Kamerer v. Kamerer, 281 Ill. 587, 117 N. E. 1027;Smith v. Chester, 272 Ill. 428, 112 N. E. 325, Ann. Cas. 1917A, 925;Kleinhans v. Kleinhans, 253 Ill. 620, 97 N. E. 1077;City of Peoria v. Darst, 101 Ill. 609.The deed also provided that, in default of appointment by him, the fee to the property should vest in all lineal descendants of the grantor, per stirpes, in fee, subject to the life estate of the widow.

Under the rule at common law, where a grantor in a deed conveys a life estate with remainder over, either mediately or immediately, to his heirs or the heirs of his body, the heirs do not take a remainder at all, but the word ‘heirs' is regarded as defining or limiting the estate which the first taker has. In such case the lineal heirs or heirs of the body of the grantor take, not a remainder, but a reversion, and such reversion by descent from the grantor, and not by the deed. The grantor first in point of time in case of such conveyance has the reversion in the property by operation of law. 2 Washburn on Real Prop. 242, 395; Akers v. Clark, 184 Ill. 136, 56 N. E. 296,75 Am. St. Rep. 152. Under the deed of John B. Martin, therefore, the reversion of said lands by operation of law vested in Martin. Appellee, Biwer, succeeded to such reversion through a sheriff's deed on execution sale. By his deed of December 18, 1918, to Longan, Zachariah Martin extinguished the power of appointment given him in the deed of John B. Martin. Baker v. Wilmert, 288 Ill. 434, 123 N. E. 627. Such power of appointment therefore does not enter further into the questions presented here.

It is contended by the appellee that, as the reversion of the lands remained in the grantor, John B. Martin, and as appellee succeeded to Martin's title, his deed of December 17, 1918, conveyed the reversion and merged it with the life estate and destroyed the contingent remainder, thereby giving Longan the fee to said lands, one-fifth interest in which he later reconveyed to appellee. This is an evident attempt to destroy the contingent interest of the children of Zachariah conveyed and warranted to them by the deed of John B. Martin and by him intended to be vested in them if they survive their father. The rule of law which appellee seeks to take advantage of here has grown out of the theory that a contingent remainder must depend upon a particular estate of freehold for its existence. Therefore, where the tenant of this particular estate of freehold tortiously terminates it by merging it with the reversion in fee, the contingent remainder is destroyed, regardless of the intention of the grantor in executing the deed conveying such contingent remainder, and regardless of the fact, in certain cases, that such contingent remaindermen are in esse, and the only contingency preventing the immediate vesting of the estate granted them is that they survive the life tenant. It is a rule of law that should never be applied unless its...