Chamberlain v. Runkle

• Decision Date: 04 April 1902
• Citation: 63 N.E. 486,28 Ind.App. 599
• Parties: CHAMBERLAIN et al. v. RUNKLE et al.
• Court: Indiana Appellate Court

28 Ind.App. 599

63 N.E. 486

CHAMBERLAIN et al.

v.RUNKLE et al.

Appellate Court of Indiana, Division No. 1.

April 4, 1902.

Appeal from circuit court, Huntington county; J. T. Cox, Judge.

Action by William Runkle and others against Edsell W. Chamberlain and others. There was a judgment in favor of plaintiffs, and defendants appeal. Reversed.

C. A. Metcalf, for appellants Branyan & Branyan and Milo Feightner, for appellees.

BLACK, J.

In a suit to quiet title to real estate the demurrer of the appellants to the amended complaint for want of sufficient facts was overruled. The case involves the construction of a deed of conveyance under which all the parties claim, executed by the owner in fee simple of the real estate and his wife, as follows: “Know all men by these presents, that we, Samuel Runkle and Mary Runkle, of the county of Perry and state of Ohio, in consideration of love and affection, and also of one dollar in hand paid by Jacob Runkle, of the same place, have bargained and sold, and do hereby grant, bargain, sell, and convey, unto the said Jacob Runkle, during his natural lifetime, and to the heirs of his body begotten on his wife, Nancy Runkle, in fee simple and forever, the following premises, lands, and tenements situated in the county of Huntington and state of Indiana [describing 30 acres of land]; to have and to hold said lands and tenements with the appurtenances unto the said Jacob Runkle and Nancy Runkle, his wife, during their joint and several lives, and in fee simple to the heirs of their bodies lawfully begotten, and their assigns, forever. And the said Jacob [Samuel] Runkle and Mary Runkle, for themselves and heirs, doth hereby covenant with the said Jacob Runkle and Nancy Runkle and the heirs of their body and assigns that they are lawfully seised of the lands and tenements aforesaid, that the premises are free and clear of all incumbrances whatsoever, and that they will forever warrant and defend the same, with the appurtenances, unto the said Jacob Runkle and Nancy Runkle, during their natural lives, and to the issue of their said marriage, in fee simple, forever, against the lawful claims of all persons whomsoever. In testimony whereof the said Samuel Runkle and Mary Runkle, his wife, who hereby releases all her right of dower in said land and tenements, have hereunto set their hands and seals this - day of October, 1850,” etc. The signatures of the grantors were attested by two witnesses, and the execution of the deed was duly acknowledged by the grantors, in Ohio, on the 9th day of October, 1850. The deed was recorded in Huntington county, Ind., December 19, 1850, and Jacob and Nancy, therein mentioned, then went into possession of the land under said deed. Jacob and Nancy, husband and wife, were then the parents of two of the appellees, and afterward the three other appellees were born to them; these five being the only children born to them. September 30, 1856, Jacob and Nancy, still residing upon the land, by their deed of general warranty conveyed the land to John R. Coffroth, who took possession under his deed. Whatever interest the appellants have in the land is derived under Coffroth through intermediate conveyances and by descent. Nancy Runkle, mother of the appellees, died in 1897, about six months before the commencement of this suit; her husband, Jacob Runkle, having died some years earlier.

The appellants claim that under the deed above set out Jacob Runkle took title in fee simple, which he had good right to convey; while on behalf of the appellees it is claimed, and the court below held, that a life estate only was granted to Jacob and Nancy Runkle during their joint lives and the life of the survivor, with remainder in fee simple to their children, the appellees; and that the title and right of possession of the appellants ceased with the death of Nancy Runkle. It is a settled rule of law that the forms and solemnities requisite to the passing of title to real estate must be in conformity to the local law of the country in which the land is situated. 4 Kent, Comm. 441, note b, 513; Washb. Real Prop. (5th Ed.) 250; Townsend v. Downer, 27 Vt. 119. In seeking a proper construction of the deed, it will be proper first to consider its premises, or portion preceding the habendum. It seems to be sufficiently plain without argument that the estate indicated by the premises was, under the rule in Shelley's Case, an estate of inheritance, being an estate in fee tail in Jacob Runkle, his wife taking no estate, unless the words “in fee simple and forever” therein require a different conclusion. The rule in Shelley's Case is part of the law of this state. Siceloff v. Redman's Adm'r, 26 Ind. 251;Mining Co. v. Beckleheimer, 102 Ind. 76, 1 N. E. 202, 52 Am. Rep. 645;Taney v. Fahnley, 126 Ind. 88, 25 N. E. 882;Perkins v. McConnell, 136 Ind. 384, 36 N. E. 121;Waters v. Lyon, 141 Ind. 170, 40 N. E. 662. Words of limitation, as “heirs,” or “heirs of the body,” coupled with the name of the first taker, do not describe a class who are to take by purchase, but operate to vest in the first taker an estate in fee simple or fee tail. See Shimer v. Mann, 99 Ind. 190, 202, 203, 50 Am. Rep. 82. At the time of the execution of the deed the statute of this state provided, as it does now: “All estates tail are abolished; and all estates which according to the common law would be adjudged a fee tail shall hereafter be adjudged a fee simple; and if no valid remainder shall be limited thereon, shall be a fee simple absolute.” Rev. St. 1843, p. 424 (section 3378, Burns' Rev. St. 1901). A conveyance to A. and the heirs of her body by B., who was her husband, would have formerly been an estate tail special, and under our statute is a fee-simple absolute. Tipton v. La-Rose, 27 Ind. 484. Following language which, under the rule in Shelley's Case, would have created an estate tail in the first taker before estates tail were abolished, the draftsman inserted the words “in fee simple and forever,” and the question is presented whether or not these words have the effect of making the preceding words, “heirs of his body begotten,” etc., words of purchase, instead of limitation, by making the heirs of the body of the first taker a new root of inheritance in fee simple. Those who were to take after the life estate in the first taker were confined to the heirs of his body,-a special class of heirs; and, if these heirs were to hold as tenants in fee simple, the land would descend from them to their general heirs, so that there would not be a succession from generation to generation to the same special class of heirs as that prescribed to take after the life estate. If a special class- the heirs of the body of the first taker- were to take as tenants in fee simple, this would be neither a fee tail nor a fee simple in the first taker, but the heirs of his body would constitute an original stock; that is, they would take by purchase, and not by descent. By the statute of 1852 it was made unnecessary to use the words “heirs and assigns of the grantee” to create in the grantee an estate of inheritance. Section 3348, Burns' Rev. St. 1901. Prior to the enactment of this statute the common-law requirement of words of inheritance in a deed to show an intent to create an estate of inheritance obtained in this state. Nelson v. Davis, 35 Ind. 474;Nicholson v. Caress, 59 Ind. 39. Whatever may be said of the use of the words “in fee simple and forever” in a will, or in pleading, they are not apt words in a deed at common law. In a deed an estate in fee simple could not be created at common law, nor could an estate in fee tail be created under the statute Westminster II., without the word “heirs” used in its technical sense of a word of inheritance. See Mining Co. v. Beckleheimer, 102 Ind. 76, 1 N. E. 202, 52 Am. Rep. 645. The term “heirs” has a fixed legal meaning as a word of limitation; and a merely presumed intention, even in wills, will not control that significance of the word, and it will not be treated as a word of purchase unless the testator's intent to so use it is manifest. Patterson v. Jackman, 5 Ind. 283;Siceloff v. Redman's Adm'r, 26 Ind. 251, 261. “Heirs” and “heirs of the body” are in their primary and natural sense words of limitation, and not of purchase. Schoonmaker v. Sheely, 3 Denio, 485;Nelson v. Davis, 35 Ind. 474;Shimer v. Mann, 99 Ind. 190, 50 Am. Rep. 82. Holt, C. J., in Countess of Bridgewater v. Duke of Bolton, 6 Mod. 106, said: “Most certainly in grants it [the word “estate”] would not pass a fee, because the law appoints that, let the intent of the parties be ever so fully expressed and manifested in grants, without the word ‘heirs' a fee shall not pass. If a feoffment be made to J. S., to have to ‘him in fee simple,’ which words can have no other sense than to pass an inheritance, yet an estate only for life shall pass.” At common law, to create a fee by deed, the use of the word “heirs” was essential. A conveyance of land to one forever, or to one and his assigns forever, would confer but a life estate; “for that there lack these words, ‘his heirs,’ which words only make an estate of inheritance in all feoffments and grants. Co. Litt. § 1. *** ‘If one grant *** to J. S., to have and to hold to him in fee simple or in fee tail, without saying “to him and his heirs,” or “to him and his heirs, males,” or the like, this is but an estate for life.’ *** Shep. Touch. 106.” Elph. Interp. Deeds, 225. At common law no estate in fee simple could be created by deed without the word “heirs,” and no estate in tail without the words “heirs of the body”; but in England, in deeds after 1881, an estate in fee simple may be created by a limitation to A. “in fee simple,” and an estate tail may be created by a limitation to A. “in tail.” Id. 225, 231. Even in a will “technical words, or words of known legal import, must have their legal effect, even though the testator uses inconsistent words,...