Hardage v. Stroope

• Decision Date: 23 December 1893
• Citation: 24 S.W. 490,58 Ark. 303
• Parties: HARDAGE v. STROOPE
• Court: Arkansas Supreme Court

24 S.W. 490

58 Ark. 303

HARDAGE v. STROOPE

Supreme Court of Arkansas

December 23, 1893

Appeal from Clark Circuit Court in Chancery, JOHN E. BRADLEY Special Judge.

Decree reversed and cause remanded.

U. M. & G. B. Rose and J. H. Crawford for appellants.

1. Mrs Carroll's children took a vested remainder in fee, and after their death the mother inherited from them the fee simple in the estate. Citing 1 Fearne Cont. Rem. 216; 2 id 73; 2 Washb. Real Prop. 226, 233, 243, 240, 227, 230, 224 225, 250; 4 Kent, Com. 203, 205, etc.; 23 Ark. 179; Tiedeman, Real Prop. secs. 402, 401, 398, etc.; 2 Cruise, Real Prop. ch. 1, secs. 9, 4, 58; 6 Wall, 458, 476; 19 id. 167, 176; 113 U.S. 340; 141 id. 313; 4 Pet. 90; 12 Ala. 141; 46 Am. Dec. 249; 4 Johns. 61; 10 Tex. 560; 23 Penn. St. 31; 19 N.E. 539; 12 S.W. 349.

2. The rule in Shelly's Case applies in this case; the heirs would take by descent and not by purchase, and they would be bound by her conveyance. 4 Kent, Com. 209, 216; 2 Washb. Real Pr. 270, 273, 274, etc.; 4 Maule & Sel. 362; 64 Pa.St. 9; 70 id. 72.

Murry & Kinsworthy for appellee.

1. The children of Mrs. Carroll took only a contingent remainder, which never became vested, they dying before their mother. 4 Kent, Com. *202, 200, etc; 23 Pa.St. 31; 44 Ark. 458; 49 id. 125; 14 S.E. 640; 44 Ch. Div. 154; 20 A. 1002; 85 N.Y. 177; 18 A. 826; 26 N.E. 897; 2 Washb. Real Prop. 250; 1 Dougl. 265; 21 A. 826; 53 Ark. 185.

2. The rule in Shelly's case, as modified by our statute, doubtless is in force, in a proper case, in this State (51 Ark. 71), but it has no application here. At common law, Mrs. Carroll would take an estate tail, which, by the operation of the rule in Shelly's Case, would be raised to an estate in fee simple; but not so in Arkansas, for, by statute, the rule has been rendered inoperative. Mansf. Dig. sec. 643. See 4 Kent *226, 228, etc.; 10 L. R. A. 162; 107 Ill. 182-6; 9 L. R. A. 165; 25 N.E. 1013; 21 A. 826; 15 S.W. 623; 26 N.E. 895; 20 A. 645; Ib. 497; 17 A. 11; 21 id. 596. It is only in cases where the technical words "heirs," or "heirs of the body," are used that the rule in Shelley's Case ever applies; and if we adopt the theory of appellant, and eliminate from the deed the words "and then to the heirs of her body in fee simple," we have a conveyance which does not contain these technical words, and is not subject to the operation of the rule in Shelley's case. 20 A. 624; 100 N.C. 254.

OPINION

BATTLE, J.

J. L. Stroope and wife conveyed the land in controversy to Tennessee M. Carroll, "to have and to hold the said land unto the said Tennessee M. Carroll for and during her natural life, and then to the heirs of her body, in fee simple; and if, at her death, there are no heirs of her body to take the said land, then, in that case, to be divided and distributed according to the laws for descent and distribution in this State." After this, Mrs. Carroll conveyed it in trust to James M. Hardage to secure the payment of a debt. She had two children born to her after the conveyance by J. L. Stroope and wife, but they died in her life time. She died leaving no heirs of her body, but left her father, W. S. Stroope, surviving. After her death the land was sold under the deed of trust, and was purchased by Joseph A. Hardage. W. S. Stroope, the appellee, now claims it as the heir of Mrs. Carroll, and Joseph A. Hardage, the appellant, claims it under his purchase.

The rights of the parties depend on the legal effect of the following words contained in the deed to Mrs. Carroll: "To have and to hold the said land unto the said Tennessee M. Carroll for and during her natural life, and then to the heirs of her body, in fee simple; and if, at her death, there are no heirs of her body to take the said land, then in that case to be divided and distributed according to the laws for descent and distribution in this State." Appellee contends that Mrs. Carroll only took a life estate in the land under this clause, and that he is entitled to the remainder, she having left no descendants. On the other hand, the appellant contends that the remainder in fee vested in the children, and, when they died, Mrs. Carroll inherited it, and the whole estate in the land became vested in her; and that, if this contention be not true, the deed to Mrs. Carroll comes within the rule in Shelley's Case, and vested in her the estate in fee simple; and that in either event he is entitled to the land.

It is obvious that the deed to Mrs. Carroll created in her no estate in tail. Her grantor reserved no estate or interest, nor granted any remainder, after a certain line of heirs shall become extinct, but conveyed the land to her to hold during her life, and then to the heirs of her body in fee simple. No remainder vested in her children. It was to be inherited by the heirs of her body, and they were her descendants who survived her and were capable of inheriting at the time of her death. They might have been grand-children. They were not the children, as they died in the lifetime of their mother.

The effect of the deed, as explained by the habendum, in the absence of the rule in Shelley's Case, was to convey the land to Mrs. Carroll for her life, and then to her lineal heirs, and in default thereof to her collateral heirs. As there can be collateral heirs only in the absence of the lineal, the deed conveyed the land to Mrs. Carroll, in legal phraseology, for her life, and after her death to her heirs.

Two questions now confront us: (1.) Does the rule in Shelley's Case obtain in this State? (2.) And, if so, does the deed in question fall within it?

(1.) Is it in force in this State?

Section 566 of Mansfield's Digest provides: "The common law of England, so far as the same is applicable and of a general nature, and all statutes of the British parliament in aid of or to supply the defect of the common law made prior to the fourth year of James the First (that are applicable to our own form of government), of a general nature and not local to that kingdom, and not inconsistent with the constitution and laws of the United States or the constitution and laws of this State, shall be the rule of decision in this State unless altered or repealed by the general assembly of this State."

The rule in Shelley's Case, as stated by Mr. Preston, which Chancellor Kent says is full and accurate, is as follows: "When a person takes an estate of free-hold, legally or equitably, under a deed, will, or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons to take in succession, from generation to generation, the limitation to the heirs entities the ancestor to the whole estate." 4 Kent, Com. 215. Its origin is enveloped in the mists of antiquity. It was laid down in Shelley's Case in the 23rd year of the reign of Queen Elizabeth, upon the authority of a number of cases in the year-books. Sir William Blackstone, in his opinion in Perrin v. Blake, 1 W. Bl. 672, cites a case in 18 Edw. II. as establishing the same rule. The earliest intelligible case on the subject, however, is that of the Provost of Beverly, 40 Ed. III, which arose in the reign of Edward III, and substantially declared the rule as laid down in Shelley's Case.

Various reasons have been assigned for the origin of the rule. Chancellor Kent, upon this subject, says: "The judges in Perrin v. Blake imputed the origin of it to principles and policy deduced from feudal tenure; and that opinion has been generally followed in all the succeeding discussions. The feudal policy undoubtedly favored descents as much as possible. There were feudal burdens which attached to the heir when he took as heir by descent, from which he would have been exempted if he took the estate in the character of a purchaser. An estate of freehold in the ancestor attracted to him the estate imported by the limitation to his heirs; and it was deemed a fraud upon the feudal fruits and incidents of wardship, marriage and relief to give the property to the ancestor for his life only, and yet extend the enjoyment of it to his heirs, so as to enable them to take as purchasers in the same manner and to the same extent precisely as if they took by hereditary succession. The policy of the law would not permit this, and it accordingly gave the whole estate to the ancestor, so as to make it descendible from him in the regular line of descent. Mr. Justice Blackstone, in his argument in the Exchequer Chamber in Perrin v. Blake, does not admit that the rule took its rise merely from feudal principles and he says he never met with a trace of any such suggestion in any feudal writer. He imputes its origin, growth and establishment to the aversion that the common law had to the inheritance being in abeyance; and it was always deemed by the ancient law to be in abeyance during the pendency of a contingent remainder in fee, or in tail. Another foundation of the rule, as he observes, was the desire to facilitate the alienation of land, and to throw into the track of commerce one generation sooner, by vesting the inheritance in the ancestor, and thereby giving him the power of disposition. Mr. Hargrave, in his Observations concerning the Rule in Shelley's Case, considers the principle of it to rest on very enlarged foundations; and, though one object of it might be to prevent frauds upon the feudal lord, another and a greater one was to preserve the marked distinctions between descent and purchase, and prevent title by descent from being stripped of its proper incidents, and disguised with the qualities and properties of a purchase. It would, by that...