Sauls v. Cox

• Decision Date: 21 May 1946
• Docket Number: No. 29504.,29504.
• Citation: 394 Ill. 81,67 N.E.2d 187
• Parties: SAULS et al. v. COX et al.
• Court: Illinois Supreme Court

394 Ill. 81

67 N.E.2d 187

SAULS et al.

v.COX et al.

No. 29504.

Supreme Court of Illinois.

May 21, 1946.

Appeal from Circuit Court, Gallatin County; Caswell J. Crebs, judge.

Ejectment action by Theodors Sauls and others against Bricem Cox and others. From an adverse judgment, plaintiffs appeal.

Reversed and remanded with directions.

Don Scott, of Harrisburg, and Conger & Elliott, of Carmi, for appellants.

C. K. Roedel, Bartley & Karber, and Joseph L. Bartley, all of the Shawneetown, for appellees.

MURPHY, Justice.

This is an ejectment action which comes to this court by direct appeal from the circuit court of Gallatin county. It involves a freehold interest in forty acres of land located in that county. Defendants' motions to dismiss plaintiffs' second amended complaint were sustained. This appeal followed.

The sole question is as to the estate conveyed by a deed which was made in 1872 by Bricem Cox and wife to Nancy M. Cox. The chain of title under which defendants claim is not shown but it is conceded that if the deed is construed as defendants contend, and as the trial court held, plaintiffs' action fails for they would have no interest in the premises. Holders of certain oil and gas rights were parties but their interests are not involved.

The granting clause of the deed is as follows: ‘That the said party of the first part * * * have granted bargained sold remised released aliened and confirmed and by these presence do grant bargain sell remise release alien and confirm unto the said party of the second part to her and her bodily heirs and assigns forever all of the following described premises' etc. The deed contained no habendum clause and the covenants of warranty were limited to whatever estate was conveyed.

When the deed was made, Nancy M. Cox the grantee, was seven years old. There after she married Gora W. Sauls and nine children were born to them. She died in May, 1944, leaving the nine children surviving. They are her bodily heirs and all of them join as plaintiffs in this action. They contend that the deed created an estate tail as at common law, which section 6 of the Conveyance Act (Ill.Rev.Stat.1945, chap. 30, par. 5) converted into a life estate in Nancy M. Cox with remainder to her bodily heirs. Defendants contend that the words ‘and her bodily heirs and assigns forever’ should be construed as words of purchase, descriptive of the persons who take and that the deed conveyed a feesimple estate to Nancy M. Cox and her bodily heirs, and since Nancy M. Cox was the only grantee in being when the deed was delivered, she took a full fee-simple estate.

Section 6 of the Conveyance Act abolished fee-tail estates as they were known at common law, but the application of the statute is dependent upon the estate conveyed being an estate tail at common law. If it was not a fee tail, the statute does not apply. Duffield v. Duffield, 268 Ill. 29, 108 N.E. 673, Ann.Cas.1916D, 859. Thus at this time, as was said by Sir Edward Coke, the law from which estates tail come may seem ancient, yet it is necessary to be known.

At the common law, before the Statute De Donis, there were two estates of inheritance, the one a fee simple absolute which descended to heirs generally, the other a conditional fee which was restricted in descent to some particular heirs, exclusive of others, such as to the heirs of the grantee or donee's body, or to a class of his lineal heirs such as the heirs male of his body. In 4 Kent's Commentaries, it is said that the conditional fee was construed to be a fee simple, on condition that the grantee had the heirs prescribed. If the grantee died without such issue, the lands reverted to the grantor. But if he had the specified issue, the condition upon which the fee was to be granted was supposed to be performed and the estate became absolute at least to the extent that the grantee could alien the land, and thus bar not only his own issue of their right to take as his bodily heirs but to cut off the grantor's possibility of reverter. It is said in Blackstone's Com., Book 2, page 110, that the result was that grantees who held conditional fees aliened their estates just as soon as there were heirs of the body which, upon death, would come within the condition prescribed, and the grantee repurchased the land, thereby becoming vested with a fee simple absolute that would descend to his heirs generally.

Conditional fees and the means of defeating them being recognized by law, the Statute De Donis was adopted. The preamble of the act evidences the purpose for which it was adopted, for therein reference is made to the custom that prevailed whereby grantees seized of conditional fees conveyed the same when issue was born, which the act says ‘disinherits their issue of the land contrary to the mind of the giver.’ It commanded that henceforth the will of the donor as expressed in the deed should be observed and they to whom conditional fees were given should have no power to alien the land, but that it should remain unto the issue of them to whom it was given after their death or if issue failed it should revert unto the donor. The operation of the statute on conditional fees created what the courts termed estates tail. It is estates of this character to which section 6 was directed. Its purpose was to abolish estates tail so that the grantee would take a life estate and the remainder would go to the heirs of the body of the grantee or, if to a class of such heirs, then to them. Nave v. Bailey, 329 Ill. 235, 160 N.E. 605;Lehndorf v. Cope, 122 Ill. 317, 13 N.E. 505;Frazer v. Board of Suzpervisors, 74 Ill. 282.

What was the nature and quantity of the estate conveyed by the deed in question, determined by the rules of the common law? It is a question of law to be ascertained by construction of the language used in the deed. The true purpose in construing a deed is to ascertain the intent of the grantor and to give effect to such intent if not in conflict with some rule of law. If, in describing the estate conveyed, the grantor has used words which in the law of real property nave come to have a definite legal significance, then such words must be given their legal effect. This is based on the principle that it is presumed the grantor intended that the words so employed should be given their full import. Dry v. Adams, 367 Ill. 400, 11 N.E.2d 607;Coogan v. Jones, 278 Ill. 279, 115 N.E. 877;Duffield v. Duffield, 268 Ill. 29, 108 N.E. 673, Ann.Cas.1916D, 859. Some of the cases cited by counsel in this case prompt a restatement of the principle that the license permitted in the construction of wills is not allowed when construing a deed. Duffield v. Duffield, 293 Ill. 300, 127 N.E. 709;Mittel v. Karl, 133 Ill. 65, 24 N.E. 553,8 L.R.A. 655. Failure to observe this distinction leads to confusion.

There is nothing in this deed which indicates that the grantors intended to convey an estate different from that which the words, ‘to her and her bodily heirs and assigns forever,’ would convey according to their legal significance. The innumerable cases where these words and others of similar import have been construed demonstrate that they long since have had a technical legal meaning. The legal effect of some of them has its origin in the common law and that is the source from which this question must be determined.

To create an estate of inheritance at common law, it was necessary that the grant or donation contain the word ‘heirs.’ In Blackstone's Com., Book 2, page 108, the necessity of using the word ‘heirs' to create an estate of inheritance was emphasized by the illustration that if land be given to a man forever or to him and his assigns forever, this vests in him but a life estate. The necessity of the word ‘heirs' to create an estate of inheritance applied to both estates in fee simple absolute and estates tail. In AEtna Life Ins. Co. v. Hoppin, 249 Ill. 406, 94 N.E. 669, 671, it was said: ‘The word ‘heirs' is a technical word having a definite legal signification, and, when unexplained and uncontrolled by the context, must be interpreted, according to its technical import, as designating the person appointed by law to succeed to the real estate in case of intestacy. Heirs of the body are a limited class of heirs, restricted to lineal descendants.’

In this case the word ‘heirs' must be interpreted to have created an estate of...