75 Tenn. 207 | Tenn. | 1881
delivered the opinion of the court.
In this action of ejectment, the plaintiffs below, who are the defendants in error, made out a connected chain of title, and the plaintiffs in error relied solely upon an outstanding tax title in a third person, and upon the existence of an estate by curtesy in the father of the defendants in error.
The plaintiffs below claimed title to the lot in controversy under a deed made to their mother by Jeremiah Woodworth, on September 4, 1855. That instrument recites that it is entered into by and between Jeremiah Woodworth of the first part, and Sarah Catherine Hicks, wife of James Franklin Hicks, of the second part, and that Woodworth, for the considerations named, sells and conveys “to the said Sarah Catherine Hicks, wife of James Franklin Hicks, the following described lot,” setting it out, “ to have and to hold the above-mentioned lot and bargained premises, together with all the ■ improvements, etc., unto her the said Sarah Catherine Hicks, wife of James Franklin Hicks, for her sole and separate use and benefit, and free
At the time of the execution of this deed, the said James Franklin Hicks had several children then living begotten of the body of the said Sarah Catherine, his wife. Of these children, all died under age, intestate, and without ever having married, except the defendant in error, Ralph Hicks. After the execution of the deed, three other children were born of the said Sarah Catherine by James Franklin Hicks, all of whom joined with the said Ralph Hicks in bringing this action. Sarah, the mother, died before the suit was commenced, but the father is still living. Upon these facts, the point is made by the plaintiffs in error that the father has a life estate in the lot in controversy, as tenant by the curtesy, and is entitled to the possession of the land by virtue of this outstanding title, instead of the children.
A conveyance of land directly to a woman and her children without more, she then having children, would vest the title in her and her children equally: Co. Lit., 3a, 9a; Perkins, sec. 54; Hickman v. Quinn, 6 Yer., 96; Grimes v. Orrand, 2 Heis., 98; Barnes v. Vickers, 3 Baxt., 370; Stroman v. Rotterbury, 4 Des., 268; Holeman v. Fort, 3 Strobh., 74. And, it seems, no title will vest at law in 'children thereafter born, although the instrument may declare the grantor’s in
The deed conveys the lot in controversy to Sarah Catherine Hicks to have and to hold unto her, for her sole and separate use, “ and to the children of the said Sarah Catherine upon her body begotten by her said husband, James Franklin Hicks.” 'At common law,
Under the old system of conveyancing, the office of the premises of a deed was to rightly name the feoffor and feoffee, and to describe the land to be conveyed, and the office of the habendum was to name again the feoffee, and to limit the certainty of the estate: Co. Lit., 6a. If the habendum was repugnant to the premises, either in the quantity of the thing conveyed, the estate or the grantee, it was void: Co. Lit., 299 a; 8 Rep., 56 6.; Hafner v. Irwin, 4 Dev. & B.,
Tested by these rules, the plain object of the grantor of the deed in controversy was to carry the property to Sarah Catherine Hicks, for her sole and separate use, and to her children, not as a class to take in perpetual succession, but as direct objects of the grant. This intention may be effectuated by treating the conveyance as being to the mother in trust for herself and her children, or as giving her directly an estate for life with remainder to her children. In either view, as the conveyance is to her, “ and to the children” upon her body begotten by her then husband, meaning plainly all of the children that might thus be begotten, she would take only an estate for life with remainder to her children: Ragsdale v. Mabry, 8 Baxt., 300; Turner v. Ivie, 5 Heis., 222.
The argument on behalf of the plaintiffs in error concedes that the husband's estate by curtesy depends upon the wife’s taking the absolute estate, either directly by holding the habendum as repugnant to the premises, or indirectly by construing the habendum as
To create an estate tail there must be the use of technical 'words designating a class of heirs to take in perpetual succession, or language disclosing a clear intent to that effect: Middleton v. Smith, 1 Cold., 144; Wynne v. Wynne, 9 Heis., 308. The word children is usually a word of purchase, requiring strong language to change it into a word of limitation. Not only is no such language found in this deed, but if a word of limitation had been used the context would have required it to be construed as a word of purchase : Pierce v. Ridley, 1 Baxt., 145.
We are clearly of opinion that the mother did not take a fee in the land, but only a separate life estate, and that on her death the entire estate passed to her
There is no error in the judgment, and it must be affirmed.