39 Tenn. 389 | Tenn. | 1859
delivered the opinion of the Court.
In 1843, David Winchester, who is now dead, leaving the defendants, his widow and children, sold and conveyed to Cromwell in trust, “ for Mrs. Elizabeth Armour and children,” a lot in Memphis, for the consideration of $300. This hill is filed to correct an alleged mistake in the deed, by the omission of the words of inheritance. The words used are “ to the said John Cromwell, trustee of Elizabeth Armour, and her children forever.”
The rigid and well established rule of the common law, 4 Kent, 4, 5, &c., that the word heirs is indispensable to convey an estate of inheritance, and without it, only, an estate for life is created in deeds, is recognized by this Court in Hunter v. Bryan, 5 Hum., 47. This rule, though of feudal origin, has been too long established to be changed, except by the Legislature. This has been done by several of the States, and recently by our own. But this deed was before our statute. This deed is not before us, however, for construction, but upon a bill to reform it, because of a mistake in not inserting words of inheritance, in conformity to the understanding of the parties at the time.
That this power has been always exercised in proper cases by Courts of Chancery, there can „ be no doubt. 1 Story Eq., sec. 152. If, by mistake, the writing contains less or more, or something different from the in
The question is, whether, according to these' rules, the complainants have made out a case for the relief they ask. It is proved by two witnesses that they saw the vendor on the day he made the sale, and he said he had sold the lot to Cromwell for a certain price, which is proved to have been a full and fair one for the fee at that day. He made no reservation, said nothing about a life estate or a reversion, or the reservation of any interest. But Aye are not left to parol proof to ascertain the intention of the parties, because the internal evidence is conclusive upon the point. In a perfectly formal deed in other respects, he conveys the lot to John Cronrwell, as trustee for Elizabeth
We have not thought it necessary to decide the question of the competency of the husband of Mrs. Armour, but decide the case without reference to his testimony.
We think there is no doubt of the correctness of the Chancellor’s decree granting the relief, and affirm it.