131 Iowa 438 | Iowa | 1906
In a contract between plaintiff and defendant, defendant undertook to loan plaintiff a sum of money to be secured by mortgage upon a certain tract of land upon condition that plaintiff should furnish an abstract showing that he had- fee-simple title to the property proposed to be mortgaged. Pursuant to this contract, plaintiff furnished an abstract of title, which defendant refused to accept, because of certain defects therein, and because plaintiff did not in fact have a fee-simple title. He averred that certain parties, who are now interveners in the case had an interest in the property, and that plaintiff had nothing but a life estate therein. Interveners, five in number, who are plaintiff’s children filed a petition in which they claimed to own a fee-simple title in the property subject to a life estate in their father. At the bottom of the controversy is a deed in plaintiff’s chain of title, from Hugh Kepler and Mary, his wife, of date September 26, 1885, conveying, for an expressed consideration of $5,600, the real property in dispute, the granting clause reading as follows: “ Do hereby sell and convey unto the said H. D. Kepler, a life'estate in and to the-following described premises.” The habendum clause contains the following: “ To have and to hold the same, with the rights and appurtenances thereunto belonging to said H. D. Kepler, during his natural life (his wife, if any he may have, to have no other, privilege than that of living on the premises for his, life, and no longer), and to the heirs of his body and their'assigns in fee simple forever. The said H. D.
assigns in fee simple forever. If this were all, there could be no doubt of the proposition that the rule in Shelley’s case would control. See Doyle v. Andis, supra; Wilson v. Rusk, not officially reported (Iowa), 103 N. W. 204. Appellees contend, however, that by reason of the provision relative to the wife’s privilege, and the provision in restraint of alienation, the rule does not apply. Where a grantor retains no reversionary interest, a provision in restraint of alienation is void. McCleary v. Ellis, 54 Iowa, 311. And this is especially time when applied to conveyances which fall within the rule of Shelley’s case. Doebler’s Appeal, 64, Pa. 9; Clarke v. Smith, 49 Md. 106; Van Olinda v. Carpenter, 127 Ill. 42 (19 N. E. 868, 2 L. R. A. 455, 11 Am. St. Rep. 92); Fowler v. Black, 136 Ill. 363 (26 N. E. 596, 11 L. R. A. 670); Van Grutten v. Foxwell, 66 Law J. (Q. B.) 745; Pierson v. Lane, 60, Iowa, 60; Blackwell v. Blackwell, 124 N. C. 269 (32 S. E. 676). This matter is fully discussed in volume 1, pages 362, 363, of Preston on Estates wherein he says that “ Neither the express declaration that the ancestor shall have an estate
III. Of course, if the rule in Shelley’s case does not apply, and it should be held that the conveyance was of but a life estate to Kepler, with remainder over to his children or to the heirs of his body, that remainder was a contingent one, dependent upon the birth of children. Taylor v. Taylor, 118 Iowa, 407; Zuver v. Lyons, 40 Iowa, 510. Upon the birth of a child or children, the remainder became vested, subject only to be opened by the birth of other children, and from that time forth could not be destroyed by any act of the tenant of the particular estate or of the reversion. Plaintiff did not acquire title from the reversioner until after the birth of his first • child, and if the 'rule in Shelley’s case does not apply, and the conveyance should be treated as passing a life estate to plaintiff, with remainder over 'to the heirs of his body, the conveyance to him by the reversioner did .not give him a title in fee. Nothing said in Archer v. Jacobs, 125 Iowa 467, runs counter to these views. Indeed, much that is there expressed supports the rules here stated. But we need not speculate upon this aspect of the case. Plaintiff has
The decree must be reversed, and the cause remanded for one in harmony with this opinion.
Reversed and remanded.