94 Kan. 48 | Kan. | 1915
The opinion of the court was delivered by
Mrs. Mary A. Broaddus executed to her sons, J. Norris Broaddus' and John W. Broaddus, a warranty deed, which was in the usual form, excepting that after the description of the property it contained these provisions:
“This conveyance is made upon the following con
Thereafter J. Norris Broaddus (his wife joining) and John W. Broaddus (unmarried) reconveyed the property to their mother (now Mrs. Kirby), who brought an action to quiet her title against Anne Lee Broaddus, the minor daughter of J. Norris Broaddus. An answer was filed in behalf of the defendant, asserting that by reason of the facts already stated she had a vested interest as remainderman, her father having taken only a life estate under the deed from his mother. A demurrer to the answer was sustained, and an appeal is taken from that ruling.
The question presented is whether the conveyance from Mary A. Broaddus vested in J. Norris Broaddus and John W. Broaddus a title in fee or merely a life estate with a remainder to their heirs, and this depends upon whether the rule in Shelley’s Case is in force in this state as applied to deeds. The argument is made for the appellant that the rule in the Shelley case is no part of the common law of Kansas, not being adapted to the conditions and wants of our people, the reasons for it having no place under our system. The rule is sometimes said to have been founded solely upon principles of feudal law that have no application in this country, but more substantial grounds for it have also been stated. While it has been denounced by some authorities as arbitrary and unreasonable, it has been commended by others as well founded, and as accomplishing good results. The rule in substance is this: Where a conveyance is made to one for his life with a
, “Upon the absolute transfer of an estate, the grantor can not, by any restrictions or limitations contained in the instrument of transfer, defeat or annul the legal consequences which the law annexes to the estate thus transferred. If, for instance, upon the transfer of an estate in fee, the conveyance should provide that the estate thereby conveyed should not be subject to dower or to curtesy, or that it should not descend to the heirs general of the grantee upon his dying intestate, or that the grantee should have no power of disposition over it, the provision, in either of these cases, would clearly be inoperative and void, because the act or thing forbidden is a right or incident which the law annexes to every estate in fee simple, and to give effect to such provisions would be simply permitting individuals to abrogate and annul the law • of the state by mere private contract. This, can not be done.” (Steib v. Whitehead, 111 Ill. 247, 251.)
The wisdom of the rule need not be discussed. Its history and operation are elaborately considered in a series of cases, with an accompanying Note, in 29 L. R. A., n. s., 935, 963.. It is a well-recognized part of the common law which has been adopted in this state. (Gen. Stat. 1909, § 9850.) In Peck v. Ayres, 79 Kan. 457, 100 Pac. 283, it was said that the rule has been abrogated here, but there the title created, by a will was" under consideration. In Bunting v. Speek, 41 Kan. 424, 21 Pac. 288, it was said:
“The rule in Shelley’s Casé, which was a part of the common law, has been repealed or altered by all the states except in Maryland, Georgia, Texas, Indiana, and Pennsylvania. In this state, however, it [the repeal] affects wills only. . . . When this, devise took effect, the rule in Shelley’s Case was in force in this state; but by revision of 1868, chapter 117, § 52, it was abrogated so far as wills are concerned.” (pp. 435, 437.)
The partial repeal of the rule in Shelley’s Case (Gen. Stat. 1909, § 9829) was effected by a section of a new chapter on wills, adopted at the time of the general revision of the statutes in 1868. At the same session of the legislature, and as a part of the same general plan, the entire law of conveyances ■ was revised. If it had been the purpose to do away with the rule entirely it seems clear that a provision on the subject would have been inserted in the chapter relating to deeds. The abrogation of the rule so far as wills were concerned was a recognition of its existence, and proves that the matter engaged the attention of the lawmaking body. That no change was made in this respect in the statute regarding conveyances
The- judgment is affirmed.