| Miss. | Mar 15, 1918
delivered the opinion of the court.
Johnnie May Flowers and Shelby Flowers, both infants, and the surviving children of Osie Flowers, deceased, filed this suit in the chancery court of Leake county asking the court to decree ,á cancellation of two certain deeds held by Lang Leflore, the defendant below.
The bill of complaint alleges that complainants are-the children of Osie Flowers, deceased; that prior to his death their maternal grandfather executed a deed conveying to Mrs. Sophia Coleman, Mrs. Lavená Coleman, Archie Smith, Marcellus Smith, Anne Smith, Osie Smith', and Mary Smith, all of whom were his children horn in lawful wedlock ‘ ‘ an equal and undivided interest^ share and share alike,” for their natural lives in certain described lands; that said deed also provided that on the death of any one of said, above-mentioned grantees, the interest of said* deceased in said land should go to his or her children ‘ ‘horn in lawful wedlock, share- and share alike.”
It appears that the mother of these complainants had, during her life, executed-two deeds of trust upon her interest in said land; that 'default having been made •in the payment of the debts secured by said deeds of trust, both were foreclosed, and the defendant, Lang Leflore, bought the land at trustee’s sale. It- also appears that,prior to the execution of the deeds of trust,the land conveyed to his children by Rufus Smith had. been partited by mutual agreement, and the subject of this controversy is the land which was set apart to the mother of complainants in the above-mentioned partition.
The defendant, Lang Leflore, interposed a demurrer . to the bill of complaint, assigning the following grounds, viz.:
*690 “Comes the said defendant .and demurs to that part of the hill and to so much thereof as claims an interest' in all of the land involved in said suit, because by their said bill complainants only show that they have an undivided one-eighth interest in the lands in controversy in this suit, and no more.
“Because said bill is without equity, except as to an undivided one-eighth- interest.
“Third, that the conveyance by Marcellus Smith and Turner Smith and Ann Dawson to Osie Flowers, the mother of complainants, was a conveyance of their life estate and did not créate in complainants the remainder in fee in said lands.
“Fourth, that on the death of Mary Smith, the life tenant, without children born in lawful wedlock, her interest reverted back to Rufus Smith or his rightful heirs in fee simple and not to the brothers and sisters of the whole blood to said Mary Smith.
“Fifth, .that the complainants’ remedy as to the balance of their interest, if any exists, is confined to the undivided one-eighth interest in all the land conveyed by Rufus Smith wherein said' life estate and remander were created.
“Sixth, that one life tenant cannot create a remainder by deed to another life tenant because of a 'want of a particular estate to sustain the same, therefore the conveyance by the three life tenants to the mother of complainants did not create a remainder in fee in the •complainants in the land in dispute, but only conveyed a life estate dependent upon the natural life of the grantors, and which the bill fails to show áre dead.”
This demurrer was overruled, and appeal was granted to settle the principles of the cause.
It will be observed that this bill was filed upon the theory that the deeds of trust conveying the land, which had by mutual agreement between the holders of. the life estate been allotted to Osie Flowers, and by an exchange of deeds, case a shadow or doubt upon the title of
The life tenants could make a binding contract, as among themselves, to divide their life estates, as was done in. this case, and the remaindermen or the persons to whom the ultimate fee was granted could elect to .accept as their several parts, the parts which their mothers or fathers had accepted as their share in the life estate. So far as the other owners of the ultimate fee are concerned, this litigation will have no effect.
It seems certain that in so far as the defendant is ■concerned he could not claim that he had any right, title, or interest in the land after the death of Osie Flowers, the mother of complainants. In so far as the parties to this suit are concerned, the situation seems io be that the defendant seems to have, on the face of this deed, a fee-simple title to the land described in his deed. But the truth is, if he obtained any title at all, he only got such title as was vested in Osie Flowers, which title was limited to her life estate in the land in •question. We are not concerned with the interest of the other living life tenants — they are not parties to ■this suit — nor are we concerned with the rights of the other owners of the ultimate fee in these lands, and what proportion is vested in them by the original deed of their grandfather. The children of the other life tenants, at the expiration of the life estates, may elect to approve the division made by the life tenants, but whether they do or not their interests are not involved in this suit.
Jt seems to us that the chancery court could and should cancel the deeds held by Lang Leflore as a cloud upon the title of these complainants. That it is a cloud is demonstrated by the fact that he is defending this suit, thereby claiming some further interest in this land. All the interest he ever had lapsed when Osie Flowers
Affirmed and remanded.