It appears that on 9 February, 1917, John A. Scott and wife executed to Susan Ida Starling a deed for certain lands to said *Page 441 Susan Ida Starling "for life, and after her death to the heirs of her body in fee, to their only use and behoof."
The question presented is, Does the grantee take a fee simple under the rule in Shelley's case? This language appears in the introductory or titular part of the deed, and it also appears in the habendum clause.
It is clear that under the habendum clause the rule in Shelley's case
applies, and Susan Ida Starling takes the fee simple, and having such, she, with the jointure of her husband, can convey a good and indefeasible title.Leathers v. Gray,
The fact that the same language appears in the introductory clause can certainly make no difference. The learned counsel for the defendant admits that "looking at the habendum clause alone it would seem that the rule inShelley's case applies, and that a fee is conveyed." But the defendant contends that as it appears in the introductory clause, "to Susan Ida Starling, of the second part, for life, and after her death to the heirs of her body in fee," and looking at the deed from its "four corners," that it takes this case out of the rule in Shelley's case, and that it comes under the exceptions to the rule.
As the language is the same in both the introductory clause and thehabendum, we fail to see the force of this contention.
Affirmed.