131 Ind. 381 | Ind. | 1892
Woodruff Beals was the owner and in possession of the land here the subject of controversy on the 9th day of June, 1868, and on that day he and his wife executed a warranty deed, wherein the grantees were described as “ Sarah A. Tinder and the heirs of Simeon Tinder by Sarah A. Tinder his wife.” Simeon Tinder and his wife were living at the time the deed- was executed. James Tinder, Lewis Tinder, David Tinder, Joseph Tinder and Mary Tinder were his children by his wife Sarah A. Tinder, and were
The theory of the appellant, Lewis Tinder, is that he is the owner of all the land, and as such was entitled to a decree quieting his title.
The theory is by counsel asserted to be sound upon the ground that Sarah A. Tinder is the sole legal grantee in the deed executed by Woodruff'Beals, and that the sheriff’s sale upon the judgment against her vested title in the appellant’s
There are authorities which lend support to the doctrine that a conveyance of land, describing the grantees as the heirs of a person named, is ineffective. The doctrine is placed upon the rule of the common law that a person can not have heirs during life, but, as shown in Huss v. Stephens, 51 Pa. St. 282, and in Stephens v. Huss, 54 Pa. St. 20, the rule does not apply where registry stands in the place of livery of seisin. The whole series of cases in America seems to rest on the case of Hall v. Leonard, 1 Pick. 27, and that case, as declared in Huss v. Stephens, supra, was not well decided. It is possibly true that this court is committed to the doctrine of Hall v. Leonard, supra, for it has been approved by our decisions. Winslow v. Winslow, 52 Ind. 8; Outland v. Bowen, 115 Ind. 150. But while it may be true that we are committed to the rule stated, it is also true that the court has mariifested a purpose to restrict rather than enlarge its operation. Lyles v. Lescher, 108 Ind. 382. The rule is the product of an adherence to a dry technical- doctrine that often defeats the clear intention of a testator or grantor, and seldom gives it effect. It generally produces injustice, since it often sacrifices substantial rights to fancied consistency or useless fiction. The rigid adherence to the meaning ascribed by law writers to the term “ heir ” or “ heirs,” has resulted in giving many instruments a meaning very different from that intended by their framers. It is not only the unlearned who use the term “ heirs ” as meaning “ children,” for the greatest of literary men often and often use the term as meaning children. And so do the courts. Griswold v. Hicks, 132 Ill. 494 (22 Am. St. Rep. 549); Ridgeway v. Lanphear, 99 Ind. 251; Hull v. Beals, 23 Ind. 25; Star, etc., Co. v. Morey, 108
The plain meaning of the grantor was that the children of Sarah A. Tinder and Simeon Tinder should take the land, since “ the heirs of Simeon Tinder by Sarah A. Tinder, his wife,” could be no others than their children. There could be no line of descendants, because the heirs meant by the grantor must be the particular class designated in the deed, namely, the heirs of Simeon Tinder by his wife, Sarah. The deed refers to a class and not to possible descendants. If the grantor had intended to vest the entire estate in Sarah A. Tiiider, the superadded words, “ and the heirs of Simeon Tinder by Sarah A. Tinder, his wife,” would not have been employed, since without them the deed would, under our statute, have vested the whole estate in her. The courts have no right to arbitrarily and causelessly reject the words of a deed. Shimer v. Mann, 99 Ind. 190. Words written in a deed are to be given effect, unless there is sufficient reason for disregarding them. Essick v. Caple, ante, p. 207. There is here no such reason. The words employed by the grantor can be given full effect and his obvious intention can'ied into effect by adjudging that the deed conveys the land to Sarah A. Tinder and her children by Simeon Tinder. In so adjudging we do no more than give effect to a very old rule of the law, one remounting to the case of Burchett v. Durdant, 2 Vent. 313. The rule has been approved by our own and other courts. Shimer v. Mann, supra; Vanorsdall v. Van Devanter, 51 Barb. 137; Heard v. Horton, 1 Denio, 165; Jack v. Fetherston, 9
The case before us is easily discriminated from one wherein the grantor attempts to create a particular estate and limit a remainder over. The attempt here was to vest in Sarah A. Tinder and “the' heirs of Simeon Tinder by Sarah A. Tinder, his wife,” the whole estate, and to vest it immediately. There was no purpose to create a remainder nor to do anything else than vest in Sarah A. Tinder and her children begotten by her husband Simeon a present estate in all the land conveyed. There was neither a dividing of interests nor a carving out of estates. The fact that there was no attempt to carve out a particular estate or create a remainder effectively marks this case as one belonging to a different class of cases from the class represented by such cases as Outland v. Bowen, supra; Moore v. Littel, 41 N. Y. 66; Gifford v. Choate, 100 Mass. 343; Ramsdell v. Ramsdell, 21 Me. 288; and Jones v. Bacon, 68 Me. 34. If there had been
An examination of particular instances will strengthen the conclusion we have declared. In the case of Fountain County, etc., Co. v. Beckleheimer, 102 Ind. 76, the words of the deed were, “ To have and to hold the same to the said Nancy West and her present heirs forever,” and it was held, after a full review of the authorities, that Nancy West and her apparent heirs took the estate in common. The restrictive words in the deed before us are unquestionably clearer and stronger than was the qualifying word “ present ” in the deed construed in the case to which we have referred. The deed which received construction in the case of Heath v. Hewitt, 127 N. Y. 166, conveyed land to “the heirs of Warren Heath,” a living person, and it was held to vest title in the children of Warren Heath. The court quoted with approval from Heard v. Horton, supra, this statement of the law : “ Where the will recognizes the ancestor as living, and makes a devise to his heir, eo nomine, this shows that the term was not used in its strictest sense, but as meaning the heir apparent of the ancestor named.” In the deed which occupies our attention, not only is the ancestor recognized as living, but it is also unequivocally indicated that the heirs meant are those of Simeon Tinder by his wife Sarah. By no possibility could such heirs be other than his and her children, and, as such, his heirs presumptive or apparent. There was, therefore, a grant to a particular class of persons, and not to heirs indefinitely. In the case of Tucker v. Tucker, 78 Ky. 503, the deed purported to convey land to “Ann Tucker and the heirs of John C. Tucker,” and the court gave judgment vesting title in Ann Tucker and her children, saying among other things, that “We are of the opinion that the word heirs, where the conveyance speaks of the heirs of John C. Tucker, should be taken as synonomous with children, and to have the same effect as if the names of the then living children (Poster and Rachel) had
The object of the description of a grantee in a deed is to supply the means of identifying the person to whom the land is granted. Neither the description of the thing conveyed nor a description of the person to Whom it is conveyed can of itself identify the person or thing; all that it can do is to furnish the means of establishing the identity. A description which effects that purpose is sufficient. The description of the grantees in the deed before us does supply the means of identifying all of the grantees, for no one can doubt that they were Sarah A. Tinder and her children by Simeon Tinder.
. The appellant’s counsel say that a man can not have heirs during life, and this is true of heirs in the strict legal sense, .but it is not true of heirs in the popular sense. If we could say that the word “ heirs ” was employed in its strict legal sense by the grantor in the deed before us, we might apply the maxim to which counsel refer, but the associated words take from the word M heirs ” its strict legal meaning. The word “ heirs ” can not have its strict legal meaning, and as it
Judgment affirmed.