
    Christina Broadstone v. Samuel Brown et al.
    Motion for leave to file petition in error to the District Court of Greene county.
    This is a suit for partition. The petition avers that, in 1842, Jacob Synif and wife, for a valuable consideration, conveyed by their deed, duly executed and delivered, the premises therein described to their daughter, Eve Brown, and the heirs of her body forever; that, at the time of the conveyance, Eve Brown was the wife of the defendant, Samuel Brown, and died in 1855, leaving surviving her five children, the issue of her body by Samuel Brown ; that the plaintiff and two of the defendants are three of .said children ; that, at the death of said Eve Brown, said five children became tenants in common of the premises in the deed described, and entitled to the possession thereof, etc.; that, since the death of Eve Brown, said Samuel has purchased the interests of the other two children in said premises, whereby he became tenant in common with the plaintiff and the other defendants, wherefore said plaintiff prays partition.
    To this petition the defendants demurred. The Common Pleas sustained the demurrer. The District Court, on error, affirmed the ruling of the Common Pleas, and to reverse this ruling, leave is asked to file a petition in error.
    
      William Craighead, for plaintiff in error:
    The deed from Synif to Eve Brown vested a life estate only in her, and an absolute estate in fee simple in the heirs of her body. S. & C. 550; Pollock v. Speidel, 17 Ohio St. 439.
    Our statute of entailments declares the effect of this deed at the time it was executed. It fixed then the measure of ownership or interest of the first donee in tail, and declares it a life estate only. To give this statute effect, it must necessarily cut off all claim of curtesy in the husband, and dower in the widow, in estates such as the one created by this deed.
    The statutes of Connecticut, 1874, 1821, 1838; Vermont, 1839; Illinois, 1833; Missouri, 1835; New Jersey, 1820, and Arkansas are similar to our own. .For- construction of these statutes, see Burris v. Page, 12 Mo. 358; Whiting v. Whiting, 4 Conn. 179; 1 Scribner, 269, chap. 13.
    Curtesy never existed at common law in such an estate. The estate in the wife created by the deed is not an estate of inheritance, within the meaning of the common law, so as to entitle the husband of the first tenant in tail to curtesy.
    In this case, the issue take as being of the prescribed line of issue or inheritance, and not by direct descent from their immediate ancestor, since they take per formam doni from the person who first created the estate. 1 Cruise Dig. 83; Partridge v. Dorsey, 3 Har. & J. 302; Perry v. Kline, 12 Cush. 127; 2 Sim. 249; 2 Atk. 47; Hamilton v. Hampstead, 3 Day (Conn.), 332; Wells v. Olcott, Kirby (Conn.), 118.
    It is a familiar principle that, where there exists a contradiction between the granting clause of a deed and the habendum clause, if the grant be definite in limiting the estate, and that of the habendum is clearly repugnant, the habendum yields to the terms of the grant. 15 Md. 63; 3 Gill, 236; 3 Washburn on Real Property (3 ed.), 319.
    But we can give effect to both these clauses in this deed, Without yielding our proposition, by construing the deed as first creating an estate tail, and that so long as she has issue of her body to take, they take as tenants in tail; but on failure of such line of issue, the estate would go by virtue of the habendum to Her heirs generally.
    But, in this instance, the court need not look any further than the granting clause. It finds issue of the body of the first donee in tail, existing and claiming. Corbin v. Healy, 20 Pick. 515; Ross v. Adams, 4 Dutch. (N. J.) 168; 1 Washburn on Real Property (3 ed.), 92.
    
      —Nesbitt, for defendant in error.
   "White, J.

This case was considered in connection with the case of Harkness v. Corning, supra, and the principle announced in that ease determines this.

The only difference in the two cases is, in that case the estate in fee tail was created by will; in the present ease, it is created by deed. The right to curtesy is not affected by the difference in the mode in which the estates were, created.

There was no error in sustaining the demurrer to the petition.

Leave refused.

Hat, C. J., McIlvaine, Welch, and Rex, JJ., concurring.  