
    Brockschmidt v. Archer et al.
    
      Devise by testator of certain lands to son for Kfe and at Ms , . -.death to his heirs — Buie in Shelley’s case — Land mortgaged by life devisee in fee simple — Foreclosure of mortgage and. order of sale for life of mortgagor — Sheriff’s deed to purchaser — Purchaser held possession over forty years — Action ■ by heirs of mortgagor against occupant — Held sheriff’s deed-conveyed legal title.
    
    1. Before the rule In Shelley’s case was, as to wills, abrogated in this state by 'the statute of 1840, a testator devised certain lands to his son for life, and at his death to go to his heirs, and, there being nothing else in the will to show that the testator used the word “heirs” to designate a more lim- ' ited class — as children: Held, That, as the lands passed under the will precisely as they would have descended at law, the son took an estate in fee simple in the lands- so devised.
    2. A mortgage in fee simple of certain lands was made to secure ■ an obligation of the mortgagor to the mortgagee; it was foreclosed and an order made for the sale of the land for the life of the mortgagor, and was so sold; on confirmation, a deed ■in fee simple was ordered to be made to the purchaser, and such deed was made to him by the sheriff; the purchaser went into possession under his deed, and he and his successors in title continued in the adverse possession of the property ' for over forty years when an action was commenced by the •■ heirs of the mortgagor against the present occupant under . .the title derived from the sheriff’s deed, to recover the land :• Held, That “the sheriff’s deed conveyed the legal title to the land, and the plaintiffs having at most but an equitable title, could not recover, without first obtaining a reformation of the deed. Held, further, That the right of reformation of the deed accrued to the mortgagor upon its execution and was barred long before the commencement of the action by the heirs to recover"the land.
    (Decided May 1, 1901.)
    Error to the Circuit Court of Montgomery county.
    
      Young & Young and McMahon & McMahon, for plaintiff in error.
    At the date of the will, Edward A. Peasley was a minor, and manifestly without children then living. There was no one living in whom the estate in remainder could vest. At the date of the deed he was not yet married and had no children. Carter v. Reddish, 32 Ohio St., 1; Smith v. Hankins, 27 Ohio St., 371.
    The rule in Shelley’s case was a rule of property and in full force as to wills at the date of this will; also as to deeds. McFeely v. Moore, 5 Ohio, 464; Armstrong v. Zane, 12 Ohio, 287.
    The rule laid down by Judge Read in the case of King v. Beck, 15 Ohio, 559, the case relied upon by defendant in error, is as follows:
    “If the estate for life, created in the devisee or donee, is limited precisely as it would descend at law, the rule in Shelley’s case vests the entire fee in the first devisee or donee.”
    By this rule we are willing to be governed. In the case of King v. Beck, supra, the will contained other provisions giving to the estate devised á different direction under certain circumstances. Yet this same will was unanimously held to convey a fee simple by a supreme court somewhat differently constituted. King v. King, 12 Ohio, 390.
    
      The application of the rule, in a case where it properly applies, is never excluded by explicit declarations that the title is for life only, etc. The . text books teach this as Avell as the cases.
    The title of Ed. Peasley being a fee simple, two questions are noAV to be considered:
    1. The possession under a tax deed and judicial sale under Avhich parties, since 1852, have been claiming and exercising ownership in fee simple.
    2. The title conveyed by the judicial sale, independent of the possession.
    Under the first heading: In 1852, Avhen Sullivan took possession under his tAvo deeds, the seven-year limitation laAV Avas in force. It Avas passed in 1849 and repealed in 1853 by the practice act. It can-be; found in 1 SAvan & Cr. Rev. Stat., p. 943 (notes) ; Scott v. Hickox, 7 Ohio St., 88.
    This was eminently a statute of repose. When the law Avas repealed existing rights were saved. 2 Swan & Cr., p. 941, Sec. 6.
    Under the second heading — as to the judicial sale: Edward Peasley gave a Avarranty fee simple mortgage. The court ordered a deed in fee simple. And such a deed was executed. Having the full legal title, and having so warranted, can his heirs now be heard to say that the proceeding conveyed only a life estate?
    If such a deed was improperly made, it Avas the act. of the court. Does not the legal title pass subject to equitable correction? In such case ejectment will not lie. •
    Assuming that Edward Peasley had but , a life estate, Avhat is the situation? He had no chil-. dren until after 1866, his first marriage. The will is. not to his “children” in remainder, ñor the deed, but to his “heirs.” The devise in remainder was not, therefore, to his “children.” Had he died prior to 1866 his brother, or nephew's, or wife, etc., wrnuld have taken as “heirs,” unless the devise and deed created only a life estate and left the remainder undisposed of by reason of no person to take; and, in that case, his share would be fee simple by merger in so much as descended undisposed of. What became of the estate in remainder said to be created by the.deed? Who w7as heir? Where wras it?
    When the proceedings to quiet title were brought, the suit w7as against the unknowns “heirs'of Edward A. Peasley.” This is the language of the will — also of the deed. Whoever wore “heirs of Edwmrd Peasley” answered the description of “devisees of Aaron Peasley,” and the notice was vastly better. One might know7 himself to be the heir of his father, and not know7 he was the devisee of his grandfather or other person. Hence if the advertisement can be sustained as within the law7, it would be better than the one claimed to be right.
    If an estate in remainder w7as created in the children of Edw7ard Peasley after they came into existence,. it w7as a vested estate, Edwrard having a life estate.
    A person in possession can have his estate quieted as against an estate in remainder prior to the expiration of the life estate. Rhea v. Dick, 34 Ohio St., 420.
    Now7 when counsel for Brockschmidt washed to make a better title how7 else could they proceed? Peasley had vanished and had not been heard of for years. It was not known where he was, or whether he was alive, or had children, or other heirs.
    . The law in such case provides a remedy, based upon such want of information.
    
      The “heirs of Edward Peasley,” whoever they might be, were the persons whose title was to be taken out of them. At the time of the suit the two children were in existence. If the title in remainder became executed at any time, it was then a vested estate in them, liable to be opened up to admit other Children, if born afterwards. This vested estate was not contingent. It could have been sold. Now suppose that Edward had had no children, but nephews and nieces? If the suit had been brought against the “children of Edward Peasley,” under the impression that he had children, the publication would have been worthless as against nephews and nieces. The law, knowing that it was sometimes impossible to find out “heirs” provides for such cases in general terms intended to cover every case. And it seems to us that to describe such persons in the exact language under which they must take is a complete compliance with the statute. They are a class of persons to be discovered by ascertaining their heirship to Edward Peasley. When that is accomplished they are devisees.
    As to the alleged irregularities in the tax deed. Sheldon’s Lessee v. Coates, 10 Ohio, 278; Ward v. Barrows, 2 Ohio St., 241; Sec. 4114, Rev. Stat., 66 Ohio Laws, 338.
    After the lapse of forty years accompanied by open and notorious adverse possession, courts will make many presumptions in favor of repose. See 7 Am. L. Rec., 411; Fitzpatrick v. Forsythe, 6 Dec. (Re.), 682.
    
      Humphrey Jones, for defendants in error.
    There are two apparently conflicting provisions in this will. Under the first provision Edward A. Peasley in unquestionably given a fee simple estate in said premises, the following language- being used to create the same: “The whole to the said Edward and his heirs in fee simple.”
    But in the concluding clause of .the will and immediately preceding the testatum clause the testator declares in explanation of Ms intention, that the devises to his sons, Edward and Theodore, are, “to be to them respectively during their natural lives, but so that they nor either of them cannot in their lifetime dispose of the same for any longer period than during their respective lives — giving each of them only a life estate in the land so devised to them, and after their deaths, the property to be to their respective heirs at law in fee simple.”
    It is a familiar rule in the construction of wills that in cases of apparent repugnancy and conflict between two provisions of the will, that, the last one shall be given effect in preference to the first one appearing in the will. Jarman on Wills, 473; Coonrod v. Coonrod, 6 Ohio 114; Young v. McIntire, 3 Ohio, 498; Parker v. Parker, 13 Ohio St., 95.
    It is the last clause of this wrill, therefore, which is of controlling importance, in its construction.
    The ordinary and usual import of the language, employed in this clause, uncontrolled and unrestricted by any technical rules of construction, would vest, a life estate in Edward A. Peasley, and a fee simple estate in remainder in his heirs at law. By statute in Ohio now, such would be its effect: (Sec. 5968, Rev. Stat.)
    This provision was first enacted- in 1840 (Swan’s Statutes, 999), but as the will in question took effect in 1837, it is not controlled by the provisions of this legislation.
    
      This statute had the effect to abolish, as to wills, the rule in Shelley’s case in Ohio.
    It is contended that under the rule in Shelley’s case Edward A. Peasley took a free simple estate by virtue of the will in question, and the real question involved here is, whether the construction of this, will shall be controlled by the technical provisions of this rule, or whether effect shall be given to the plain, clear intention of the testator as evidenced by the language employed, giving to the words used their ordinary nsuál meaning. ^
    The rule in Shelley’s case may be stated as follows:
    “Where a freehold is limited to one for life and by. the same instrument the inheritance's limited, mediately or immediately, to his heirs, or to the heirs of his body, the first taker takes the whole estate either in fee simple or in fee tail, and the words, ‘heirs’ or ‘heirs of his body,’ are words of limitation and not words of purchase.” King v. King, 12 Ohio, 390.
    Coke states the rule in somewhat different language, as follows: “When an ancestor by any gift or conveyance' taketh the estate of freehold, and in the same gift or conveyance the estate is limited, either mediately or immediately, to his heirs in fee or in tail, the heirs are words of limitation of the estate and not words of purchase.”
    This rule has been recognized by this court and ap-. plied with considerable strictness to deeds, but less strictly to wills. .The earlier .decisions of this court favored a stricter and more technical application of the rule. McFeely v. Moore, 5 Ohio, 464; Armstrong v. Zane, 12 Ohio, 287.
    This court, as we. think, in the case of King v. Beck, 15 Ohio, 559, abandoned the former strict and technical application of the rule in Shelley’s case and adopted the opposite rule of construction, and the decision in this case has stood unquestioned for more than fifty years, and must now he accepted as the settled law of Ohio on the subject. Preston on Estates, 271; Shriver’s Lessee v. Lynn, 2 Hen., 43.
    It is a principle of law that where one, by his will, gives to another who is his heir at law, precisely, what that heir would take by descent if his ancestor liad died intestate, he will be treated as teiking it by descent, instead of by devise.
    ‘ The rule in Shelley’s case is another application of the same legal principle. This court, in King v. Beck, supra, has taken that view, for it says, at page 582 of said case: “If the estate for life, created in the devisee or donee, is limited precisely as it would descend at law, the rule in Shelley’s case vests the entire fee in the first devisee or donee.”
    One is not the “heir” of another in this sense as to the property or rights not derived from that other or which never belonged to the other, though he may be the person upon whom descent would be cast upon the death of the other.
    It is wrell settled that if the word “heir” is used by the testator in this latter sense, that is, simply as dcsignatio personae, it does not have the effect to vest ■in the first devisee the entire fee, but he has only a life, estate. Stevenson v. Evans, 10 Ohio St., 307; Jones v. Floyd, 33 Ohio St., 572; Collier v. Collier, 3 Ohio St., 369.
    The divergence between courts in the interpretation and application of the rule in Shelley’s case arises largely from their differing views as to what circumstances surrounding the testator and what language in the testament will be allowed to control the meaning of the -word “heir,” as employed in the will so tliat it shall be interpreted otherwise than in its strict legal sense.
    This is well illustrated by the views of this court in reference to the language of the will of William King, in the two cases of King v. King, 12 Ohio, 390, and King v. Beck, 15 Ohio, 559.
   Minsk all, 0. J.

The suit below was an action in ejectment brought by the children of Edward A.Peasley, Flora Archer and Willi am E. Peasley, against William Broclcschmidt, to recover- the possession of some twenty acres of land, claiming to be the owners of it, — situate in Montgomery county. The defendant in his answer denied the averments of the petition; and, in an amended answer, claimed that the plaintiffs were estopped from setting up their claim by a judgment rendered in his favor in a suit to quiet title instituted in 1890, to which they were made parties as “the unknown heirs of Edward A. Peasley.”

The plaintiffs claim title under the will of their grandfather, Aaron M. Peasley, admitted to probate April 29, 1837, he having died in that year. The provisions of the will applicable to the case are as follows :

“I devise to my son Edward A. Peasley all the rest and residue of said tract of land as purchased of said Brown, * * * the whole to the said Edward and his heirs in fee simple * * * I hereby in explanation declare it to be my will that the parcels of land herein-before devised to my two sons, Theodore and Edward, is to be to them respectively during their natural lives, but so that they nor either of them cannot in their lifetime dispose of the same for any longer period than during their respective lives, giving each of them' only a life estate in the land so-devised to them, and after their deaths, the property to be to their respective heirs at law in fee simple.”

The lands in dispute are covered by the devise. Edward A. Peasley died in December, 1893, leaving the plaintiffs as his only children' and heirs.

In 1850 Edward A. Peasley executed a ' mortgage upon the premises to one Shonenberger; it conveyed the land in fee simple to the mortgagee with covenants of warranty to secure an obligation of the mortgagor to the mortgagee. The obligation not having been pérformed suit was brought in 1851 to foreclose it. A decree was taken for the sale of the life estate of Peasley in the land, the land Avas sold to one Sullivan, the sale was confirmed and a deed in fee simple was ordered and made to him by the sheriff. He also had an auditor’s deed made upon a sale of the land for delinquent taxes of the same date of his sheriff’s deed. He at once took possession of the land, Avhieh re1 mained in him and his successors in title down to and including the defendant Avho purchased and took possession in 1885. The suit Avas commenced in 1894. The possession of the defendant and his predecessors from 1852 Avas open, notorious and exclusive and under color of title. These facts are not disputed; and the following questions arise: 1. What estate in the land did Edward A. Peasley take under the will óf his father, Avas it a life estate or a fee simple under the rule in Shelley’s case, the will having been made and probated before this rule was . abrogated by statute in 1840; and, 2, if under this rule he took a fee simple, have the children on the undisputed facts the right to maintain the action? The court of common pleas rendered judgment for the plaintiffs and the judgment was affirmed on error by the cireuit court.

1. As stated, at the time the will of Aaron M. Peasley was made, the rule in what is known as Shelley’s case was still in force as to wills as well as to deeds and other conveyances of land. It was not a rule of construction but of property. The rule is accurately stated by Lane, J., in McFeely v. Moore, 5 Ohio, 466, as follows: “Where the ancestor takes a freehold for life, and by the same conveyance, whether a deed or devise, is limited, either mediately or immediately, to his heirs, the word ‘heirs’ is a word of limitation, not of purchase, and the fee- vests in the ancestor,” citing 1 Rep., 104. See also, King v. Beck, 12 Ohio, 471, and Armstrong v. Zane, 12 Ib., 287.

The rule is «said to be of feudal origin, and was intended to secure to lords the fruits incident to inheritances ; but it was also not without other reasons of considerable force. (Perrin v. Blake, Harg. Tracts, 493.) In the limitation of estates it was felt among other things to be a matter of importance that there should be words to which a definite meaning could be attached to avoid the confusion and uncertainty that would otherwise arise, and for the purpose of designating the limitation of a fee simple, the largest estate a freeholder could have in lands, the word “heirs” was adopted, so that when an estate was made to one and his heirs, he acquired the full and absolute dominion over the land, and could dispose of it as he saw fit. The heirs acquired no vested interest in the estate; they had a mere expectancy, or the right to inherit the land at his death if he had not disposed of it in his lifetime by deed or will.

In the application of the rule the intention of the testator, as .to. the estate to be taken by the ancestor has never been a. matter of consideration. It is said. by Justice Blackstone in Perrin and Blake: “I believe there never was an instance when an estate for life was expressly devised to the first taker, that the devisor intended he should have anything more. But if he afterwards gives an estate to the heirs of the tenant for life, it is the consequence or operation of the law that in this case supervenes his intention and vests a remainder in the ancestor: which remainder, if it be immediate, merges his estate for life, and gives him the inheritance in possession; but if mediate only, by reason of some interposing estate, then it vests the inheritance in the tenant for life, as a future interest, to take effect in possession when the interposition is determined. And therefore it has frequently been adjudged, that though an estate be devised to a man for life only,' or for life et non aliter, or with any other restrictive expressions; yet, if there be afterwards added apt and proper words to create an estate of inheritance in his heirs, or the heirs of his body, the extensive force of the latter words shall overbalance the strictness of the former, and make him tenant in tail or in fee.”

In conveyances made by,deed the rule was rigidly adhered to, because such instruments were generally made on mature consideration, as well as under the advice of counsel, but it was somewhat relaxed at common law in favor of wills where the same opportunity did not always exist in the case of testators. This relaxation, however, extended only to the use of the word “heirs,” for however explicit the purpose of the testator may be shown to have been, from the language of the will, to give only a life estate to the ancestor, if the estate is then limited, mediately or immediately, to heirs, without anything else in the will to show that he had used the word .“heirs” in a limited sense, the devisee took an estate in fee simple. Thus where the estate is limited to the ancestor for life and at his death to his heirs, with a further limitation, that in case he should die without heirs, then over to his brothers and sisters and their heirs, the limitation over was held to show that he had used the word “heirs” not in its technical sense, but as embracing children only; and so the will in such case was construed as if the .testator had used the word “children” instead of the word “heirs” in connection with the estate limited to the ancestor. The case of King v. Beck, 15 Ohio, 559, determined on a rehearing of the same case, 12 Id., 390, illustrates this rule of construction. There it will be observed, that the devise was to the testator’s brother Christian of all his property,, to be used by him while he lives, and at his death to go to “his heirs or heirs born in lawful wedlock,” and should he die without such heirs, then over to the children of two of his sisters, naming them. This devise over, as the court held, showed that the testator had used the word “heirs” in the sense of children, for if he had used it in its technical sense there could have been no devise over to the children of his two sisters, and the estate would have gone to his heirs general; and although the rule in Shelley’s case then applied to wills, the brother of the testator was held to have .taken a life estate only. One of the four situations pointed out in Perrin v. Blake in which the word “heirs” may be construed as a word of purchase, is where the testator has added fresh limitations, and grafted words of inheritance upon the heirs to whom he gives the estate, whereby it appears that these heirs were meant by the testator to be the root of a new heritance — -the stock of a new descent; and it will be observed that the ease of King v. Beck falls within this category. The judge in delivering the opinion in the case says: “If the estate for life created in the devisee or donee is limited precisely as it would descend at law, the rule in Shelley’s case vests the entire fee in the first devisee or donee.” Such is the fact in the case before us and distinguishes that case from this. The testator first gives to his son Edward an estate for life in the land, and at his death it is to go to his heirs. There is no devise over in case he should die without heirs, nor is there anything in the will to show that he used the word “heirs” in any other than the usual sense in law, except that he gave a life estate to his son, which as we have already shown, in no way affects the application of the rule. On the death of Edward the property is to go precisely as it would at law — to his heirs. It therefore follows that under the will of his father, Edward took a fee simple estate in the land devised to him.

2. We come then to the question whether the action of the plaintiffs can be maintained under the circumstances of the case. We think not. The sheriff’s deed, notwithstanding the fact that a life estate had been ordered sold, was made in pursuance of the order of court, and conveyed to the purchaser the legal title in fee simple; and, without a reformation, the plaintiffs cannot recover the land against one having the legal title. They have but an equity at most. They did not ask for a reformation of the deed, and a recovery on.it as reformed; and, had they done so, the def^daut might have well plead the statute of limitations to such an action. The deed was executed in 1852, and the purchaser then went into possession, and he and his successors in title • down to and including the defendant, have ever since •been in the open and notorious adverse possession of the land claiming title in fee simple.

■ The right to reform the deed accrued to the mortgagor on the execution of the deed, for it deprived him of his reversionary estate in the land, which he might, otherwise, have disposed of for value, although it could only take effect in possession on the termination' of his own life. One who takes in the quality of heir takes no new estate in the land; he simply succeeds to the estate of his ancestor. This is the legal distinction between an heir and a purchaser. When Edward Peasley died in 1893, his heirs simply stepped into his shoes with such rights in regard to the land as he had at his death. They were his real representatives, and if his right to recover the land or reform the deed in any form of action was barred, they Avere likewise precluded from doing so by the same bar. This makes it unnecessary for us to consider any of the other grounds of defense relied on by the defendant below.

Judgment reversed; and judgment on the undisputed facts for the defendant below.

Williams, Burket, Spear and Shauck, JJ., concur; Davis, J., absent.  