
    Small and Others v. Howland and Others.
    Complaint in three paragraphs to recover land—1. In the usual form. 2. Upon a title-bond, for a conveyance of a life estate, remainder to heirs, given by A. to his daughter B., alleging that since its execution A. had died, and that neither he nor his heirs had conveyed; that B. was also dead, and the plaintiffs wore her heir's. 3. Like the second, adding that, through the ignorance of A. and the person who prepared the bond, a mistake occurred therein by using the word heirs instead of the word children, they using the former as synonymous with the latter, and intending the latter; that B. was put in possession as tenant for life. Answer, 1. The general denial to the first and second paragraphs, and that A. did not execute the bond. 2. That A. did not execute the bond, minutely setting forth the facts relied on. 3. That after the death of A., B. and her husband instituted proceedings in chancery against A.’s heirs, on the bond, and obtained a decree and a deed in fee (the said heirs consenting thereto as an advancement), and entered upon the land and took it as their distributive share, &c., and, whilst so in possession, mortgaged the same to C., who foreclosed, and bought in the land at the sale under his decree, and O. sold the land to the defendant, who, not relying upon said sale as convoying any interest other than that which descended to B. and the wife of C. (who was also a daughter of A.), on the same day took a quitclaim deed from the other heirs of A.
    
    
      Held, on demurrer to the last paragraph of the answer, that the proceedings in chancery vested the fee simple in B., and consequently the plaintiffs had no title.
    
      Thursday, August 23.
    
    APPEAL from the Marion Circuit Court.
   Per Curiam.

This was a suit by the appellants to recover certain described lands, &c.

There were three paragraphs in the complaint, to-wit—

1. In the usual form prescribed by statute for the recovery of lands.

2. Based upon a title-bond given by John Smock to his daughter Leah Small, and alleging that since its execution Smock had died, and that neither he nor his heirs had executed a deed in pursuance of said bond; that Leah Small was also dead, and plaintiffs were her heirs and children, &c.

3. Setting forth the facts averred in the second paragraph, and alleging further that, in consequence of the ignorance of the said Smock and the person who prepared said bond, a mistake occurred therein in using and inserting the word heirs therein, instead of the word children, they supposing and using the term heirs as synonymous with the word children, and meaning and intending the latter; that said Leah was put in possession as tenant for life, &c.

The said bond is as follows:

“ Know all men by these presents, that I, John Smock, of,” &c., “ am held and firmly bound unto Leah Small, her lifetime, and to no other person, and after her death to her heirs forever, in the penal sum of,” &c., “which payment well and truly to be made, I bind myself, my heirs,” &c., “firmly by these presents, sealed,” &c., “and dated this 6th day of January, 1827. The condition of the above obligation is such that if the above-bound John Smock, his executors,” &c., “or either of them, shall well and truly make, or cause to be made, to the above-named Leah Small, her lifetime, and after her death to her heirs forever, a good and sufficient general warranty deed to the west half,” &c., “on or before the first of January, 1828, then the above obligation to be void,” &c.

It is also averred in the second paragraph of the complaint, that “the word heirs as used in said title-bond means, and was used and intended to mean, the children of said Leah Small, and that is its legal effect as used.”

The defendant, Powell Howland, answered—

1. A general denial to the first and second paragraphs of the complaint, and that the bond mentioned in said second paragraph was not executed, &c., by said Smock.

2. That said Smock did not execute said bond, &c., (minutely setting forth the facts relied upon).

3. Setting up that after the death of Smock, Leah Small and her husband instituted such proceedings in chancery against the heirs of said Smock, on said bond, as resulted in obtaining a decree, and commissioner’s deed based thereon, for said land, conveying the same in fee simple to said Leah, &c., the heirs of Smock consenting thereto as an advancement, &c.; that Small and wife entered upon said land, and took as their distributive share, &c., and whilst so in possession, to-wit, on the 19th day of October, 1839, they mortgaged the same to one Adam Pence, &c.; and that upon failure to pay, &c., said Pence procured a decree of foreclosure, &c., of said mortgage, at the November term, 1840, upon which such proceedings were had that said property was sold on the 30th day of January, 1841, for the sum of 100 dollars, to said Pence; and afterwards, on the 31st day of December, 1841, said Pence sold the same to said Howland, who, not relying upon the said sale, &c., as conveying to him any interest except that which came by descent to said Leah, and the wife of said Pence, as daughters of John Smock, &c., on the same day took a quitclaim deed from the other heirs of said Smock, &c.

The other defendants, being the heirs of Smock, &c., disclaimed any interest, &c.

To the last paragraph of the answer of Howland, a demurrer was filed, assigning for cause that the same did not state facts sufficient, &c., nor file the deeds relied on, and that the defendant was estopped from setting up the matters averred in said paragraph.

The demurrer was overruled. This presents the first question for consideration.

The second and third causes of demurrer are not noticed in the brief of appellant, and, under the rule, will be considered as waived.

Under the first cause, it is insisted that as the present plaintiffs were not parties to the chancery proceedings of Small and wife to obtain a title, they are not concluded thereby. But one of the plaintiffs was born at the time said proceedings were instituted in 1828;' the others afterward and before 1854, at which time their mother, Leah Stnall, died.

Whether they were in any manner concluded by the proceedings in chancery in 1828, depends upon whether any title they might have derived to said property, in consequence of the facts stated, would have been so derived directly from their grandfather by virtue of said title-bond, or through their mother.

It is urged by the appellants that they do not derive title through their mother; that this is not a case in which the rule in Shelly’s case should apply; that it was manifestly the intention of the obligor in the bond, to bind himself to convey only a life estate to Leah Small, and the inheritance to her children; and that even if this is not so, the rule in Shelly’s case cannot apply to executory contracts, of which this is one.

E. Dumont, O. B. Torbet, J. L. Ketcham, and I. Coffin, for the appellants.

L. Barbour and A. G. Porter, for the appellees.

The appellee relies upon that rule, on this point, which is, as stated by Blackstone: “If an estate be made to A. for life, remainder to his right heirs in fee, his heirs shall take by descent; for it is an ancient rule of law, that whenever the ancestor takes an estate for life, the heir cannot, by the same conveyance, take an estate in fee by purchase, but only by descent.” Book 2, p. 242. And he further says that “the word ‘heirs,’ in this case, is not esteemed a word of purchase, but a word of limitation, inuring so as to increase the estate of the ancestor from a tenancy for life to a fee simple.” Ibid.

Upon issues formed and trial had, there was a verdict and judgment for the defendant.

In view of the conclusion which we have arrived at, it is not necessary to notice some points presented by counsel.

We are of opinion that the proceedings in chancery in 1828, vested the fee simple in Leah Small; consequently the plaintiffs in this case had not, at the time of the commencement of the suit, any title.

The judgment is affirmed with costs.  