
    Mary A. Pollock et al. v. Elias Speidel.
    1. In tho act of December 17,1811, “ to restrict the entailment of estates ” (S. & C. 550), the clause which provides “that all estates given in tail shall be and remain an absolute estate in fee-simple to the issue of the first donee in tail," was intended to limit entailments then subsisting, as well ■as those which might be thereafter created.
    2. The enactment, thus construed, was not a prejudicial interference with vested rights, nor beyond legitimate legislative power.
    
      3. Therefore, where an estate in tail was created by deed, in 1807, and the issue of the first donee in tail sold and conveyed the premises in fee-simple, in 1836, by deed with covenants of general warranty, both ha and his heirs were thereby forever estopped to claim title to the premises against the grantee of such issue or his assigns.
    Error to the District Court of Clermont county.
    The original action in this case was brought in the Court-of Common Pleas of Clermont county, by the plaintiffs in error, who are the children and legal heirs of the body of James Pollock, deceased, to recover the possession of certain real estate of which they claim to be seized in fee-simple, and of which they allege the defendant unlawfully holds the possession.
    The defendant, by answer, denies the title of plaintiffs, and sets up title in himself.
    Upon these, issues the cause was submitted to the court, a jury being waived; and the plaintiffs offered in evidence a deed from John Pollock, the grandfather of plaintiffs, to James Pollock, their father, dated March 30, 1831, conveying the lands in dispute “ to the said James Pollock, the heirs of his body, and assigns forever.”
    Counsel also submitted to the court an agreed statement of facts, as follows :
    I. That James Pollock died in 1855 or 1856, leaving the plaintiffs, his children, and ldgal heirs of his body.
    II. And that the property in controversy in this suit is the identical property described in the deed from John Pollock, Sr., to James Pollock, dated March 30, 1831.
    III. That James Pollock sold, by deed of general warranty, to Emmanuel Hawn, the property in controversy, on the 1st day of December, 1836. Book of deeds, M 2d, p. 442.
    IY. That Emmanuel Hawn conveyed, by general warranty deed, said premises, on the 28th of November, 1839, to John N. Catch. Book of deeds, T 2d, p. 27.
    Y. That said John N. Catch conveyed to defendant the premises, by general warranty, on tbe 1st day of October, a. d. 1841. Book of deeds, Y 2d, p. 155.
    YI. That E. Hawn went into possession of the premises on the day of the execution and delivery of his deed, and that they, Gatch and Speidel, have been in the actual possession thereof since that date.
    YII. And that the considerations expressed in the deeds from James Pollock to Hawn, from Hawn to J. N. Gatch, and from Gatch to Speidel, were valuable considerations, and that J ames Pollock died leaving assets to his heirs.
    Upon the state of facts thus shown, the court rendered judgment in favor of defendant, Speidel.
    The judgment was subsequently reversed by the Supreme Court of this state, its decision being fully reported in 17 Ohio St. 489.
    The case having been remanded to the Court of Common Pleas, came on for trial de novo, at the June term of that court, 1868, when the plaintiff offered the same evidence as on the former trial; and the defendant offered in evidence a deed from John Pollock, Sr., the great-grandfather of the plaintiffs, to John Pollock,- their grandfather, dated June 15, 1807, conveying the same lands “ to the said John Pollock, Jr., the heirs of his body, and assigns forever.” To the reading of this deed in evidence, the plaintiffs objected; but the court overruled the objection, and the deed was read in evidence ; to which plaintiffs took an exception.
    In addition to the facts agreed upon at the former trial, the parties further agreed upon the following :
    I. That John Pollock, who, together with his wife, Ann Pollock, executed and delivered the deed to John Pollock, Jr., dated June 15, 1807, was the great-grandfather of the present plaintiffs in this action.
    II. That John Pollock, Jr., the grantee in said deed, was the son of John Pollock, Sr., and Ann Pollock, and the father of James Pollock, the grantee mentioned in the deed dated March 30,1831, and that the present plaintiffs are the legal heirs of the body of the said James Pollock, and the grandchildren of John Pollock, Jr.
    
      III. That John. Pollock, Jr., left some five children besides James Pollock, the grantee in the deed dated June 30, 1831. And it is further agreed that both the above deeds cover the same lands.
    No further evidence being offered by the parties, the cause was submitted to the court upon the evidence offered in the case and the agreed statements of fact, and the court again found for the defendant; and, after overruling a motion for a new trial, made by plaintiffs, rendered judgment for the defendant.
    On proceedings in error, instituted by the plaintiffs, this judgment was subsequently affirmed by the District Court of Clermont county, and they now seek to reverse this judgment of affirmance.
    
      T. M. Leiois and W. A. Townsley, for plaintiffs in error:
    We claim that the decision of this court, made in the case, and reported in 17 Ohio St. 439, is correct, and that we are now, as then, in harmony with the principles there decided.
    We claim that viewing the paper of the date of June 15, 1807, to wit, the deed from John Pollock, Sr., to John Pollock, Jr., in the light of the law as it then stood, the grant being made to John Pollock, Jr., the heirs of his body, etc., vested at the time the fee-simple title in the said John Pollock, Jr., and not a life estate merely; that he became the root of a new inheritance, with power to alien the property in fee, or otherwise, as he might choose. ■
    In Ohio the rule in Shelley’s case was in full force, and unrestrained in its application, until the passage of the act “ to restrict the entailment of estates,” passed December 17,1811. That act provides “that all estates given in tail shall be and remain an absolute estate in fee-simple to the issue of the first donee in tail.” S. & 0. 550.
    This statute does not forbid the creation of estates tail, but clearly recognizes such estates. It is restraining in its operation, and points to the persons who shall take the fee.
    While the rule in Shelley’s case declares the fee-simple title in the first donee in tail, the statute declares that an estate tiras granted “ shall he and remain an absolute estate in fee-simple to the issue of the first donee.”
    We claim, therefore, that by the paper dated June 15, 1807, John Pollock, Jr., the grantee, took a fee-simple estate in the 110 acres of land now in controversy. And we claim this by virtue of the rule in Shelley’s case, there being no statute in Ohio at that time to interfere with the application of that rule. This court has already decided that by force of the words uheirs of his body,” when used in a deed, the grantee clearly takes an estate in fee tail. Such estates are peculiarly within the power of the rule in Shelley’s case, when not otherwise restrained. 4 Kent, 215, 226; Fearne on Contg. Remainders, 28, 76, 196; 4 Cruise, 370; 1 Hilliard on Real Prop. (3 ed.) 516; Lessee of Bond v. Swearingen, 1 Ohio, 395; King v. Beck, 15 Ohio, 559; Turley v. Turley, 11 Ohio St. 174; Dolt v. Cunnington, 1 Bay, 453; Polk v. Faris, 9 Yerg. 209; Ray v. Garnett, 2 Wash. 9; 1 Dallas, 47; Brant v. Gelston, 2 Johnson’s Cases, 384.
    The New York case last above cited, is a parallel case to the one in hand, and the same reasoning and the same ruling are applicable. And taking that case as authority, the Shelley rale must govern the decision in this case, there being no statute in Ohio at the time of the execution of the deed from John Pollock, Sr., to John Pollock, Jr., to interfere with the operation of the rule.
    But let us for a moment leave out of view the rule, and ascertain how this case would stand. In that event, we claim the case would stand thus :
    1. By the paper dated June 15, 1807, John Pollock/Jr., the grantee named, took a life estate without the power to alien the fee.
    2. At the death of John Pollock, Jr., James Pollock, the heir of the body of John Pollock, Jr., took also a life estate, with the same lack of power.-
    3. At the death of James Pollock, the present plaintiffs, who are the heirs of the body of James Pollock, are entitled to their terms for life.
    
      •That term these plaintiffs have not yet enjoyed, and in the absence of the rule in Shelley’s case, the court below erred in so construing that paper as not to give it to them. Williams on Real Prop. 59 ; 1 Wash, on Real Prop. 73.
    The paper in question, as we claim, should be so construed as to give these plaintiffs- a life estate without the rule, or apply the rule and give them the fee. At the time the rights of the parties were fixed by that paper, the rule in Shelley’s case was held by the courts in Ohio, as well as in other states, to be a binding rule of property. And we claim that the rule should be applied to the case now in hand.
    
      P. P. P. F. Swing, and J. S. <$• T. A. Griffith, for defendant in error:
    We claim that the decision of the Court of Common Pleas was in harmony with the decision of this court made in this case (17 Ohio St. 439), and that decision decisive of this case ; and that the statute of 1811 (S. & C. 550) did not affect in the least the estate in the lands of the first donee in tail. This statute recognizes the first donee in tail as holding an estate for life only as tenant in tail.
    John Pollock, the first donee in tail in the deed of 1807, could not, by the deed of 1831, sell and convey to James Pollock the estate in fee-simple. All that he had power to convey was his life estate. Turley v. Turley, 11 Ohio St. 180; 17 Ib. 447.
    The court has by its decision in this case, 17 Ohio St. 439, fully settled the following propositions :
    
      First That estates tail do exist and are recognized in Ohio.
    
      Second. That the first donee in tail holds a life estate only.
    
      Third. That the entail can not be barred by an ordinary ■conveyance in fee-siinple executed by the first donee in tail.
    
      Fourth. That the words used in the deeds in this case cJ early create an estate tail.
    Now if we test this case by the foregoing principles, we find that by the words used in the deed of 1807, an estate tail was created, and that John Pollock, Jr., the first donee in tail, had only a life estate; that he had no power by an ordinary conveyance, executed by him, to bar the entail, and that the deed dated March 30, 1831, was an ordinary deed of conveyance, executed by John Pollock, Jr., the first donee in tail, to James Pollock, and did not convey the fee to the real estate in the deed mentioned.
    The rule in Shelley’s case can not be applied in this ease unless the court reverses its decision made in this case, 17 Ohio St. 439. This rule, in the later decisions of our Supreme Court, has not been regarded with great favor. King v. Beck, 15 Ohio, 562; Turley v. Turley, 11 Ohio St. 182.
    The rule in Shelley’s case is not abolished by the statute of 1811. McFeely’s Lessee v. Moore, 5 Ohio, 465; Armstrong v. Zane, 12 Ohio, 287.
    If the foregoing authorities be correct, and in regard, to this we think there eau be no doubt, the statute of 1811 did not, as is claimed by the counsel for the plaintiffs, abolish the rule in Shelley’s case. And if that rule was the law of Ohio in 1807, it was the law of Ohio on- the 30th day of March, 1831, and was properly applied by the court in defeating the plaintiff’s recovery.
    If the court should, however, be of the opinion that the rule in Shelley’s case was not applicable to the deed of conveyance to John Pollock, it then becomes necessary to inquire what was the effect of the statute upon the estate so created.
    We claim that by this deed John Pollock took an estate tail, which, by the force and effect of this statute, was enlarged into an absolute estate in fee-simple in his issue, of which he had six, James Pollock, the father of the plaintiffs, being one.
    That it embraced all estates, those created before, as well as those created after its passage.
    The power of the legislature to pass an act to affect existing estates in this manner will hardly be denied. 16 Ohio, 251; 8 Wheat. 110; 2 Denio, 35; 1 Comst. 491; 11 How. 297; 10 Ib. 401.
    . We think, taking into consideration the object of the legislature in the passage of this act, and the terms and spirit of the act itself, that it is clear that this estate came within its provisions, and that it vested an estate in fee-simple in the children of John Pollock, Jr. We think such a construction is in strict accordance with the construction of the courts of the other states upon their statutes of similar import. 3 Shepley, 468; 2 Mass. 447; 1 Kirby, 119; Ib. 175; 3 Day, 339; 1 Hill’s Ch. 165; 1 Call. 143.
   Scott, Chief Judge.

The assignments of error in this case draw in question the relevancy of the deed of John Pollock, Sr., to his son, John Pollock, Jr., the grandfather of the plaintiffs, executed in 1807, and the legal effect of said deed, taken in connection with the other testimony and the facts admitted by the parties.

Plaintiffs claim that there is nothing in the terms of this deed to change the rights of the parties, as shown by the evidence on the first trial, under which it was held by the Supreme Court, in 17 Ohio St. 439, that the plaintiffs were entitled to judgment. But we think this is a mistake.

When the Supreme Court passed upon this case, as it was then presented, both parties were claiming under John Pollock, Jr., as the common source of their title, and it was not disputed that he held the title to the premises in fee-simple, at the time of his conveyance to his son James, in 1831.

And it was then held that, as the terms of this conveyance were “ to James Pollock, the heirs of his body, and assigns forever,” he took thereby an estate in fee-tail; and that he, being the first donee in tail, could not, under the laws of this state, by a sale and conveyance in fee-simple, with covenants of warranty, bar the entail, or deprive his issue of the right of succession to the inheritance at his death.

It was further held that, by force of the statute of December 17, 1811, “to restrict the entailment of estates” (S. & C. 550), the plaintiffs, as the issue of the first donee in tail, upon his death, took the inheritance as an absolute estate in fee-simple. With these holdings, on the state of facts then presented to the court, we are entirely satisfied.

But now it is shown by the deed of 1807, offered in evidence by the defendant upon the last trial, that John Pollock, Jr.,, held the premises in controversy, by a deed in all respects similar to that by which he undei’took to convey them to his son James, in 1831; and therefore, at the date of the latter conveyance, he himself held the premises in fee-tail, and not in fee-simple. His title was acquired in 1807, and was subsisting as a tenancy in tail in 1811, when the act “ to restrict the entailment of estates ” was passed. This act provided, among other things, that “ all estates given in tail shall be and remain an absolute estate in fee-simple to the issue of the first donee in tail.” These terms are sufficiently comprehensive to embrace subsisting estates in tail which had been previously given, as well as those which might thereafter be created. Remedial statutes aré to be liberally construed, with a view to suppress the mischief at which they are aimed. And there is no reason to suppose that the legislature intended to tolerate the indefinite continuance of entailments then subsisting, whilst it acknowledged such perpetual impediments to alienation to he against public policy. The power of the legislature thus to convert subsisting estates tail into estates in fee-simple can scarcely be doubted. In fact, in many of the states of this country, every fee-tail is declared by statute to be a fee-simple in the tenant in tail. And this is no prejudicial interference with vested rights. The tenant in tail can have no cause for complaint, for he is simply benefited by the enlargement of his estate into a fee-simple. And his issue has no legal rights in the premises during the tenant’s life. The issue takes, if at all, by descent, as heir of the body, and the maxim is “nemo est hceres viventis.” The course of inheritance is always subject to legislative control. De Mill v. Lockwood, 3 Blatchf. 56; Dart v. Dart, 7 Conn. 250.

But the statute of 1811 did not, in any manner, affect the tenancy in tail then held by John Pollock, Jr. It left him, as the first donee in tail, in the full enjoyment of all the rights, and subject to all the disabilities incident to that species of estates. Among those disabilities was the want of power to bar the entail, or cut off the heirs of his body from their right of succession to the inheritance at his death. Upon his decease, therefore, a right of entry accrued to the issue of his body; and their estate immediately became, by force of the statute, an absolute estate- in fee-simple, notwithstanding the-deed to James Pollock in 1831.

James Pollock then, as one of the issue of the first donee in tail, had a full power of alienation, as against his heirs, which he exercised by a sale and conveyance of the premises, with covenants of general warranty, to Emmanuel Hawn, in December, 1836. This conveyance estopped the grantor during his life, and must estop the plaintiffs, as his heirs, from claiming, as against the grantee or his assigns, the title which they now attempt to set up. This must be so, even if John Pollock, the first donee in tail, was living at the date of its execution.

At what time he died is not shown, either by the testimony, or the agreed statement of facts.

Counsel have discussed, at length, the effect of the rule in Shelley’s case; but we do not perceive any proper application which that rule can have to the facts of this ease. It is a mistake to suppose that the effect of that rule ever was to convert a fee-tail into a fee-simple.

Judgment of the District Court affirmed.

Day, Whitman, Whisht, and Johnson, JJ., concurred.  