
    *Mary A. Pollock and others v. Elias Speidel.
    1. Where lands are conveyed by deed “ to A, the heirs of his body, and assigns,. forever,” the grantee takes an estate tail.
    2. By force of the statute of this state limiting entailments, the issue of A takes the inheritance as an absolute estate in fee’simple.
    3. The first donee in tail can not, in 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.
    4. Though the issue, in such case, take by descent, yet the tenant in tail is not the source of their title; they take,per formam doni, from the person who-first created the estate, and are therefore not estopped by the deed of the tenant in tail.
    5. Nor is it a bar to their action for the recovery of the lands entailed, that their ancestor, the tenant in tail, has conveyed with covenants of warranty, and that assets have descended to them from his estate. Modern covenants of warranty are regarded as personal only-;' and the remedy of the covenantee, in case of eviction, is by action on the covenant, against the grantor, or his real or personal representatives, to recover in damages for the land-lost.
    
      Error to the court of common pleas of Clermont county. Reserved in the district court.
    The original action was brought in the court of common pleas 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 that 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, Sen. (the common source of title), to James Pollock, the father of plaintiffs, dated March 30,1831, conveying theTands 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:
    
      “First. That James Pollock died in 1855 or 1856, leaving the plaintiffs, his children and legal heirs of his body.
    “ Second. That the property in controversy in this suit is the identical property described in the deed from John Pollock, Sen., to James Pollock, dated March 30, 1831.
    *“ Third. That James Pollock sold, by deed of general warranty, to Emanuel Hawn, the property in controversy on the 1st day of December, 1836. Book of Deeds, M 2, page 442.
    
      “ Fourth. That Emanuel Hawn conveyeed, by general warranty •deed, said premises, on the 28th day of November, 1839, to John N. Gatch. Book T 2, page 27.
    
      “Fifth. That said John N. Gatch conveyed to the defendant the premises, by deed of general warranty, on the 1st day of October, 1841. Book of Deeds V 2, page 155.
    
      “ Sixth. That E. Hawn went into possession of said premises on the day of the execution and delivery of his deed, and that he, Gatch, and Speidel have been in the actual possession thereof since that date.
    
      “Seventh. And that the consideration expressed in the deed from Pollock to Hawn, from Hawn to Gatch, and from Gatch to Speidel were valuable considerations. And that James Pollock died, leaving assets descending to the plaintiffs, his heirs.”
    
      No further evidence was offered by either of the parties.
    The court found for the defendant, and, after overruling the mo* tion of the plaintiffs for a new trial, rendered a judgment in favor of the defendant.
    To reverse this judgment the plaintiffs filed their petition in error in the district court, and the case was reserved in that court for the judgment and decision of this court.
    
      T. M. Lewis and W. A. Townsley, for plaintiffs in error:
    1. James Pollock took a life estate only, without the power to alienate or in any manner to incumber the fee. The fact that tho words “ heirs of his body ” are used in this deed, would lead us to-the conclusion that a fee in James Pollock was not intended. We can not presume that those words were inadvertently written in the deed, and without meaning. The deed itself furnishes abundant evidence to the contrary. The same words appear five different times in as many different places in the same deed. If the parties had intended that a fee simple estate should be granted by the deed to James, they would have used the common printed form to have accomplished the object. Neither an estate in *fee simple nor a conditional fee was vested in James Pollock by the deed in question. 2 Bla. 104, 111; 4 Kent, 5, 6, 16, 444;. 1 Bla. 110, n. 11; Williams v. Berkley, Plowd. 233.
    2. James Pollock’s children, the heirs of his body, took the remainder in fee, and were entitled to the possession of the premises, after the determination of the life estate of their father; and they took as purchasers, and not as heirs.
    3. By this deed, viewed by the light of the common law of England, an estate tail was created, and the same being controlled by the statute of Ohio, James Pollock took a life estate, and his “ issue,” the plaintiffs, “ an absolute estate in fee simple.” 1 Coke, 403; 2 Bla. 113; Shep. Touchstone, chap. 5, p. 102; 4 Cruise on Real Prop. *331; S. & C. Stat. 550; 4 Kent, 16; 1 Washburne on Real Prop. 84; 1 Bla. 113; Williams on Real Prop. 141; King v. Beck, 15 Ohio, 562; Bangshaw v. Spencer, 2 Atk. 580, 582 ; Bayley v. Morris, 4 Ves. 794; Doe v. Collis, 4 Term, 294; Deem v. Puckey, 5 Term, 299.
    4. The rule in Shelley’s case has no application to the case at bar. Turley v. Turley, 11 Ohio St. 182.
    5. The words “ assigns forever,” as used in the deed in question, add nothing to the title of James Pollock, and gave him no right to alienate more than he had — a life estate. Such words have no-conveyancing power whatever. He takes the same quantity of. title without the words that he would with them. Williams on Real Prop. 142.
    6. Nor does the fact that James Pollock conveyed by deed of general warranty militate against the right of the plaintiffs to recover. If the foregoing conclusions be correct, the plaintiffs did not derive their title from him. They took by virtue of the deed from their grandfather, John Pollock, Sen. They took by purchase,, and not by descent. If the plaintiffs had in any manner derived their title through their father, James Pollock, the argument might have some force.
    The land is not bound by the covenants of general warranty. Nor are the plaintiffs bound upon the covenants of their father, further than they may have received assets from his personal estate, if that far. But we will not now moot that question. If bound at all by the warranty of their father, it *would only be to the extent of the value of the assets received from the personal estate of James Pollock. Heirs are only bound upon the warranty of the father, when they take the estate directly from him by descent; but never when they take as purchasers. If the plaintiffs take the land in question by purchase through the deed of their grandfather, as we claim they do, they take it not only .clear of the warranty, but clear of the debts of their father.
    P. JB. Swing and J. S. Griffith, for defendant in error:
    We claim for the defendant that the deed from John Pollock to James Pollock vested in James Pollock the fee simple.
    As to the history of the ancient estate for life, and the use of the meaning of the word “ heir,” see Williams on Real Prop. 48, 60, 61, 63.
    The right of alienation by the ancestor by the time of Henry II. seems to have been established; he was enabled to convey the fee in the land. What is the history and meaning of the word “heirs?” 1. The heir was the nominee in the grant; he took everything from the grantor, nothing from his ancestor. 2. By the term “ heirs,” the issue of the tenant was only meant, collaterals being excluded. 3. The collateral relations were admitted to succeed as heirs.
    The ancestor having the power of alienation whenever the term “ heirs ” was used, he could convey the fee in the land, and therby defeat the expectation of his heirs, either collateral or the heirs of his body.
    We presume it will not be denied, that if a conveyance be made to a man and his heirs, that a fee will pass to the grantee. The issue,' the heirs of the body, are included in the word “ heirs,” and succeed to the inheritance before collaterals. What, then, is the ■effect of confining the inheritance to the issue, the heirs of the body ■of the grantee ? The effect is to exclude the collaterals from the inheritance, but does not affect the interests of the donee or grantee.
    The statute of entailments, passed December 17, 1811, does not reduce the quality of the tenancy in tail: it merely destroys the entailment when the estate reaches the issue of the first tenant in tail. The object was not to fetter the ^estate in the hands of the first tenant in tail, but to unfetter it altogether in the hands of his issue, the heirs of his body. Turley v. Turley, 11 Ohio St. 180.
    But if the deed from John Pollock to James Pollock did create an estate tail, and James Pollock was a tenant in tail, we then claim that the plaintiffs can not recover for the reason that they will be subject to all the incidents of a tenancy in tail, and'among them is this: that an estate tail may be barred or destroyed by a fine, by a common recovery, or by lineal warranty descending with assets to the heir. 1 Bla. 116.
    We presume that a simple conveyance by James Pollock, the tenant in tail, has the same effect as a fine or common recovery, and that the effect was to bar the plaintiffs. The deed from James Pollock to Emanuel Hawn was a deed containing covenants of general warranty, a lineal warranty deed descending with assets to the plaintiffs. It is admitted that James Pollock died leaving assets descending to the plaintiffs. We therefore claim that the deed from James Pollock to Emanuel Hawn effectually barred the plaintiffs. 1 Bla. 302, 303, 113, 116, 117; 4 Cruise on Real Prop. 297, sec. 26; 4 Kent, 469.
    Has the statute de donis been adopted in Ohio ? If it has, the deed from John Pollock to James Pollock created an estate tail. If the statute de donis is not in force in Ohio, then the conveyance from John Pollock to James Pollock was a conditional fee.
    
    We contend that the statute de donis was never in force in this state. Our courts only recognize the common law and the statutes in aid thereof, so far as they are suited to the condition of the people and the genius of our institutions. Helfenstein’s Lessee v. 
      Garrard, 7 Ohio, 275, pt. 1; Carroll v. Olmstead et al., 16 Ohio, 251, 257.
    The statute de donis never having been in force in this state, James Pollock, the grantee, having had issue, could and did bar his’ issue, the plaintiffs, by his conveyance to Emanuel Hawn.
    The words “the heirs of his body,” as used in the deed from John Pollock to James Pollock, are words of limitation, *and not of purchase. 1 Bla. 242; Fearne on Remainders, 76; Williams on Real Prop. 141, 236 ; 4 Kent, 229.
    These authorities bring the case within the rule in Shelley’s case. 4 Kent, 215; 2 Cruise on Real Prop. 370; Fearne on Remainders, 197.
    The rule has been adopted in most of the states as part of the common law. James’ Claim, 1 Dallas, 47; Findlay v. Riddle, 3 Binn. 152; George v. Morgan, 4 Harris, 95; Dott v. Cunningham, 1 Bay, 453; Carr v. Porter, 1 McCord’s Ch. 60; Davidson v. Davidson, 1 Hawks, 163; Roy v. Garnett, 2 Washington, 9; Smith v. Chapman, 1 Hen. & Mumf. 240; Lyles v. Digge, 6 Har. & Johns. 364; Chilton v. Henderson, 9 Gill, 432; Polk v. Faris, 9 Yerger, 209. See also Bond’s Lessee v. Swearington, 1 Ohio, 395; McFeely’s Lessee v. Moore’s Heirs, 5 Ohio, 465; Armstrong v. Zane’s Heirs, 12 Ohio, 287; King’s Heirs v. King’s Adm’r, 12 Ohio, 390.
    Under this rule, the words “heir or heirs,” which are words of limitation, were construed to mean “child or children,” which are words of purchase. King’s Adm’r v. King’s Heirs, 15 Ohio, 559, 564, 565.
    We claim, then:
    
      First. That if this was an estate tail, the plaintiffs were effectually barred by the lineal warranty of their ancestor descending to them with assets.
    
      Second. That the conveyance from John Pollock to James Pollock created a conditional fee at common law; and that the statute de donis was never adopted in this state. So that James Pollock, the ancestor of the plaintiffs, could, and did, by his deed to Emanuel Hawn, effectually bar them.
    
      Third. That the words “heirs of his body,” as used in the deed, from John Pollock to James Pollock, are words of limitation, limiting the estate precisely as it would descend at law, and brings this case clearly within the rule in Shelley’s case, by which the estate for life was enlarged into an inheritance, and James Pollock became-tenant in fee simple.
   Scott, J.

The decision of this case depends on the force and effect of the deed of conveyance of March 30, 1831, executed by John Pollock, senior, and wife, to their son, James *Pollock. If by that conveyance the grantee took an estate in fee simple, or the power, as against “the heirs of his body,” of aliening and conveying the premises in fee simple, then it is clear that the plaintiffs, who claim only under that conveyance, as the special heirs therein named, are divested of all title by a regular and valid conveyance from the grantee thereinn amed, and under which the title in fee simple has passed, through several mesne conveyances, to the present defendant. But if that conveyance gave the grantee only an estate for life, with remainder in fee to his children, or if it gave him an estate in tail, with the fee so limited to particular heirs that the grantee could not, as against them, alien the inheritance, then it is equally clear, that upon the death of the grantee, the plaintiffs, as “ the heirs of his body,” became entitled to the possession of the premises which they are now seeking to recover.

John Pollock, senior, is the common source from whom both parties derive title. The deed from him to his son, James Pollock, under which both parties claim, purports, for a good and valuable consideration, to grant and convey the premises in controversy, “to the said James Pollock, the heirs of his body, and assigns, forever.” The habendum is in similar terms: “to have and to hold,” etc., “to the onxy proper use, benefit, and behoof of the said James Pollock and the heirs of his body, and assigns, forever.” The covenants of warranty are made “with the said James Pollock, the heirs of his body, executors, administrators, and assigns.” This form of expression occurs twice in the covenants, and finally the premises and appurtenances are forever warranted “unto the said James Pollock, the heirs of his body, and assigns.”

The terms of this deed are such as to vest in the grantee an estate of inheritance; the title conveyed is transmissible, by its terms, to the heirs of the grantee’s body, and as there is no limitation prescribed for the duration of the grant, it may endure forever. It is therefore an estate in fee. Had the conveyance been to the grantee, his heirs, and assigns forever, without designating any particular class of heirs, it would have been in the usual form of a conveyance in fee simple, and it must, beyond doubt, have so operated. But *here the terms of the grant expressly limit the inheritance to a particular class of heirs, to wit, “to the heirs of his body,” and thus exclude collateral heirs. These words of limitation we are not at liberty to disregard. They are frequently repeated throughout the deed in connection with the name of the grantee, and we can not assume that they were used undesignedly, or give a construction to the deed which shall disregard them. These are not words of form, but of substance, and seem to have been inserted in the grant, and carefully repeated throughout the deed for a purpose and design. Giving effect then to these words, it would seem very clear that they create an estate tail. This results from the very definition of an estate tail. Bouv. Dic.; 2 Wend. Bl. 110-115; 4 Kent. Com. 12; Prest, on Estates, 355; Cruise, tit. 2, chap. 1, sec. 12.

By force of the words “ heirs of his body ” we think the grantee clearly took an estate in fee tail. And this effect is not modified by the word “ assigns,” which follows; for this word only imports that the estate granted may be transferred, and can not operate to enlarge the grant, or defeat its express limitations.

Without entering into a long discussion of the origin and history of estates tail, it may suffice to say, that after the enactment of the statute de donis, of Westminster 2, 13 Edw. I., chap. 1, it was held by the courts of England, that where the tenant had what, at common law, was regarded as a conditional fee simple,- which would become absolute upon the birth of issue, he now held by force of this statute an estate tail; and that the donor had a reversion or fee simple expectant on the failure of the issue in tail. The tenant in tail could no longer alien, upon his having issue, but the feud was to remain to the issue according to the form of the gift, and to revert to the grantor or his heirs, on failure of issue. Among the incidents of this species of estate were these: that the tenant in tail was not chargeable with waste, and the wife had her dower, and the husband his curtesy in the estate tail. Long afterward, the judges discovered an ingenious method of cutting off or docking the entail, by a common recovery, which is the only mode of conveyance by which a tenant in tail can ^effectually bar the entail in that country. 4 Kent’s Com. 12-14. “Estates tail,” says Kent, “were introduced into this country with the other parts of the English jurisprudence, and they subsisted in full force before -our revolution, subject equally to the power of being barred by a fine, or common recovery.” Yol. 4, p. 14.

In most of the United States, the common law relating to entailments is either entirely abolished, or materially modified. In Massachusetts, where an entail might be barred by a common recovery, or by a conveyance made according to the special provisions of a statute on that subject, it has been held that a common deed effecuted by tenant in tail, not in conformity with the statute, is not sufficient for that purpose; and that the deed of the tenant in tail can not operate by way of estoppel on the heirs, because “ they do not claim the estate as coming from him as its source, but an estate coming through him as special heir, which he can not intercept, except in the modes provided by law.” Perry v. Kline, 12 Cushing, 118. In several states entailments are expressly prohibited; and, in others, estates tail are converted by statute into estates in fee simple, in the hands of the first donee in tail. 1 Scribner on Dower, 268-270 ; 4 Kent, 15, notes.

In Ohio, estates tail seem always to have been recognized, and to a certain extent tolerated. But the method of barring the entail, by a common recovery, is unknown in this state. By the act of December 17, 1811, “to restrict the entailment of estates,” (S. & C. Stat. 550) it was enacted: “ That no estate in fee simple, fee tail, or any lesser estate in lands or tenements, lying within this state, shall be given or granted by deed or will to any person or persons but such as are in being, or to the immediate issue or descendants of such as are in being, at the time of making such deed or will; and 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.” This statute recognizes the first donee in tail as holding an estate for life only, as tenant in tail; and does not convert the estate into a fee simple, till it reaches the hands of his issue. We have also the act of April 4, 1859, “to provide for the sale or lease of estates tail in certain cases.” S. & C. 550. This act gives *to the courts of common pleas of the state, jurisdiction, on application of the first donee in tail, or for life, to authorize the sale of entailed estates, and estates for life with remainder over to any other person or persons, when satisfied that the sale would be for the benefit of the applicant, and do no substantial injury to the heirs in tail, or others in succession, reversion or remainder. But it carefully protects the rights of the issue in tail, by giving to the proceeds of sale the same character for purposes of descent, etc., as the estate sold; and directs-that the moneys arising from sales shall pass according to the terms of the deed, will, or other instrument creating the estate. Various provisions in this act evince the sedulous care with which the rights of those who are entitled to the inheritance, after the first, donee in tail or for life, have been guarded; and the whole act evidently proceeds on the idea that, without such legislation, the first donee in tail could not sell and convey the estate in fee simple.

Our attention has been called by counsel, to the case of Carroll v. Lessee of Olmstead, 16 Ohio, 251. We do not understand the decision in that case to rest on the ground, either that we have no estates tail in Ohio, or that the entail maybe barred by an ordinary conveyance in fee simple, executed by the first donee. The question in the case was upon the constitutionality of a special act of the legislature, authorizing a sale by trustees of certain lands held in tail by devisees under the will of Aaron Olmstead. The court, held that, under the circumstances recited in the preamble of the-act, it was competent for the legislature to authorize a sale and conveyance of the premises in fee simple, and that the purchasers took a good title as against the devisees or any person claiming under them. That act, as is shown by its preamble, was supposed to be-necessary to prevent the property entailed from being totally lost, as well to the devisees as to their issue in tail; it secured the proceeds of the sales to the issue o'f the devisees after their death; and the whole enactment was made on the ground that, without such authority, the devisees could not sell and convey the premises, by reason of the entailment. 11 Ohio L. 22.

We agree with counsel for the defendant, that the words, “ heirs *o/ his body,” used in the conveyance to James Pollock, are words of limitation, not of purchase; and that his issue take, not as purchasers, but by descent; but this is to be understood as meaning that the issue takes the estate 11 as an estate of inheritance and as being of the prescribed line of issue or inheritance, and not by direct descent from his immediate ancestor; since he takes, per formant doni, from the person who first created the estate.” Washburn on Real Prop. 79, n. 1; 1 Cruise Dig. 83.

Though the defendant here claims under a conveyance from James Pollock, the tenant in tail, with covenants of warranty, yet the plaintiffs are not thereby estopped or barred of their action,_ because their title does not come from the warrantor as its source Perry v. Kline, supra. Nor does it alter the case that they have received assets from the estate of the warranting ancestor. Modern covenants of warranty are regarded as personal only, and the remedy, on eviction, is by an action on the covenant against the grantor, or his real or personal representatives, to recover in damages for the land lost. 4 Kent, 470, 471.

We are of the opinion, that on the case made by the deed offered in evidence by the plaintiffs, and the agreed statement of facts, the plaintiffs were ■ entitled to judgment, and that the court of common pleas erred in holding otherwise, and in overruling th© motion for a new trial. The judgment of that court is therefor© reversed, and the cause remanded for further proceedings.

Day, C. L, and White, Welch, and Brinkerhoee, JJ., concurred.  