All the parties to this action claim through Daniel Paidrick, a common grantor in possession May 29, 1875, of forty acres in Shelby County. He was married and had one child, Lewis C. Paidrick, who was unmarried and without children. In consideration of love and affection, his wife joining, Daniel *Page 521 then conveyed the tract to Lewis by warranty deed containing the following provisions:
"The grantors hereby expressly reserve the right to the use, occupation, rents, issues and profits, of all of said lands for and during the natural life of the grantor, Daniel Padrick. This conveyance is also made and accepted subject to the limitations and conditions that the said grantee Lewis C. Padrick shall hold said lands from and after the death of the grantor Daniel Padrick, for and during the natural life of said Lewis C. Padrick only, and at the termination of such life estate of said Lewis C. and at his death said lands to go to his children then living, and to the descendants of those that may be dead,
"And in case that said Lewis C. Padrick, at his death shall not leave surviving him any child or children, or the descendants of his child or children:
"That all of said lands shall go fully and wholly to his brothers and sisters, then living, and to the descendants of those that may be dead at that time, provided, that the descendants of any brother or sister will only take the share of said lands that their ancestors would receive if living. The term `Brother and Sister' as used in the conveyance, as to the persons who shall take said lands upon the death of said Lewis C. Padrick without issue, is intended to be limited to the brothers and sisters of the full blood, and in no instance or under any circumstances is it intended or shall it be construed to include within its provisions the half brothers and sisters of the said Lewis C. Padrick.
"This deed is made upon the further express conditions that the death of the grantee Lewis C. Padrick, prior to the death of the grantor, Daniel Padrick, shall work and operate as a revocation of this deed and in such case said lands shall revert back to the grantor Daniel Padrick."
March 2, 1878, Lewis conveyed the same real estate to Daniel by warranty deed, the granting clause reading:
"This Indenture Witnesseth, that Lewis C. Padrick (unmarried) of Shelby County in the State of *Page 522 Indiana, Convey and Warrant to Daniel Padrick of Shelby County, in the State of Indiana for the sum of Five Hundred Dollars the following real estate in Shelby County, in the State of Indiana, towit:"
About five years later Daniel conveyed by warranty deed to William Rouse, who took possession. Appellant Abner Rouse, whose wife is the other appellant, claims under William Rouse. From 1883 to November 5, 1932, when this action was commenced, the Rouse family has been in possession under claim of ownership.
After the conveyance by Lewis to his father, Lewis married and had three children. Two of them and the descendants of the third are the appellees. Daniel died May 27, 1887. Lewis died February 19, 1929.
Appellees brought this action to quiet their title to the real estate. Special findings disclose the above facts. The conclusions were in appellee's favor and judgment was entered quieting their title against appellants.
The complaint stated that Daniel was the owner in fee simple. There were breaks in the record title prior to acquisition by Daniel. Appellants assert that appellees could recover only 1. by proving fee simple title in Daniel and therefore failed in their proof. It was not necessary to trace the title back of the common grantor in possession. Howard et al. v.Twibell (1913), 179 Ind. 67, 100 N.E. 372.
The deed from Daniel to Lewis is not controlled by the rule in Shelley's case. "Children" is a word of purchase. Doe on the Demise of Patterson and Another v. Jackman (1854), 5 2. Ind. 283; Andrews v. Spurlin and Others (1871), 35 Ind. 262; Owen et al. v. Cooper (1874), 46 Ind. 525. This was the law when the deed now in question was executed.Gonzales v. Barton (1873), 45 Ind. 295, is not applicable. It *Page 523 decides that "lawful issue" were not words of purchase in the will under consideration. Fletcher v. Fletcher (1882),88 Ind. 418, and King v. Rhea (1877), 56 Ind. 1, relied upon by appellants, are discussed in McIlhinny v. McIlhinny (1894),137 Ind. 411, where the former is overruled and the latter modified to the extent of its inconsistency with the McIlhinny opinion which holds that "issue of her body" in a deed were words of purchase. None of these cases is here in point.
Apparently it is conceded by appellants that if the rule in Shelley's case is inapplicable, the deed to Lewis gave him a life estate with contingent remainder to his children, then unborn, who might be living at the time of his death and to the descendants of those deceased. Inasmuch as appellees were such children and descendants, we need not consider the effect of the provision for his brothers and sisters if Lewis should die without children and since he died after the death of his father the provision for reversion is unimportant.
Appellants say that the deed from Lewis to Daniel purporting to convey a fee simple destroyed the contingent remainder to the unborn children of Lewis. This argument is based upon 3, 4. the old common-law rule that one owning a life estate upon which contingent remainders are based and who tortiously attempts to convey a greater estate than he has forfeits the life estate resulting in destruction of the contingent remainder. Whatever the English common law was at the time of its adoption in Indiana, or whatever it may be now, is and has been of no consequence in Indiana since 1852 when by statute the rule was declared:
"A conveyance made by a tenant for life or years, purporting to grant or convey a greater estate than he possessed or could lawfully convey, shall not work a forfeiture of his estate, but shall pass to *Page 524 the grantee or alienee all the estate which the tenant could lawfully convey." § 56-141, Burns' 1933, § 14699, Baldwin's 1934.
By his deed to his father Lewis conveyed only the life estate which he had and appellants' predecessor by his purchase from Daniel acquired only the life estate of Lewis and that reserved by Daniel. Lewis lived a long time and during that time appellants evidently thought they owned the fee. These facts do not enlarge the estate held by them which ceased with his death. The case of Hull v. Beals (1864), 23 Ind. 25, is no authority to the contrary. The deed there clearly called for an application of the rule in Shelley's case. Whatever else was said wasdictum.
Judgment affirmed.
NOTE. — Reported in 49 N.E.2d 528.