[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 485
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 486 IN BANC.
This is a suit by plaintiffs S.A. Lytle, A.D. Lytle, W.H. Lytle, Charles A. Lytle, Ed. A. Lytle, Pearl Lytle, Ted Lytle and Ruby Thomas, against defendants Sarah L. Hulen, Travelers Insurance Company, a corporation, and Commerce Mortgage Securities Company, a corporation, to reform certain deeds executed by Mary A. Ramp during her lifetime to Sarah L. Hulen, one of the defendants herein, and the heirs of her body. The plaintiffs appeal from a decree adverse to them.
The first deed in question, that of the McKinney farm, was executed on October 14, 1903. A copy thereof is attached to the plaintiffs' complaint and the original deed is in evidence as Plaintiffs' Exhibit 1. The grantee therein named is "Sarah L. Hulen and the heirs of her body, only." After the description, the deed contains this clause: "This conveyance is intended to cover and convey to the grantee herein named, and the heirs of her body only, forever, all that certain farm * *" etc. Thehabendum clause reads thus: "To have and to hold the said premises with their appurtenances unto the said Sarah L. Hulen, and the heirs of her body only, forever."
The covenant of warranty therein provides, that "the said Mary A. Ramp does hereby covenant to and with Sarah L. Hulen, and the heirs of her body only, forever that she is the owner in fee simple of said premises; that they are free from all encumbrances and that she will warrant and defend the same from all lawful claims whatsoever. *Page 487
The deed of the Schmitke farm which is in question, is Plaintiffs' Exhibit 3. It was executed on May 4, 1905. A copy of this deed is also attached to the complaint. The grantee in said deed is referred to as follows: "Sarah L. Hulen, during her natural life and after her death to the heirs of her body, only."
The habendum clause reads thus: "To have and to hold the said premises, with their appurtenances unto the said Sarah L. Hulen durng her lifetime, and after her death to the heirs of her body, only."
The warranty clause reads thus: "And the said grantor does hereby covenant to and with the said grantees that she is the owner in fee simple of said premises; that they are free from all incumbrances and that she will warrant and defend the same from all lawful claims whatsoever." Both of the said deeds were duly delivered and recorded.
On March 29, 1904, Mary A. Ramp executed a deed which is in the record, wherein the grantee is thus described: "Sarah L. Hulen and the heirs of her body, only after her death." After the description the deed contains this provision: "This conveyance is intended as a deed of explanation and correction of that certain deed made by this grantor to the grantee therein named bearing date of October 14, 1903 and recorded at page 177, of Volume 84 of Records of Deeds of Marion County, Oregon on the ninth day of November, 1903, in this particular to wit: that the lands conveyed by said former deed and by this deed, are intended to be and hereby are conveyed to the grantee therein named for and during her natural life, and after her death to the heirs of her body only." This deed is exhibit 2 and described the same *Page 488 property described in the deed of Mary A. Ramp, dated October 14, 1903, which is exhibit 1.
The habendum clause reads thus: "To have and to hold the certain premises, with their appurtenances unto the said Sarah L. Hulen and the heirs of her body, only, after her death, forever."
The covenant of warranty reads as follows: "And the said Mary A. Ramp does hereby covenant to and with the said Sarah L. Hulen, and the heirs of her body only, after her death, that she is the owner in fee simple of said premises; that they are free from all incumbrances and that she will warrant and defend the same for all lawful claims whatsoever."
Mrs. Mary A. Ramp died on or about January 15, 1916; Sarah L. Hulen is still alive. It is alleged in the complaint:
"That at all times herein mentioned, plaintiffs herein were and now are, the sole and only body relatives next of kin, and heirs apparent, of the body of the said Sarah L. Hulen, defendant herein."
On February 29, 1925, Sarah L. Hulen and her husband executed a mortgage to the Travelers Insurance Company, a corporation, to secure the payment of the sum of $9,000 with interest and attorney's fees, which was evidenced by a promissory note of the same date, payable to defendant, Travelers Insurance Company. On November 1st, 1934, said mortgage conveying the real estate described in the certain two deeds from Mary A. Ramp, dated respectively on October 14, 1903, and May 4, 1905.
On February 29, 1925, the defendant Sarah L. Hulen and her husband made, also executed and delivered to the defendant Commerce Mortgage Security *Page 489 Company a second mortgage for the sum of $600 covering said real property.
Prior to the execution of these two mortgages Mrs. Hulen had executed five different mortgages upon the real property in question in favor of different parties, the date commencing August 7, 1905, and the amounts ranging from $700 to $4,000. On May 4, 1905, Sarah L. Hulen and her husband executed a mortgage upon the Schmitke farm in favor of Mary A. Ramp in the sum of $2,900. Mrs. Ramp never required Mrs. Hulen to pay this mortgage and it was canceled without payment.
This suit was brought for the purpose of reforming all three deeds. It is the contention of the plaintiffs that it was the intention of all parties concerned, by said deeds referred to above, to convey to Sarah L. Hulen a life estate only in said premises with remainder over to these plaintiffs as the heirs of the body of said Sarah L. Hulen; that this was understood by all the parties concerned, and that no question was ever raised regarding it until a short time prior to the commencement of this suit, when it was discovered by plaintiffs that defendant Hulen had mortgaged said premises to the mortgage companies referred to herein, and was contemplating selling the property.
Plaintiffs allege the intent substantially as follows: That at the time of the execution of said deeds it was the intention of the said grantor therein, Mary A. Ramp, to convey to the said Sarah L. Hulen, a life estate, only, in said real property and the remainder over, after the death of said Sarah L. Hulen, to these plaintiffs as the heirs of the body of the said Sarah L. Hulen; and that the word "heirs" as used in said *Page 490 deed was used as a word of purchase and not of limitation, and the term "heirs of the body" was used as a phrase to determine and designate who should take the remainder after the death of the said Sarah L. Hulen; and that said intentions were understood by plaintiffs herein, as well as defendant Sarah L. Hulen; and that at the time of the execution of said deed it was believed by said defendant Sarah L. Hulen, as well as plaintiffs as well as the said Mary A. Ramp, that the language used in said deed created no more than a life estate in the said defendant Sarah L. Hulen, and a remainder over, after the death of the said Sarah L. Hulen, to these plaintiffs as the bodily heirs of said defendant.
That Mary A. Ramp executed the deed on the twenty-ninth day of March, 1904, above mentioned, believing that there was an error in the first deed mentioned and for the purpose of correcting said error and making said deed comply with the actual intentions of all of the parties at the time of the execution thereof and attempting to correct the same; that it was the intention of the grantor therein as well as the defendant Sarah L. Hulen, to use the language which would carry out the intent and purpose of the grantor in the execution of the deeds; that it was the intention of Mary A. Ramp in the use of the word "heirs" to use the same as a word of purchase rather than as a limitation; and in said deeds it was the intention of the grantor to use the phrase "heirs of the body" to designate who should take such property after the death of Sarah L. Hulen and to create in said defendant Sarah L. Hulen not more than a life estate in and to said premises with remainder over to the heirs of her body; and it was *Page 491 believed by all of the parties interested, at that time, that the language used in said deeds created no more than a life estate in Sarah L. Hulen, with remainder over to these plaintiffs after the death of the defendant Sarah L. Hulen as the heirs of the body of said defendant; that such intention and understanding was indulged in until very recently.
It was further alleged in the complaint "that the mistakes in the language employed in said deeds were mutual mistakes indulged in by the grantor therein named, as well as the grantee, as well as these plaintiffs."
Plaintiffs allege that said defendants at the time of the execution and delivery of said mortgages, had full knowledge and notice of the true conditions surrounding said deeds. The intentions of the parties connected therewith and of the estates of which it was intended, should be created thereby. And that the mortgage companies took said mortgages with full knowledge of all the matters and things alleged in plaintiffs' complaint.
Plaintiffs prayed that said deeds be reformed "by inserting therein after the grantee's name in both the granting andaddendum clause, in said deeds, the words `no more than a life estate, with remainder, over after her death to the heirs of her body.'"
Defendants, by their separate answers deny the allegations of the complaint as to any mistake in the deeds or in regard to the alleged intent to convey any estate less than fee simple.
Defendant Hulen avers that the only claims she has made in regard to the deeds, has been that they conveyed to her a fee-simple estate in the real property described therein; that with reference to the instrument *Page 492 dated March 29, 1904, mentioned in the record as the "correction deed," Plaintiffs' Exhibit 2, it is not a deed and was not delivered to her by Mary A. Ramp, or accepted by her, and alleges that she has always claimed that Mary A. Ramp had no right to nor title, nor interest in the lands described in said instrument at any time subsequent to October 14, 1903.
Mrs. Hulen alleges that members of the legal profession, with whom she has conferred, contend that the language described in the deed of October 14, 1903, and said instrument of March 29, 1904, and also the deed of May 4, 1905, convey to her the fee-simple title and estate in and to said real property; that Mary A. Ramp put this defendant into possession of all of said lands upon the delivery of said deeds.
Further answering, Mrs. Hulen alleges that long prior to the death of Mary A. Ramp, which occurred on or about the fifteenth day of January, 1916, said Mary A. Ramp was informed by her attorneys and legal advisors that said deeds of conveyance by their terms purported to and did, in fact convey a fee-simple title to this defendant, Sarah L. Hulen. And that Mary A. Ramp, with full knowledge of that fact, and recognizing that she had conveyed the property described in said deeds, ratified and confirmed the said conveyance of a fee-simple estate to this defendant by specifically providing in her last will and testament, executed on or about the twenty-second day of September, 1915, and which was duly admitted to probate after her death, among other things, as follows:
"To my daughter Sarah L. Hulen I have heretofore given about $3,000.00 in cash as an advancement, and have conveyed 305 acres of land in Marion County, Oregon, known as the `McKinney Farm' and also about 154 acres of land known as the `Schmitke *Page 493 Farm,' which said two tracts of land I consider as the proportionate share of my estate due to my heir, and I direct that my said daughter shall receive no other or further property or share of nor interest in or to any part of my estate, except that all notes which may be held by me against my said daughter at the time of my death shall be cancelled by any executor and the sums of money represented thereby shall be considered as advancements to my said daughter."
Mrs. Hulen further alleges that these plaintiffs without just cause or excuse have waited until Attorney Judge Bonham, who drafted said deeds, and who knew the facts and circumstances in connection therewith, and who advised her of the legal effect of said instruments, and Mary A. Ramp, are both dead; and many material facts and circumstances affecting the transfers have become dim by lapse of time. That plaintiffs' claims are stale, and each of them have been guilty of laches.
Defendant Sarah L. Hulen by her cross-complaints to the two causes of suit, in regard to the two separate deeds, seeks to be adjudged and decreed to be the owner in fee simple of the lands described in said deeds.
The mortgage companies separately answered the complaint, showing in substance that Sarah L. Hulen applied for the loans and in the customary way prepared for the examination of these defendants an abstract of title by a reliable abstract company showing the record title of said property, as disclosed by the records of Marion County; that the abstract contained a copy of said instrument of date March 29, 1904 (Plaintiffs' Exhibit 2); that Sarah L. Hulen submitted an affidavit showing that said instrument of March 24, 1904, had never been delivered to her or accepted by her, and as disclosed by the abstract of records of *Page 494 Marion County, Sarah L. Hulen owned the property mentioned in the deeds in fee simple, and there was nothing of record to disclose that any of the plaintiffs had any right, title, interest or estate therein and that these defendants had no information nor any knowledge of any facts which would put them upon inquiry as to any of the claims now being made by the plaintiffs; and these defendants, relying upon the said record, and the facts as shown thereby, loaned her the sums of money mentioned for which the mortgages described were executed by Sarah L. Hulen and her husband. And that the amounts thereof have not been paid.
That said mortgage of the Travelers' Insurance Company constituted a first and prior lien against the premises therein described and is superior in equity and right to the claims of all persons whomsoever. That the mortgage in favor of Commerce Mortgage Security Company constitutes a valid second lien against said premises and is superior in equity and right to any claim of plaintiffs.
That the Travelers' Insurance Company and the Commerce Mortgage Security Company are bona fide purchasers for value of said real property, without notice of any of the pretended claims of plaintiffs and pray that said mortgages be declared valid liens upon said real estate. AFFIRMED. The first question to determine pertains to the reformation of the deeds. It is disclosed by the record that Mary A. Ramp, the mother of defendant, Sarah L. Hulen, out of love and affection for her daughter, made, executed and delivered to the daughter Sarah L. Hulen, two deeds of gift of two farms, one known as the "McKinney Farm" and the other the "Schmitke Farm." Mrs. Hulen did not pay her mother a dollar for said deeds. Mrs. Hulen described the delivery of the deed of the McKinney Farm dated October 14, 1903, as follows: When she and her husband were living on a farm in Polk County, her mother Mrs. Ramp wanted her to go on to the McKinney Farm, Mrs. Hulen was fearful that it would cause hard feelings on the part of her sister. Mrs. Ramp said, "It is mine and I am going to give it as I please." When she had finished her meal, she said to Mr. Hulen, "Hand me my satchel." Mrs. Ramp handed the deed to Mrs. Hulen and said: "Here is your farm." Mrs. Hulen said, "I was not expecting it." Mrs. Hulen had the deed recorded, paid the recording fees, and had it returned to her and she put the deed away. Mrs. Hulen had no agreement with her mother, or anyone, with reference to the kind of language that should be inserted in the deed. She has been in possession of the land ever since, claiming it as her own.
Mr. Hulen testified, to the effect, that when Mrs. Ramp made them a visit she took the deed from her grip sack and said to my wife, "Here, Deemie, is your farm," and gave her this deed, and all the old deeds from the government; "we have all the old deeds from one party to another clear on up"; that Mrs. *Page 496 Ramp stated she gave it to her daughter "as her own."
Mr. Carey F. Martin, an attorney of Salem, testified as a witness for plaintiff that all of the deeds were executed before him. With reference to the execution of the deed of the McKinney farm, Mr. Martin states as follows:
"It was her idea to convey a farm; as I remember it they called the McKinney place; I do not remember the number of acres, something like three hundred, it was quite a large farm somewhere up above Turner, to her daughter, and it was her desire to fix up the title so that the daughter would have the use of it, and be unable to sell it or encumber it, and that matter was talked over there in the office, and I think Judge BONHAM dictated the wording in the deed to carry out that, and I think I wrote it out either in long hand or typewriting. (Witness looks at document.)"
That Mrs. Ramp had several deeds made in March, 1904, at the same time this correction deed was made, and "I remember her talking it over that she wanted her deeds made to the parties and `to the heirs of her body only,' that is to their children. She wanted to tie her property up so they would not run through with it; that is what she stated many times."
In regard to the deed of the Schmitke farm (Plaintiffs' Exhibit 3) Mr. Martin testified in part as follows:
"Q. Did you have any conversation with her with reference to what estate she wanted to give her daughter, Mrs. Hulen, in the Schmitke farm? A. That matter was talked over several times in the office, I think.
"Q. Judge BONHAM was still alive at that time? A. I am not sure about that whether he was still alive or not, but it was her expressed wishes that the *Page 497 deeds to her daughter Deemie, as she called her, should be made so that Deemie should have a life estate in the property and be unable to sell or convey the property; she told me that a great many times in her talks.
"Q. Was that the intention you attempted to carry out in drafting this deed to the Schmitke place? A. That is my recollection of it now."
That Mrs. Ramp was a woman of wonderful ability and mind of her own, and was boss, not only of her household, but of her attorneys; she wanted the deeds fixed a certain way. He stated that he talked with Mrs. Ramp many times since the death of Judge BONHAM.
"Q. What was it she inferred with reference to the kind of title she conveyed to Mrs. Hulen? A. Some time after the death of Judge BONHAM in checking up some of her properties and deeds; we talked this matter over, and I told grandma that the courts were holding that deeds drawn to the heirs of the grantor's body were held to be fee simple deeds in some instances, and these deeds she had made to Deemie, as she called her, might be constructed to be ordinary fee simple deeds in place of being deeds tied up during her life and to her heirs like grandma wanted it; and, grandma said that was all right that as long as Deemie did not know about it Deemie would not sell the land or mortgage it, and as long as Deemie thought they were tied up, it was just as good as if it was really tied up, and she cautioned me not to tell Deemie about it, and I did not tell Deemie because Deemie did not come to our office for a long while after."
It is in evidence that Mrs. Hulen, in passing by the Schmitke farm with her mother, remarked what a beautiful home that would be. Mrs. Ramp inquired: "Do you like that place better than where you are *Page 498 living," and Mrs. Hulen replied, "Yes, it is a little higher." Then Mrs. Ramp said, "Look it over and if you like it buy it."
They purchased the Schmitke farm. It was conveyed to Mrs. Ramp and Mrs. Ramp executed the deed to Sarah L. Hulen. At the same time Sarah L. Hulen and her husband executed a mortgage on the farm to Schmitke in the sum of $5,000, as a part of the consideration for the farm; that at that time, or soon after, Mrs. Ramp paid this mortgage as she did not like to pay interest; that Mrs. Ramp paid all the money to Schmitke.
The Hulens have been occupying these farms and working them for twenty-two years. Mrs. Hulen claimed to own them. It would seem that Mrs. Ramp well understood that she had conveyed a good title to the Schmitke farm to Mrs. Hulen, if Mrs. Hulen and her husband could execute a mortgage thereon in favor of Schmitke. It also appears that Mrs. Hulen and her husband executed a mortgage upon the premises to Mrs. Ramp for $2,900.
When Mrs. Ramp was informed by her attorney that her deed to her daughter probably conveyed a fee-simple title to the real estate, she appeared to have been satisfied to let it remain so, if her daughter did not know it, or mortgage or sell the land, and Mrs. Ramp was willing to let the title to the land remain that way, and take a chance on her daughter not encumbering it.
Mrs. Ramp lived until 1916 and made no attempt to reform the deeds. Plaintiffs, after more than twenty years since the recording of these instruments, are in no position to reform them upon the ground that they do not conform to the mutual intention of Mrs. Ramp, her daughter and plaintiffs. *Page 499
They seek to add to the instruments certain language now suggested which was not mentioned by either the grantor or grantee at the time of their execution. They also seek, after that long lapse of time after its recording, to correct a purported corrective deed upon the ground that even the corrective deed does not truly indicate what was in the mind of Mary A. Ramp at the time it was filed.
There was no agreement between Mary A. Ramp and the grantee or the plaintiffs, as to the language to be used in the deeds, or the kind of estate intended to be conveyed thereby. The language of the deeds was in conformity with the directions of Mary A. Ramp. There is no evidence of a mutual mistake. No fraud in the matter is suggested: Evarts v. Steger, 5 Or. 147; Mitchell v. Holman, 30 Or. 280 (47 P. 616); Rosenberg v. GeneralAccident F. L. Assur. Corp., 98 Or. 118 (193 P. 441).
The instruments were drafted by Mary A. Ramp through her attorneys and it is not shown that they were not exactly as she intended them to be. If the deeds were as she intended they should be and, she was simply mistaken as to their legal effect, it is a mistake of law, which should not be reformed after the title has stood for more than twenty years, under the circumstances of this case. But where the instruments do not express the agreement of the parties, if there be one, it is immaterial whether the mistake be one of fact or law: Smith v.Cram, 113 Or. 313, 323 (230 P. 812); Richmond v. OgdenS.R. Co., 44 Or. 48, 55 (74 P. 333); Kraemer v. Alvord,97 Or. 227, 231 (189 P. 990).
This suit for reformation is an appeal to an extraordinary power of a court of equity. We must *Page 500 scrutinize the clause sought to be inserted in the instruments, and consider its equitable or inequitable features: Dolph v.Lennon, 109 Or. 336, 355 (220 P. 161).
Whatever Mrs. Ramp's intentions were when she executed the deeds, her statements when she was informed of their legal import, to the effect, that they were all right, and allowing them to remain of record for so long a time without seeking the aid of a court of equity to reform them, and the fact that she executed her will in 1915 with the clause above quoted, without suggesting that she had conveyed to her daughter only a life estate in the lands, indicates that she was satisfied with the deeds as they were and that she ratified and confirmed the conveyance.
This suit was commenced November 18, 1926, more than twenty years after the execution and recording of the instruments, in excess of the period provided for the recovery of real property, and more than ten years after the death of Mary A. Ramp, the grantor. The plaintiffs do not show sufficient facts excusing laches. The plaintiffs had constructive notice of the contents of the deeds when the instruments were recorded. A duly recorded deed conclusively gives notice of its contents and legal effect: 2 Devlin on Deeds, p. 1305, § 710; Tualatin Academy v. Keene,59 Or. 496, 519 (117 P. 424); Baillie v. Columbia GoldMining Co., 86 Or. 1 (166 P. 965, 167 P. 1167); Crowe v.Crowe, 70 Or. 534, 555 (139 P. 854).
There is considerable testimony in the record tending to show the declarations and statements of Mary A. Ramp, made after she executed the deeds and not in the presence of Mrs. Hulen the grantee, plaintiffs claiming that such statements indicated *Page 501 what her intentions were when she executed the conveyances. In regard to this testimony we quote the syllabus to the case ofAdair v. Adair, 38 Ga. 46, which reads thus:
"In a proceeding to reform a deed, on the grounds of fraud and mistake, the declarations of the grantor, made subsequent to the execution of the deed, and in the absence of the grantee, are not admissible to prove a mistake in the deed, which may be corrected in Equity."
This is undoubtedly the rule. Therefore such evidence need not be considered. Plaintiffs cite Adair v. McDonald, 42 Ga. 506, upon the question of the reformation of a voluntary defective conveyance. The latter case is cited and quoted from in the opinion in Clark v. Hindman, 46 Or. 67, 69 (79 P. 56, 57). We find there the following language:
"A court of equity will not interfere against a grantor, in favor of a volunteer, to correct a mistake or to reform a defective conveyance. The reason for this rule is stated by the court in Adair v. McDonald, 42 Ga. 506, as follows: `If there is a mistake or a defect, it is a mere failure in a bounty, which, as the grantor was not bound to perfect.'" Adkinson v.Blomquist, ante, p. 211 (274 P. 312).
We have considered the question in the present case as though a voluntary conveyance might be reformed, in a proper case, as between those claiming under the same deed when the grantor has no interest in the controversy: 34 Cyc. 929. The rule is stated in 2 Story's Equity Jurisprudence (14 ed.), Section 982, thus:
"The right to correct and reform a written instrument executed by mistake, or fraud, is one that attaches *Page 502 primarily to conveyances to which the injured party stands as abona fide purchaser for value, and does not apply, as a general rule, where the conveyance is the evidence of the bounty of the grantor and a mere gratuity as to the grantee. * * The grantor, if living, could not be compelled to correct the deed; and in the absence of consent of all of the parties, equity will not grant the relief."
See, also, 5 Pomeroy's Equity Juris. (2 ed.), § 2100; Langley v. Kesler, 57 Or. 281, 285 (110 P. 401, 111 P. 246).
It is the general prevailing rule that the doctrine of reformation will not be enforced, where to do so the rights ofbona fide purchasers will be affected although there are a few authorities to the contrary: 2 Story's Eq. Juris., § 983.
The defendants mortgage companies were put on notice of the contents of the deeds recorded and of the interests legal and equitable created by such instruments. These defendants had no knowledge nor were they put on inquiry to ascertain the present contentions of the plaintiffs as to mutual mistakes. The defendant mortgagees are bona fide purchasers for value, and it is elementary that reformation cannot be had as against suchbona fide purchasers: 34 Cyc. 955, 958; 23 R.C.L., p. 339, § 33; 44 A.L.R. 79, annotations; Hallberg v. Harriet, 93 Or. 678,683 (184 P. 549). We therefore conclude that the plaintiffs are not entitled to have the instruments reformed as prayed for.
Plaintiffs submit that the deeds in question, without any extrinsic evidence, should be construed so that the use of the term, "heirs of the body," referred to children and were intended as words of purchase and *Page 503 not as words of limitation, and that Mrs. Hulen took a life estate only.
Defendants contend that the deeds in question convey a conditional fee to Sarah L. Hulen, and that as she had heirs of her body then living, the condition was performed so that the conditional fee became absolute.
In Pierson v. Lane, 60 Iowa, 60 (14 N.W. 90), cited and discussed in Sagers v. Sagers, 158 Iowa, 729 (138 N.W. 911, 43 L.R.A. (N.S.) 562, 563), the conveyance was to Minerva Pierson and "the heirs of her body begotten by her present husband * * To have and to hold the above granted and bargained premises * * unto the said Minerva Pierson and the heirs of her body begotten by said husband." And it was there held that the grant created a conditional fee under the common law. Under the common law, before the enactment of the statute de donis (13 Edw. Ch. 1, Chap. 1), it was held that such a conveyance created a conditional fee, because, if the grantee died without having the specified heirs, the land reverted to the grantor. As soon, however, as the specified heirs were born, the estate became absolute, and the grantee could eliminate it. This rule was adopted by the court inPierson v. Lane and it was held that, as Minerva Pierson had the requisite heirs, she took an absolute fee, and could alienate the land. In Kepler v. Larson, 131 Iowa, 438 (108 N.W. 1033, 7 L.R.A. (N.S.) 1109), we distinctly said that conditional fees, as they existed before the enactment of the statute de donis, prevailed in this state.
Blackstone's definition of a conditional fee is as follows: *Page 504
"A conditional fee, at the common law, was a fee restrained to some particular heirs, exclusive of others * * as to the heirs of a man's body, by which only his lineal descendants were admitted, in exclusion of collateral heirs, or to the heirs male of his body, in exclusion both of collaterals, and lineal females also." 2 Blackstone Com., p. 110.
In 4 Kent's Commentaries a conditional fee is thus defined (* 11):
"A conditional fee is one which restrains the fee to some particular heirs, exclusive of others, as to the heirs of a man's body, or to the heirs male of his body. This was at the common law construed to be a fee simple, on condition that the grantee had the heirs prescribed. If the grantee died without such issue, the lands reverted to the grantor. But if he had the specified issue, the condition was supposed to be performed, and the estate became absolute, so far as to enable the grantee to alien the land, and bar not only his own issue, but the possibility of a reverter."
A conditional fee is one which restrains the fee to some particular heirs, exclusive of others, as to the heirs of a man's body, or to the heirs male of his body. Such estate is held to be a fee simple on condition that in default of such issue it should revert to the donor. In a fee conditional the entire estate is in the donee, the donor having a mere possibility of reverter which he may release to the donee and thereby convert the estate into a fee simple absolute. The issue is not regarded as having any interest whatever.
As soon as any issue is born the estate is supposed to become absolute by the performance of the condition, "at least for three purposes: (1) To enable the tenant to alien the land and thereby to bar, not only his own issue, but also the donor of his interest *Page 505 in the reversion; * * (3) to empower him to charge the land with rents, commons, and certain other incumbrances, so as to bind his issue": 21 C.J. 924, 925, § 19; Moody v. Walker, 3 Ark. 147;Shope v. Unknown Claimants, 174 Iowa, 662 (156 N.W. 850);Wright v. Herron, 2 S.C. (5 Rich. Eq.) 441; Adams v.Chaplin, 10 S.C. (1 Hill Eq.) 265; 4 Kent. Com., p. 11; 2 Blackstone's Com. 110; Croxall v. Shered, 5 Wall. (U.S.) 268 (18 L. Ed. 572); Coogan v. Jones, 278 Ill. 279 (115 N.E. 877);Frazer v. Peoria County, 74 Ill. 282; Kirk v. Ferguson, 6 Coldw. (Tenn.) 479.
The presumption that the word "heirs" was used in its technical sense, is much harder to overcome in the case of deeds than of wills, for the reason that, while conveyances are usually made with the aid of counsel, wills frequently are not: Kepler v. Larson, 131 Iowa, 438 (108 N.W. 1033, 7 L.R.A. (N.S.) 1109), note, at page 1110. In that case it was held that a grant to one of a life estate, habendum to him during his natural life and to the heirs of his body, and their assigns in fee simple, conveys to him a fee under the rule in Shelley's Case, notwithstanding, the deed also provides that the wife of the life tenant shall have merely the privilege of living on the premises during his life, and neither the life tenant nor his wife shall have any power to convey, or place encumbrances on, the property.
That if a grant of a life estate to one habendum to him for life and the heirs of his body and his assigns in fee simple, should not be regarded as vesting a fee in the first taker, under the rule in Shelley's Case it conveys a conditional fee which in states where the statute de donis is not in force, may, after the birth *Page 506 of a child to the life tenant, be conveyed by him in fee simple.
It was held that the rule in Shelley's Case was in force in that state, and the legislature had not seen fit to abrogate it; that the statute de donis being contrary to the spirt of its institutions had never been in force in Iowa.
Under our statute, Section 9847, Or. L., the term "heirs," or other words of inheritance, shall not be necessary to create or convey an estate in fee simple; and any conveyance of any real estate passes all the estates of the grantor, unless the intent to pass a less estate shall appear by express terms of the grant:Ruhnke v. Aubert, 58 Or. 11 (113 P. 38); Irvine v.Irvine, 69 Or. 189 (136 P. 18); Love v. Walker, 59 Or. 95,105 (115 P. 296); Tone v. Tillamook City, 58 Or. 385 (114 P. 938).
Our statute relating to conveyances impliedly repeals statute de donis conditionalibus: Rowland v. Warren, 10 Or. 129. In that case there was a devise to Mary E. Hembree of certain lands with the provision at the end of the will "I further will that if my daughters Martha Ann and Mary E. Hembree die without children the land shall revert back to my other heirs." See Bilyeu v. Crouch, 96 Or. 66, 70 (189 P. 222,223), where the Rowland case is interpreted by Justice BURNETT:
"In this state the question has been foreclosed by the early decision of Rowland v. Warren, 10 Or. 129. There the testator bequeathed certain realty to his youngest daughter Mary E. Hembree, `to her and her body heirs forever,' and by a later clause in the will declared:
`I further will that if my daughters Martha Ann and Mary E. Hembree die without children, the land *Page 507 shall revert back to my other heirs.'" Imbrie v. Hartrampf,100 Or. 589 (198 P. 521); Love v. Walker, 59 Or. 95 (115 P. 296).
In the Rowland case we also find the following at page 130 et seq. of 10 Or.:
"The question is, what estate did Mary E. Hembree take in the land? The first clause of the devise to Mary E. Hembree would give her a fee simple conditional at common law, and a fee tail under the statute de donis. The statute de donis converted the fee simple conditional into a fee tail by taking away the tenant's power of alienation. (4 Kent's Com., 11, 4; Sharwood's Blackstone, 110, n. 11.)
"Now if the tenant is given full power of alienation, the effect must be impliedly to repeal the statute de donis. (Jewell v. Warner, 35 N.H. 176.) Our statute concerning conveyances (Gen. Laws, t. 1, ch. 6, p. 514) seems, evidently, to confer this power, and to substitute a deed, signed and witnessed, for all common law conveyances whatsoever, including a common recovery. So our statutes in relation to the sale of land under execution for the payment of debts, and by executors and administrators for the payment of claims and charges against the estate, and the power to devise by will, seem clearly to design, and impliedly to enact, that all estates of inheritance are subject to a general power of alienation.
"A conveyance to A., and the heirs of his body, created a fee simple conditional at common law, which became a fee tail by the statute.
"The repeal of the statute de donis, simply, would restore the old fee simple conditional. Whether the power to create such an estate has, also, been taken away by our statute, of descents, or otherwise, it is not necessary in this case to determine. The devise in the first clause of the will, therefore, gave Mary E. Hembree either a fee simple absolute or a fee simple conditional. * *
"In Ray v. Enslin, 2 Mass. 554, there was a devise to the testator's wife for life, and after her decease unto *Page 508 the testator's daughter and her heirs forever, but in case the daughter should happen to die after she came of age, or have lawful heir of her body begotten, then over. The court held the devise a fee simple, defeasible on a condition subsquent."
The note in 29 L.R.A. (N.S.), p. 973, reads as follows:
"The rule is, when the ancestor takes an estate of freehold by any gift or conveyance, and in the same gift of conveyance there is a limitation, either mediate or immediate, to his heirs, or heirs of his body, the word `heirs' is a word of limitation of the estate, and not of purchase. The remainder is immediately executed in possession in the ancestor so taking the freehold.Baker v. Scott, 62 Ill. 86."
The deed of Mary A. Ramp to Sarah L. Hulen and the heirs of her body, only forever, of October 14, 1903, convey a fee-simple title to Sarah L. Hulen by reason of the fact that Sarah L. Hulen had heirs of her body, being the mother of the plaintiffs S.A. Lytle, A.D. Lytle, W.H. Lytle and Ed. A. Lytle and grandmother of plaintiffs Pearl Lytle and Ruby Thomas, children of her deceased son, the conditional fee became absolute, by performance of the condition, so that she was enabled to convey the land and thereby to bar her issue, the plaintiffs, her children and grandchildren: 10 R.C.L., p. 654, § 9; Orndoff v. Turman, 2 Leigh (Va.), 200 (21 Am. Dec., pp. 608, 609); 1 Thompson on Real Property, § 690, Vol. 4, §§ 3354, 3356; Washburn on Real Property (5 ed.), Vol. 1, p. 97; Tiffany on Real Property (2 ed.), Vol. 1, p. 52, § 23;Carolina Tbr. Co. v. Holden, 90 S.C. 470 (73 S.E. 869, 870);Crawford v. Masters, 98 S.C. 458 (82 S.E. 793).
The instrument of March 29, 1904, exhibit 2, was executed and recorded by Mary A. Ramp without *Page 509 the knowledge or consent of Sarah L. Hulen. The title passed out of the mother to the daughter by the deed of October 14, 1903; the purported deed of March 29, 1904, is inefficacious for any purpose whatsoever: Watson v. Smith, 7 Or. 448; Langley v.Kesler, 57 Or. 281, 285, 286 (110 P. 401, 111 P. 246).
In the State of Oregon, the statute with reference to conveyance conferred the power of alienation and hence abolished the fee tail. Therefore, the estate known as the fee simple conditional at common law prior to the statute de donis, is recognized in this state, and a deed to one and the heirs of her body creates such an estate: Rowland v. Warren, 10 Or. 129;Bilyeu v. Crouch, 96 Or. 66, 70 (189 P. 222).
The deed to the Schmitke farm of date May 4, 1905, from Mary A. Ramp to "Sarah L. Hulen, during her natural life and after her death to the heirs of her body only" to hold forever, giving full effect to all the language thereof, she having heirs of her body living, conveyed a fee-simple estate in the land.
The common-law rule has been abolished in this state as to wills, Section 10119, Or. L., but not as to deeds, so that a deed to Mrs. Hulen for and during her natural life and after her death to the heirs of her body only, conveyed to her a fee-simple estate and that the plaintiffs, her heirs, take by descent and not as purchasers; in other words, their only interest in this property will be by inheritance; and Mrs. Hulen had the right to convey the fee or encumber it to any extent she desired.
The dye was cast by the enunciation in Rowland v. Warren,supra. The holding in that case sanctioned and followed inBilyeu v. Crouch, supra, has become *Page 510 a settled rule of property in the state of Oregon and should not be annulled.
"The common law of England and principles of equity, not modified by the statutes of Iowa or of this government, and not incompatible with its principles, shall constitute a part of the law of this land." Or. L. 1843, 49, p. 100, Act of June 27, 1844.
The foregoing statute continued and remained in effect when the Constitution of Oregon was adopted in 1859. Article XVIII, Section 7 of the Oregon Constitution provides:
"All laws in force in the territory of Oregon when this constitution takes effect, and consistent therewith, shall continue in force until altered or repealed."
Hence the Act of June 27, 1844, and Section 7 of Article XVIII of the Constitution constitute a statutory and constitutional declaration that the common law of England, unless modified by the statutes of Iowa when the Act of June 27, 1844, was enacted, or subsequently modified by the statute of Oregon, and not incompatible with the principles of our government, shall constitute a part of the law of Oregon: Peery v. Fletcher,93 Or. 43, 52 (182 P. 143); In re Water Rights of Hood River,114 Or. 112, 166 (227 P. 1065).
In 2 Washburn on Real Property (5 ed.), page 616, we read the following:
"* * that if one makes a limitation to another for life, with a remainder over mediately or immediately to his heirs, or the heirs of his body, the heirs do not take remainders at all, but the word `heirs' is regarded as defining or limiting the estate which the first taker has, and his heirs take by descent, and not by purchase." *Page 511
On page 646 et seq. the same author states:
"While in form the estate has two parts, a particular one for life, with a contingent remainder to the heirs of the tenant who takes the particular estate, it is constructively a single estate of inheritance in the first taker. The form of limitation of such estates is to the grantee or devisee for life, and after his death to his heirs, or the heirs of his body, either mediately or immediately, both estates being created by the same deed or devise. This rule, instead of regarding a part of the entire estate as in the ancestor, and a part in his heirs, considers the entire estate as being in him alone; that the intent in creating it was to have it go in a certain line of succession, and, if the first taker died intestate, his heirs should take by descent from him, and not as purchasers under the original limitation. * * it has been a rule of the common law, not merely of construction, but of imperative obligation, that if an estate is limited to one for life, and by the same gift or conveyance it is limited to his heirs in fee or in tail, the word `heirs' is a word of limitation of his, the first taker's estate, and that heirs under such a deed or gift would have no greater interest or right than the heirs of any grantee in fee where an estate is given generally to him and his heirs."
And also on page 647:
"It was at first understood, that, in case of such limitation, the estate was in fact to go to the heirs of the grantee named; that though he had a right to enjoy it during life, he had no right to cut off the descent by alienation; and that when, therefore, the word `heirs' in the progress of estates, came to be regarded as a mere term of limitation, giving the grantee a complete ownership, with an unrestricted right of alienation, it was not easy to distinguish between a case where the limitation was to one and his heirs, and that where it was to him for life, and, after his death, to his heirs to the effect and common law being the same in both forms of limitation." *Page 512
There is nothing in the rule inconsistent with the genius of our institutions. It conforms with the liberal and commercial spirit of the age. It checks the disposition to lock up property and render it inalienable: 4 Kent's Com., p. 249; 24 R.C.L., p. 887; Polk v. Faris, 9 Yerg. (Tenn.) 209 (30 Am. Dec. 400). See notes 29 L.R.A. (N.S.), p. 963 et seq.
One of these notes on page 975 of 29 L.R.A. (N.S.), reads thus:
"When the ancestor by any conveyance takes an estate for life with remainder, mediately or immediately, to his heirs, in fee or in tail, the estate shall vest absolutely in the first grantee or devisee, and no estate remain which is secured by the deed to the heirs. In other words, the term `heirs' in such case is to be regarded as one of limitation, and not of purchase." Smith v.Hastin, 29 Vt. 240.
To the same effect see Patterson v. Jackman, 51 Ind. 283;Lytle v. Beveridge, 58 N.Y. 592; Crockett v. Robinson,46 N.H. 454; Handy v. McKim, 64 Md. 560 (4 A. 125); Wolfer v. Hemmer, 144 Ill. 554 (33 N.E. 751); Scott v. Brin,48 Tex. Civ. App. 500 (107 S.W. 565); Carpenter v. Van Olinder,127 Ill. 42 (19 N.E. 868, 11 Am. St. Rep. 92, 2 L.R.A. 455);Hageman v. Hageman, 129 Ill. 164, 167 (21 N.E. 814).
Fearne on Cont. Remainders, Vol. I, at page 27, treats the question in the following manner:
"Upon the first of these grounds we are to observe, that wherever the ancestor takes an estate of freehold, or frank tenement, and an immediate remainder is thereon limited in the same conveyance to his heirs, or heirs in tail, such remainder is immediately executed in possession in the ancestor so taking the freehold, and therefore is not contingent or in abeyance: as an estate for life to A. remainder to the heirs of his *Page 513 body, this is not a contingent remainder to the heir of the body of A. but an immediate estate tail in A."
Note (L) on page 27 of the same volume:
"Where land is limited to a person for his life, and after his decease to his heirs, or to the heirs of his body, the second limitation might be thought to have an appearance of giving the heir an estate by purchase, or an original estate, primarily vested in himself, and not claimed by him derivatively through his ancestor. For, as the land is expressly limited to the ancestor for his life, it might seem contrary both to the expression of the deed and the intention of the grantor, that the ancestor should take a larger estate; and as no person can have an heir during his life, the heir being the individual on whom the law casts the succession at the instant of the ancestor's decease, it might be thought that, where an estate is limited to a person expressly for his life, and after his decease, to his heirs, the limitation to the heirs must necessarily be contingent during the ancestor's life.
"In either supposition, there would be ground to contend that the heirs should take an estate of inheritance by purchase; and the limitation to the heirs would then fall within Mr. Fearne's fourth class of contingent remainders, being a limitation in remainder to a person not being or not ascertained.
"But by a rule of law of early antiquity, it is settled that, in all these cases, the remainder to the heirs is immediately executed in the ancestor, and therefore is not contingent or in abeyance."
In the present case all the circumstances indicate that the intent of Mary A. Ramp at the time of the execution of the deeds was that the deeds should have such effect as accords with the established rules of law governing conveyances. The words "heirs of her body, only," are words of inheritance and not of *Page 514 purchase: Duckett v. Butler, 67 S.C. 130 (45 S.E. 137);Holman v. Wesner, 67 S.C. 307 (45 S.E. 206).
In short, Mary A. Ramp was the owner in fee simple of the real estate involved. She executed a deed to Sarah L. Hulen, her daughter, and the heirs of her body, only forever, by which she conveyed all of the estate which she had in the land with the possibility of a reverter in the event that Sarah L. Hulen had no heirs of her body. All of the title having passed from Mrs. Ramp, and the heirs having or taking no title until after the death of the grantee, Sarah L. Hulen, the title in fee upon her having heirs of her body resided in the first taker, Sarah L. Hulen, and she could alienate the same. It was the apparent intention of Mary A. Ramp to convey such title.
It follows that the decree of the Circuit Court should be affirmed.
It is so ordered. AFFIRMED.
BROWN, J., concurs in the result.