The plaintiffs in this cause, Hilburn, etal., are the four children and heirs of Marietta Hilburn, who were living at the time of her death. On the fourteenth of September, 1882, they sued the defendants, the Horsleys, with a number of others, in ejectment, to recover two contiguous quarter sections of land, described as the northeast quarter of section 10, and the northwest quarter of section 11, in township 19 north, of range 30 west. They claim under Jesse Shelton, their grand father, who, on the eleventh of July, 1851, conveyed the lands to his daughter, their mother, and “the heirs of her body that are now bora or hereafter may be born,” alleging further, that on the thirteenth of December, 1877, she conveyed to plaintiff's.
A copy of Shelton’s deed is incorporated as an exhibit in the complaint. They offer also to exhibit the deed of the mother, but it does not appear to have been filed.
Burrell and William Horsley pleaded that they’ were exclusively in possession of the northwest quarter of section 11, the others being in possession of the northeast quarter of section 10; and that there was a misjoinder of parties. The plaintiff's seem then to have split their action, and on the fourteenth of April, 1883, to have filed a separate complaint against the Horsleys alone, for the northwest quarter of section 11, leaving the original suit to proceed against the other defendants, for the northeast quarter of section 10. In this new complaint they pretty much reiterate the matter of the first, except that they do not set up the mother’s deed to them, but say she died on the fourteenth of August, 1881.
Shelton’s deed contained this clause: “ It is hereby distinctly understood, as a part of this deed of gift, that my said daughter nor her husband, Francis M. Hilburn, nor none of her children now born, or which may hereafter be born, shall have any power, nor no other person for them, to sell or dispose of any part of said lands, without my consent during my natural life, or until the youngest child of my said daughter, now born or which may hereafter be born, shall have arrived at full age.”
The Horsleys excepted to this deed on account of the uncertainty of the title of plaintiff's claimed under it, but no disposition seems to have been made of the exception. They then answered, saying:
“ That after the execution of Shelton’s deed to his daughter, Marietta, she, with her husband, and with the consent and approval of her father, sold and conveyed the said northwest quarter to A. B.' Greenwood, but that there was a mistake in the certificate of her acknowledgment, whereby it failed to show that she was separately examined; whereas, in fact, she was.” Saying further : “That after-wards F. M. Hilburn, who had been duly appointed the guardian of said heirs, by the Benton probate court, acting under the authority of that court, lawfully obtained for the purpose, sold and conveyed the same tract to said Greenwood ; but ‘by the exigences of the late war or otherwise,’the record of his appointment as guardian, and the order authorizing the sale, and the approval of the sale by the court, had all been lost.”
They ask leave to prove the lost records, and set up a conveyance from Greenwood to Burrell Horsley.
They say further, that said Marietta, before her death, liad been for fifteen years discovert, and that they had been in the open, peaceable and adverse possession of the land for that length of time before commencement of the suit; wherefore they plead the statute of limitations.
They submit if they were mistaken in the effect of Shelton’s deed, which they contend conveyed a fee simple title, yet as she sold for valuable consideration, the plaintiffs are only entitled to the proceeds after her death, to be recovered of her estate. They ask, in case plaintiffs may be found entitled to the land, that an account be taken of valuable and lasting improvements made by them, and for taxes paid, and that a lien for same be declared.
The court overruled a motion to transfer the cause to the equity docket.
The cause was heard by the court without a jury. It was adjudged that two of the plaintiffs, Sarah and Cora J., who were married women, made parties with their husbands, were entitled to an undivided two-fifths of the land, and damages were assessed in their favor for use and occupation at §138.48, after deducting emblements belonging to defendants as life tenants, and taxes paid after the termination of life tenancy. Eor the rest, the judgment was for the defendants and against the other plaintiffs. Costs were adjudged in the same proportion, and both plaintiffs and defendants appealed.
There were two bills of exceptions prepared by the parties respectively, both of which were signed by the judge and made matter of record.
The material facts further disclosed by these bills of exceptions are substantially, that Mrs. Marietta Hilburn and her husband conveyed all her interest in the land to Greenwood, on the fourteenth of January, 1853. The certificate of acknowledgment failed to show a privy examination.
Also, a deed from Greenwood and wife to Burrell Horsley, dated seventh of December, 1867.
Also, by oral proof, that Erancis M. Hilburn was duly appointed guardian of Robert and Clarence Hilburn ; that he made application to the probate court for the sale of said land, as required by law; that it was granted for the maintenance and education of the wards; that the land was sold to Greenwood, reported to the probate court, and confirmed; and that all the records and proceedings of the probate court relating to said sale had been lost or destroyed through the war. The proof was very full, definite and reliable upon each and every point essential to the validity of the sale. Exceptions to it were saved.
Hilburn’s deed as guardian recites his appointment, the order for sale, the sale itself, and the purchase by Greenwood. The deed dated the fourteenth of January, 1853, conveys all the interest of Robert and Clarence Hilburn.
The defendants ofi'ered, but were not allowed to prove that after the purchase from Greenwood by Burrell Horsley, they made lasting and valuable improvements on the land to the value of $2,000. The court refused that, but conceded that they might prove such improvements as were put upon the lands between the death of Mrs. Marietta Hilburn, on the fourteenth of August, 1881, to the beginning of the suit. No proofs were actually made of any improvements, or of their value, or of amounts of taxes paid at any time.
Mrs. Marietta Hilburn had been the mother of five children, born respectively as follows : Robert, born in 1846; Ida, in 1849; Clarence, fourteenth August, 1851; Sarah, in 1854, and Cora in 1859. Ida died in December, 1851, without issue. The others are the present plaintiffs. It thus appears that when Shelton’s deed to the mother was made, on the eleventh of July, 1851, she had issue living, Robert and Ida. That Clarence, Sarah and Cora had been born, and Ida had died afterwards; Sarah had married Montgomery and Cora, McConnell.
The court found the facts accordingly, adding, with regard to Mrs. Marietta’s deed to Greenwood, that it was, in fact, actually acknowledged properly, but that the certificate was defective; also, that after the death of Marietta, defendants had paid taxes and made improvements, but no amount was found either of improvements, taxes or rents.
The court also made declarations of law to this effect:
First — That Shelton’s deed conveyed to his daughter, Marietta, a life estate, with remainder in fee to the heirs, of her body.
Second — That the restriction upon alienation was void, as inconsistent with the estate granted.
Third — That upon the death of Ida, her mother took, by descent, an interest in fee to the extent of one-fifth of the remainder.
Fourth — That by her deed Greenwood took her life interest and one-fifth of the fee in remainder.
Fifth — That by the guardian’s deed he took two other fifths of the remainder in fee.
Sixth — This life estate and three-fifths of the remainder in fee passed by Greenwood’s deed to Burrell Horsley.
Seventh — That the life estate determined by the death of Marietta, on the fourteenth of August, 1881.
Eighth — That Robert and Clarence Hilburn had nothing left.
Ninth — That Sarah and Cora were entitled to tw'o-fifths of the fee, and one-fifth, each, of the value of the rents for 1882 and 1883.
Tenth — That defendants have three-fifths of the fee, and the right to recover of Sarah and Cora the value of two-fifths of the improvements, and of taxes expended. Doubtless by clerical misprision, the court is made to add, “and three-fifths of all the costs of this action paid out by defendants.”
The judgment was rendered in favor of Cora and Sarah against defendants, for two-fifths of the costs, and in favor of defendants against plaintiffs for three-fifths of the same.
There were separate motions for a uew trial, each insisting that the judgment was contrary to the law and the evidence. It is urged, also, that the court erred in refusing to allow proof of improvements during the entire time of defendants’ alleged ownership.
l. ConofEDeed°:N a^Life tender-man.n"
The first and most material question which arises is this: "What interest did Mrs. Marietta Hilburn take by her fat]ier’s deed, and if not a fee simple, then what were the rights of the heirs of her body to any remainder ? Did it vest in any of them, and which, and when ?
The first colonial charter under which the English were permanently planted in America, was granted by James I, in the fourtheyear of his reign, to a company of business adventurers in London, who established their colony at Jamestown, in Virginia. The colonists had prescribed to them no code of laws beyond a few political regulations. For the regulation of their private affairs they brought with them, as Englishmen, the body of laws which governed at home, and which, except as changed by colonial or parliamentary regulations, or as rendered inapplicable to their peculiar circumstances, was recognized and administered by the courts of the colony. This body of laws formed the basis of the jurisprudence- of Virginia, and the other States of the South, formed in whole or in part out of her vast original territory.
After the purchase by the United States, from the French,, of the territory west of the Mississippi, that portion of it out of which Arkansas and Missouri were afterwards created, was largely settled by immigrants and pioneers from Virginia, Kentucky, North Carolina and Tennessee, which had been themselves formed, wholly or in part, out of the territory of the original Jamestown colony. They too brought over the Mississippi the same birthright which their ancestors had brought over the ocean.
In the year 1816, whilst this constituted a part of the Missouri territory, it was enacted that:
“ The common lam of England, which is of a general nature, and all the statutes of the British Parliament in aid of, or to supply the defects of, the said common law, made prior to the fourth year of James I, and of general nature, and not local to that kingdom, which said common law and statutes are not contrary to the laws of this territory, and not repugnant to, or inconsistent with, the Constitution and laws of the United States, shall be the rule of decision in this territory until altered or repealed by the Legislature.”
This statute remained to govern the subsequently formed territory of Arkansas, and was afterwards re-enacted as a part of the laws of the State, with some change of phraseology and grammatical arrangements. Dev. Stat, eh. 88, see. 1; Mansf. Digest, see. 666.
Originally, as it first emerges into the dim light of judicial history, the common law was of small proportions,, dealing with the few interests and simple habits of a plain rural population. It expanded with the advance of civilization, the growth of trade, and the more divei-sified and complicated interests of social life. This growth was due mostly to the courts, but was aided from time to time by statutes, more or less ancient, changing it, or enlarging the application of its principles. Meanwhile there gradually grew up a system of equity jurisprudence, with principles and modes of procedure distinct from those administered in the courts of common law. Although originally the common law consisted wholly of usages and maxims established in times so remote that the memory of man ran not to the contrary, and although this, strictly, is what is meant by the common law, yet with the importation of the feudal system, with its radical changes of the laws regulating lands, and with the necessary legislation which thereupon arose, the common law came in time to be commonly understood to mean that body of laws which had been modified by the feudal system and ancient statutes, and which was administered in the courts of law, in contradistinction with that body of laws administered in courts of 'equity, and also with those recent statutory changes which had been made in the old common law, after the latter had been adopted, and for a long time had obtained in the administration of justice by courts of common law. It was to preclude the idea of its ancient and strict sense, and manifest the policy of adopting it in its more popular sense, with the addition of all statutes modifying and changing it, down to the fourth year of James, that our statute makes allusion to these statutory changes.
It is contended, plausibly and very ingerriously, by counsel for defendant appellants, that at common law the deed now in question would have created a conditional fee, which by the old law would have become absolute on the birth of issue, so that the donee might have disposed ■of it freely.
That is true. There were no estates in tail at common law, strictly speaking, and such a deed as this would have given the absolute estate (issue having been shown) to Mrs. Hilburn. (Blackstone, book 11, p. 110.) And it so remained until about six hundred years ago, in the reign of Edward I. Then was passed the statute de donis conditionalibus, which changed all that, and created a new species of estates theretofore unknown, and which we call estates in tail. They are of different kinds, but it may suffice to say that a deed like this would have created an estate tail general; that is, an estate which might go to any of the descendants of the donee, by any husband, or of either sex, but which would be so tied up in her hands that she could not so alienate as to prevent the heirs from taking in remainder per formam cloni. This statute provided that in case of such a gift the land should go, after the grantee’s death, to his issue, if there were any, or if not, should revert to the donor.
In 1837 it was enacted by the Legislature of this State as follows:
“ In cases where, by common law, any person may hereafter become seized in fee tail of any lands or tenements, by virtue of any devise, gift, grant or other conveyance, such person, instead of being or becoming seized thereof in fee tail, shall be adjudged to be and become seized thereof for his natural life only, and the remainder shall pass in fee simple absolute to the person to whom the estate tail would first pass according to the course of the common law by virtue of such devise,” etc.
It is now claimed that by common law, before the statute de donis, Mrs. Marietta Hilburn, having issue, would have a fee simple absolute, and that the statute last above eited can of course have no application. It is evident, however, that at common law, in the sense of the law as it existed before the statute de donis, there was no such thing as a fee tail at all. The statute evidently means the common law as altered by that statute, and considered in its aspect of recognizing the newly created species of estates in tail. In this view Mrs. Hilburn, as the circuit judge properly held, took nothing but a bare life estate. Her conveyance could affect that alone, unless Ida had ,a vested interest, which her mother inherited. This Reads to a nicer, and not quite so obvious construction of the statute. The question affects not only the interest of Ida, but also the guardian’s sale of the interests of Robert and Clarence.
The statute says that the remainder shall pass in fee simple absolute to the person to whom the estate tail would first pass according to the course of the common law. It never could, under the circumstances, have passed to Ida at common law. During her mother’s lifetime she was not heir at all. At her mother’s death she was gone without leaving issue. There had been only a contingency that she might get an interest by surviving the mother, and that a vague and uncertain interest, which might be more or less according as there might be no more or many brothers and sisters. Nothing was vested as a right which she might transmit. At common law the surviving brothers, sisters and their descendants per stirpes, would be entitled to have the estate pass to them on the death of the mother, without any portion being intercepted by inheritance of the mother from Ida. (See Fcarne on Remainders, vol. 11, p. 20?i*.) The estate vested in the surviving children and their issue at the death of the mother, and did not vest in remainder at all, in any one, during her life. The mother inherited nothing from Ida, and the court erred in holding that she did, and that the interest of Ida passed by her deed through Greenwood to Burrell Horsley. Carmichael v. Carmichael, 43 N. Y., 359.
For like reason there was nothing in the ward of E. M. Hilburn which could be sold under order of the probate-court during the lifetime of the mother. There was no error in permitting the proof to be made, by parol, of the loss of tlie records, and of the proceedings which had been taken. The sale passed all that the wards had in the land that was salable, and which the probate court could authorize to be sold, but that was nothing. Nor was the sale effective, to carry subsequently acquired title. Section 642 of Mansfield’s Digest, upon this point, applies only to voluntary sales by the persons to be bound. It is to the effect that “if any person shall convey,” etc., having no title at the time, and shall afterwards acquire title, legal or equitable, it shall pass to the grantee.
2. Vendor DEE: After-ac<miredtitle
The court erred in holding that the interests of Robert and Clarence had become vested in Burrell Horsley. There was no error in holding that Sarah and Cora were entitled to recover.
The bills of exceptions fail to show the value of the rents. It was error, without proof, to render judgment for any rental value whatever. The record discloses that the real contest was concerning title. All the amounts are left blank throughout.
The court below, it is true, excluded proof of improvements made by the defendants during the existence of the life estate. They were indisputable owners of the land, tenants of the freehold per outvie vie. Improvements made on such a title may be referred to the interest of the owners of the life estate, and for these they would not, on general principles, be entitled to compensation from those in remainder. Whether or not the Horsleys would be entitled to any compensation at all for improvements made by them, or by Greenwood, would depend wholly upon their bona fi.de*, and their innocence of the real condition of the title. The occasion does not now arise for any discussion of the act of March 8, 1883, “for the better quieting of titles,” commonly called the “betterment” act, inasmuch as it does not appear wrhat improvements, if any, were made after the decease of Mrs. Marietta Hilburn, nor their value, nor that they were made in ignorance of the true condition of the title. Greenwood certainly, and Burrell Horsley probably, had access to all the knowledge concerning the title which the courts have now. It is better to reserve an opinion as to the force and true construction of the betterment act, for a case in which there may be full argument upon those points principally.
3. Transfer docket.
The court did not err in declining, on motion of defendants, to transfer the cause to the equity docket. This is only imperative where the answer sets up some defense exclusively cognizable in chancery. (Mansfield’s Digest, sec. —), or where all the issues are cognizable in chancery although not exclusively so. Any statutory rights which defendants may have under the betterment acts, are cognizable at law. With regard to the equitable right which exists independent of the statute, to have the improvements and taxes set off against rents and profits, although under the new systems of procedure, it has been permitted in some States, in actions of ejectment based on legal titles, yet formerly, it was only permissible in equity where the adverse claimant came into a court of chancery,, asking its aid to establish an equitable title. The authorities did not support the practice of allowing this sort of claim to be set up in defense, where the action was at lawr upon a legal title, nor generally to be asserted by the claimant, as actor, moving the court originally. It was a condition of doing equity imposed upon a complainant seeking the aid of equity.
The attempted restriction of alienation in Shelton’s, deed cannot be construed to confer upon the mother, or the children, or the probate court for them, a power in either with the consent of Shelton to alienate the whole.
This is as far as this case requires us to go. We are relieved of the necessity of deciding whether or not the restraint was inconsistent with the grant, since the deed of the mother, made with the assent of her father, is conceded to have carried all her interest.
Eor errors in ruling upon the title a new trial should have been granted on motion of the plaintiffs; and, for error in finding damages, it should have been granted on the part of defendants. Both appeals are sustained. Reverse the judgment and remand the cause for further-proceedings in accordance with law and this opinion.