delivered the opinion of the Court:
It is contended by defendant in error, that by the deed of August 3, 1883, from Humphrey and wife to “Maria Anna Lehndorf and her heirs by her present husband, Henry Lehndorf,” Mrs. Lehndorf took a fee simple estate in the lands conveyed, while plaintiffs in error contend that she thereby took a life estate only, with remainder in fee to her children by said Henry Lehndorf.
The deed being statutory in form, contains no habendwm limiting or defining the estate taken by Mrs. Lehndorf, and although the deed must be held equivalent to one containing full covenants, (Elder v. Derby, 98 Ill. 228,) it is manifest that the estate granted would not be enlarged or restricted thereby. Such covenants are an assurance of the title granted to the grantees, whomsoever they may be. If Mrs. Lehndorf took the fee, the covenants assure that estate to her; if she takes an estate in tail, the covenantor warrants to her a life estate, and the remainder in fee to whomever would take upon determination of her estate. Therefore, as said by counsel for defendant in error, the determination of the question depends upon a construction of the granting clause of the deed, which is, that the grantors, in consideration, etc., “convey and warrant to Maria Anna Lehndorf, and her heirs by her present husband, Henry Lehndorf, of,” etc., the lands in controversy.
The legitimate purpose of all construction of a contract or other instrument in writing, is, to ascertain the intention of the party or parties in making the same, and when this is determined, effect will he given thereto, unless to do so would violate some established rule of property. The nature and quantity of the interest granted by a deed are always to be ascertained from the instrument itself, and are to be determined by the court as a matter of law. The intention of the parties will control the court in construction of the deed, but it is the intention apparent and manifest in the instrument, construing each clause, word and term involved in the construction according to its legal import, and giving to each thus construed its legal effect. Washburn on Real Prop. 404; Bond v. Fay, 12 Allen, 88 ; Lippett v. Kelley, 46 Vt. 516 ; Price v. Sisson, 13 N. J. Eq. 178; Caldwell v. Fulton, 31 Pa. St. 489; Wager v. Wager, 1 S. & R. 374.
It can not be presumed that the parties used words or terms in the conveyance without intending some meaning should be given them, or without an intent that the effect legitimately resulting from then: use should follow; hence, if it can be done consistently with the rules of law, that construction will be adopted which will give effect to the instrument, and to each word and term employed, rejecting none as meaningless or repugnant.
We should, perhaps, first notice the contention of counsel for defendant in error, that by virtue of section 13 of the Conveyance act, (as there is here no express' limitation upon the estate of Mrs. Lehndorf, and as no one can have heirs while living,) the words following the grant to her should he rejected, and the deed read as if to her only. This arises from a misapprehension of the statute. The evident purpose of the section referred to, was to change the rule of the common law, whereby, if a conveyance, etc., was made without words of inheritance, an estate for the life of the grantee only was created. The section is as follows:
“Sec. 13. Every estate in lands which shall he granted, conveyed or devised, although other words heretofore necessary to transfer an estate of inheritance be not added, shall be deemed a fee simple estate of inheritance, if a less estate be not limited by express words, or do not appear to have been granted, conveyed or devised, by construction or operation of law.”
It is not necessary, as seems to be supposed, that to create a less estate than the fee, there should be express words of limitation, either under the statute or at common law. It is sufficient for that purpose if it appear, by necessary implication, that a less estate was granted. In an early case, (Frogmorton v. Wharrey, 2 W. Black. 728,) where there was a surrender of copyholds by R., who was seized in fee, to M., his then intended wife, and the heirs of their two bodies, etc., Wiliiot, C. J., delivering the opinion of the court for himself, Bathurst, Gould and Blackstone, JJ., after holding, on authority of Gossage v. Taylor, Styles, 325, and Lane v. Pannel, 1 Roll. 438, that the children thus begotten took as purchasers and not as heirs, says, the only difference in the cases is, that in those cases “the wife had an express estate for life, and here not. But upon legal principles the cases are just alike. An estate ‘to A, and the heirs of his body,’ is the same as an estate ‘to A for life, remainder to the heirs of his body.’ ” By operation of law, the added words created, in the case cited, in M. a life estate only, with remainder to the hens of herself and R., as purchasers. So the grant “to A, and the heirs of his body,” by operation of law creates an estate tail in A, remainder in tail. And this has been the uniform holding.
The sixth section of the Conveyance act provides, that in cases where, by the common law, any person or persons might, after its passage, become seized in fee tail of any lands, etc., by virtue of any gift, devise, grant or conveyance “hereafter to be made,” or by any other means whatsoever, such person or persons, instead of being or becoming seized thereof in fee tail, shall he deemed and adjudged to be and become seized thereof for his natural life only, and the remainder shall pass, in fee simple absolute,.to the person or persons to whom the estate tail would, on the death of the first grantee or donee, pass, according to the course of the common law, by virtue of such gift, devise or conveyance. It is apparent, if at common law, by virtue of this conveyance, Mrs. Lehndorf would take an estate' tail, whether an estate tail general, or an estate tail special, the thirteenth section would be inoperative, and by virtue of section 6 she would become seized of an estate for her life, with remainder in fee to those to whom the estate is immediately limited.
Estates tail came into general use upon constructidn by the courts, of the statute de donis conditionalibus, (13 Edw. 1, c. 1, sec. 1,) and while no extended discussion will be necessary, an examination sufficient to determine if this case falls within the rules creating an estate tail, will be proper.
To create an estate in fee simple, at common law, thq grant must be to the grantee and his heirs, without limitation, to take from generation to generation, in the regular course of descent. A tenant in fee simple is defined by Blackstone to' be, “he that hath lands, tenements or hereditaments, to hold to him and his heirs forever, generally, absolutely, simply; without mentioning what heirs, but referring that to his own pleasure or the disposition of the law.” (Com. 11, 104.) Estates in fee tail were of two kinds: Estates tail general, as where the grant was to one and the heirs of his body generally, so that his issue in general, by each and all marriages, are capable of taking per formam doni; and estates tail special, where the gift or grant was restricted to certain heirs, or class of heirs, of the donee’s body. (Blackstone’s Com. 11, 113, 114; 4 Kent’s Com. 11; 1 Washburn on Beal Prop. *66.) In a grant of lands, words of-inheritance were necessary, at common law, to the creation of a fee, but in the creation of a fee tail estate more was required. There must also be words of procreation, indicating the body out of which the heirs were to issue, or by whom they were to be begotten. The ordinary formula was to make the gift or grant to the donee, as the grantee was called, “and the hems of his body,” or “her heirs upon her body to be begotten,” or “upon her body to be begotten by A;” but there was no especial efficacy in these particular forms of words, and it was requisite, only, that in addition to limitation to “heirs,” the description of the heirs should be such that it should appear they were to be the issue of a particular person. Blaekstone’s Com. 11, 114; 1 Washburn on Beal Prop. *72; 2 Preston on Estates, 478, and eases cited; 2 Jarman on Wills, 325.
The necessary words of inheritance are not here wanting to create a fee simple, or fee tail, at common law. The grant is to Mrs. Lehndorf and her heirs, and if the description had stopped here, a fee simple estate would, at common law, have passed by the deed. The grant is not, however, to her and her heirs simpliciter, but to her and her heirs by a particular husband, and by necessary implication excludes the construction that heirs generally were intended. Heirs, generally, would include not only those designated, but children she may have or have had by any other husband, as well as collaterals. Who, under the law, could be her heirs by her present husband except her children by him begotten ? If the word “begotten” had been introduced before the preposition “by,” so as that it would have read, “her heirs begotten by her present husband,” etc., it would have been no more certain that the issue of her body was intended. If it be conceded that equivalent words, which, by necessary implication, describe and designate the particular body out of which the heir should proceed, would suffice to create an estate tail at common law, which seems to be done by the cases and text-writers, then the conclusion seems irresistible that such an estate was here created. “Her heirs by her present husband,” could be no other than the issue of her body by him begotten. No other person, or class of persons, would answer the description, and they would and do fill it in every particular.
This precise point was ruled in Wright v. Vernon, 2 Drewry, 439, where it is said: “The effect, therefore, of a limitation ‘to the right heirs of Sir Thomas Samwell, by a particular wife, forever,’ is precisely the same as that of a limitation to the heirs of his body by that particular wife, forever. The words, ‘of his body,’ are not in the least degree necessary to this construction of the term ‘heirs,’ or ‘right heirs,’ because without their insertion the full and absolute effect of them is involved in the description, ‘his right heirs, by Mary, his second wife,’ which description limits the meaning of the term ‘heirs’ to heirs special, procreated by himself, as effectually and as necessarily as the words, ‘of his body,’ could do if they had been added.” This was a case, it is true, arising upon a devise, in respect of which much greater latitude of construction is allowable than in the construction of deeds; but that consideration can in no way affect the weight of the authority upon the matter being considered.
It follows, that Mrs. Lehndorf would, at common law, be seized, by virtue of this conveyance, of an estate tail special in the lands conveyed, and therefore, under the statute, would take an estate for her life only, and that, by virtue of the statute cited, the remainder vested in fee in her children by her said husband, in esse at the time of making the deed, subject possibly, however, to be opened to let in after-born children of the same class. If no issue of her body “by her present husband” had been then living, the remainder would have fallen under Fearne’s fourth and Blackstone’s first definition ■ of a contingent remainder, i. e., when the remainder is limited “to a dubious and uncertain person.” But here, at least two of the children who would, under the statute, take the fee simple estate upon the determination of the life estate, were in being when the deed was executed and delivered, and the remainder vested immediately in them in fee, subject to the possible contingency of being divested pro tanto, if opened to let in after-born children answering the same description. The person to whom the remainder is limited is ascertained, the ■event upon which it is to take effect is certain to happen, and although it may be defeated by the death of such person before the determination of the particular estate, it is a vested remainder. “It is the uncertainty of the right of enjoyment which renders a remainder contingent,—not the uncertainty of its actual enjoyment.” 2 Blacks. Com. 169; Fearne on Rem. 149; Kent’s Com. 203; 2 Sandf. C. B. 533; Hawley v. James, 5 Paige, 467; Moore v. Lyons, 25 Wend. 144.
But it is said that the rule in Shelley’s case should be applied ; but it will be seen that its application will produce the same result. . That rule, as formulated in 2 Jarman on Wills, page 332, will best illustrate the position here. It is: “The rule simply is, that where an estate of freehold is limited "to a person, and the same instrument contains a limitation, either mediate or immediate, to his heirs, or the heirs of his "body, the word “heirs’ is a word of limitation,—i. e., the ancestor takes the whole estate comprised in this term. Thus, if the limitation be to the heirs of his body, he takes a fee tail; if to his heirs general, a fee simple.” The rule operates upon "the words of inheritance without affecting the words of procreation, so that if, in-any case, the words, “heirs of his body,” ■or other equivalents sufficient to create an estate tail, are used, a fee tail is vested in the first taker, and not the fee simple, as seems to be supposed. Therefore, if the rule be applied, Mrs. Lehndorf would, at common law, be seized of an estate in fee tail, and brought directly within the terms of section 6 of the Conveyance act, before cited. When, therefore, Mrs. Lehndorf, joined by her husband, mortgaged the land to Humphrey, it was not in her power to incumber the fee, and that estate passed to and vested in her two children then living, unincumbered by the lien created by the mortgage.
But it is said this mortgage was given for the purchase money of the land, and that in some way, not clearly defined in argument, a lien therefore exists upon the estate conveyed. If it is intended thereby to insist that a vendor’s lien exists, the answer to such a contention would be three-fold. A vendor’s lien upon real estate is a creation of the courts of equity, upon the equitable consideration that where the vendor has taken no security for the purchase money, and done no act showing an intention to waive the lien, it is presumed that it was not the intention of the parties that one should part with and the other acquire the title without payment of the purchase price of the land. It exists, if at all, independent of any contract, is personal to the vendor, and whenever, from thé circumstances, the' court can infer that he did not rely upon the lien at the time of the sale, or subsequently abandoned it as security, it will be held to be waived. (Pomeroy’s Equity; Cowl V. Varnum, 37 Ill. 184; Richards v. Leaming, 27 id. 432.) Thus, taking an independent security will discharge the lien. Conover v. Wmren, 1 Gilm. 432.
It is manifest that when the deed, and mortgage back to secure the purchase money, are parts of a single transaction, as in this case, one estate may be conveyed by the deed and a wholly different interest conveyed by the mortgage,—as, if the fee be granted by the deed, and an estate for life or for years mortgaged. The power of the parties to so contract can not be questioned. If the vendor saw proper to take security by mortgage upon less than the whole land, or upon less than the estate conveyed, for the unpaid purchase money, there is no reason why it would not be a valid contract, and the residue of the land or estate pass by the deed, unincumbered by any lien in his favor.
But the bill in this case is for foreclosure of the mortgage given to secure the purchase money, and proceeds upon the theory that in equity the mortgage attached to and became a lien upon the fee which is alleged to be in Mrs. Lehndorf, and is to enforce the security under the contract,—a theory wholly inconsistent with the preservation of a vendor’s lien. Again, as before said, the lien created by implication in favor of the vendor is personal to him, and is not assignable or transferable, even by express contract between the vendor and an assignee. It can be enforced only by the vendor himself. (Richards v. Leaming, supra; Keith v. Horner, 32 Ill. 524; McLaurie v. Thomas, 39 id. 291; Markoe v. Andras, 67 id. 34; Moshier v. Meek, 80 id. 79.) This is an established rule in equity, and is an insuperable obstacle to the enforcement of a vendor’s lien by defendant in error. Such liens are secret, often productive of gross injustice to others dealing in respect of the property to which they attach, and courts of equity will not extend them beyond the requirements of the settled principles of equity.
But it is said that the deed and mortgage being parts of the same transaction, the title would not vest as against the purchase money, and the principle so often announced by this and other courts, that in such case there is no interregnum between the effective operation of the deed and mortgage in which judgment liens and the like can attach, as against the mortgage security, is sought to be invoked. The doctrine can have no application to the facts of this case. It is true, as so often held, that in the case stated, the making and delivery of the deed and mortgage being simultaneous, and parts of one transaction, are to be construed as one act; eo instanti upon the delivery of the deed the mortgage becomes effective, and the title passes to the mortgagor, subject to the lien of the mortgage. The mortgage attaches to the title conveyed in 'its transmission from the vendor to the vendee, and, obviously, is effective in arresting the passage of the title so far only as it reconveys the estate to the original vendor. Therefore, if, by deed, a life estate is conveyed to one and the fee to another, and, as part of the same transaction, the life estate is mortgaged by the grantee thereof to the grantor, the mortgage would attach to the life estate, and the life tenant would take subject to the lien, and the fee would pass unaffected by the mortgage.
It is also insisted that the children of Mrs. Lehndorf are-mere volunteers, who paid nothing, and therefore, in equity, their interest should be subjected to the payment of this purchase money. We know of no recognized principle of equity by which the case can be affected by that consideration. If it be conceded they paid nothing, it is apparent defendant in error has no such equity as should prevail against their title. It is not enough that they are not purchasers for value,—the party questioning their title must show himself legally or equitably entitled to the relief. When defendant in error purchased the notes of Humphrey, he had notice, by the record, of the state of the title, and that the mortgagor, in the mortgage given to secure them, had a life estate only in the lands mortgaged. He must be presumed to have known that the mortgage conveyed, subject to the condition of defeasance, the life estate of Mrs. Lehndorf, only, and also that the assignment of the notes, or of the notes and mortgage, could not transfer to him any equitable lien Humphrey might have had upon the fee in the land for the unpaid purchase money.
Two thousand dollars of the consideration was paid at the-execution and delivery of the deed, but by whom does not appear. If the children paid nothing, it was neither unlawful nor immoral for the parents, or either of them, to provide for-the future welfare of their offspring by purchasing this land and having the fee deeded to them, if done without fraud as to existing creditors, and with the knowledge and consent of their grantor. No fraud is alleged or shown, nor is it shown that the mortgage upon the life estate of Mrs. Lehndorf was or is inadequate security for the money remaining unpaid to-defendant in error; but if it was, it could make no difference, as we have seen it is not purchase money in his hands, in any sense, in which a lien can be enforced in equity, otherwise than by a foreclosure of the mortgage upon the estate and interest of which Mrs. Lehndorf was seized,—that is, her life estate in these lands.
It appears by the bill that the deed was made to Mrs. Lehndorf and her heirs by her present husband, etc., at her request. The grantor had full knowledge of the grant, and took back a mortgage to secure the unpaid purchase money, executed by Mrs. Lehndorf and her husband, only. Defendant in error purchased the notes with notice of the facts as disclosed by the record, and if he must lose because of the inadequacy of his security, he can not complain.
The decree of the circuit court will be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
Decree reversed.