The controversy involves the title to 80 acres of land. This land was bought in August, 1908, by Ben and Sarah Gruwell, husband and wife. The original plaintiffs were Ben and Sarah Gruwell and their four children. The original defendants were the eight children of Ben Gruwell by a former marriage. With these defendants were joined the original grantors in the deed of 1903, who claimed no interest in the subject-matter of the controversy. The granting and habendum clauses of the deed in question were as follows:
It was charged in the petition that there was a mistake in the deed, in that it was intended to provide therein an • estate for life to Ben and Sarah and to the survivor of them, and that the fee in remainder should go to the common heirs of Ben and Sarah, being their four coplaintiffs, to the exclusion of the other heirs of Ben Gruwell. The de fendant heirs answered, denying the alleged mistake and resisting reformation, and alleged their interest in the property in- accord with the terms of the deed as written. This was the state of the pleadings for the first two years of the pendency of the suit in the district court. Pending the suit, in May, 1917, Ben Gruwell died, leaving Sarah surviving him. Thereupon, Sarah filed a substituted petition, wherein she abandoned the claim of mistake in the deed and the prayer for reformation, and wherein she alleged herself, as the survivor of her husband, to be the owner in fee simple of the land in question, under and by virtue of the deed as previously set forth. In making this latter contention, she invoked the operation of the Rule in Shelley’s Case. Her substituted petition was directed, not only against the defendants, but was presented, also, as a cross-petition against her four coplaintiffs, being her children. The four coplain
No account appears to have been taken, at the trial, of the pleading of the coplaintiff heirs. They were represented by the same counsel as the plaintiff Sarah, and their claims in hostility to the plaintiff Sarah which were put forward in their pleading do not seem to have been pressed upon the attention of the trial court. The inference naturally arises that they were content with the awarding of title to their mother, and that they were willing to await the course of nature, and take title by inheritance under her. After decree, and before this appeal was taken, the plaintiff Sarah died, and her administrator has been substituted in her stead. Her coplaintiffs, being her only heirs, are the only parties interested in sustaining the decree. They cannot sustain it without waiving their previous claims, adverse to their mother. They have not, in fact, pressed their adverse claims in argument here. We shall assume, there
1. Deeds : construction : estates and interests conveyed : qualification by habendum clause. We have already set forth the parts of the deed material for our consideration. It contains a granting and a habendum clause. The granting clause, standing alone, was sufficient in form to have conferred upon the grantees the full fee title. But its effect in this respect was presumptive only, and not conclusive. It contained no words of inheritance, and was, therefore, subject to qualification by other language contained in the deed. Husted v. Rollins, 156 Iowa 546. Qualification is found accordingly in the habendum clause. This habendum clause in terms limited the title of the grantees named in the granting clause.
The argument for the plaintiffs rests upon two propositions: (1) That the life tenants took their life estate, not as tenants in common, but as joint tenants, and that Sarah Gruwell, as the survivor of them, took the title of both. (2) That, because the habendum clause purported to pass the remainder in fee to the heirs of the life tenants, therefore the legal effect of the deed, under the Rule in Shelley’s Case, was to confer the full legal title upon such life tenants, and upon Sarah as the survivor.
If either of the foregoing propositions prove untenable, the whole structure of the case for plaintiffs falls with it.
2. deeds: construction: es-states and interests conyeyea: joint tenancy. First: Can it be said that the habendum clause discloses an intent to create a joint tenancy, and not a tenancy in common? Under Section 2928 of the Code, conveyances made to two or more in their own right create a tenancy in common, unless a contrary intent is expressed. Under the grant-./a o ing clause alone, a tenancy in common ° ’ •' would be clearly implied. Is there any
“Above premises are to go and be held by either Sarah or Ben Gruwell, whichever survives the other, and be held by said survivor undivided until the death of said survivor, when title to said land is to be vested in the legal heirs of above grantees as the law directs.”
Not only does the clause in question fail to disclose affirmatively an intent to create a joint tenancy, but, by its fair implications, it tends to negative such intent. The provision that the premises “be held by said survivor undivided until the death of said survivor” is a finger of warning and restraint against any premature attempt by the heirs of either tenant to enter into the enjoyment of their succession before the death of both. Furthermore, the prominent characteristic of a joint tenancy, as distinguished from a tenancy in common, is that the survivor takes the whole right of property of both. In this case, if Ben Gruwell had only a life estate in the premises, his death terminated his estate, and no right of property survived him to anyone. There was nothing for a surviving joint tenant to take.
3. dbbds : con-,®1;,1? 1“ ®bel" Indeed, if we were to find that the deed does disclose an intent to create a joint tenancy, even then the Shelley Rule would not be available to carry the fee title to the plaintiff Sarah. True, the deed, by its terms, provides that the remainder shall go to the heirs of the life tenants after the death of the survivor, “as the law directs.” The most that can be said for this provision is that the property in fee should be divided between the heirs of the cotenants, and in the same proportions which they would receive if they were to take by inheritance from each co-tenant. Concede, only for the sake of the argument, that, if all the heirs of each cotenant were common to both coten
Of course, the real objective of such rule is not to work advantage or disadvantage upon the first or a future taker, but to lodge in the present tenure the power of alien a lion. For, though a taker take a title in “fee simple forever,” inexorable Nature limits his enjoyment to an estate for life; and, in the absence of alienation, the “fee simple forever” finds its successive beneficiaries down the endless line of inheritance.
It will serve no useful purpose to enter into a discussion of the Shelley Eule. It has been fully discussed in our previous cases: Doyle v. Andis, 127 Iowa 36, 66; Kepler v. Larson, 131 Iowa 438; Westcott v. Meeker, 144 Iowa 311; Westcott v. Binford, 104 Iowa 645; Harlan v. Manington, 152 Iowa 707, 715; Daniels v. Dingman, 140 Iowa 386, 387;
4. Deeds : construction : estates and interests conveyed : determination of interests Construing the deed under consideration according to its terms, it purports either: (1) To confer a life estate •upon both grantees, as tenants in common, for the term of the life of the survivor, with a remainder over to the heirs of Ben, as to the undivided one half, and to the heirs of Sarah, as to the other one half; or (2) to confer upon both grantees, as tenants in common, a life estate during the life of both, and upon the survivor, as exclusive tenant, a life estate for the remaining term of her life, with the remainder over to the heirs of Ben, as to one undivided one half, and to the heirs of Sarah, as to the other undivided one half; or (3) to confer upon both grantees, as tenants in common, a fee title, subject only to a life estate to the survivor in the undivided one half of her predeceased cotenant.
Upon either construction, the result in this case would be the same, and we need not choose between them. If either construction 1 or 2 should be adopted, then the Rule in Shelley’s Case would operate to cast the fee title upon the grantees, as tenants in common. If construction 3 be adopted, then the same title is conferred by the express terms of the deed. It is immaterial to the present parties before the court whether their ancestors took title under the operation of the Shelley Rule or under the strict terms of the deed.
It follows that Ben Gruwell died seized of an undivided one half of the property, subject to the life estate of his surviving widow. The surviving widow ivas also entitled to take her distributive share in such undivided one half. At the time of her death, therefore, Sarah Gruwell was entitled to take an undivided two thirds of the property. The final result is that the twelve heirs of Ben take one third of
In holding that the plaintiff Sarah took the full title to the property, the trial court erred. The decree is accordingly — Reversed.