In 1976 a producing oil and gas well was completed on a 76-acre tract of land in Columbia county. The six appellants, claiming an undivided two-thirds contingent interest in the land under the peculiar wording of a deed executed in 1920, brought this suit to protect their contingent interest in the royalties to be derived from the well. Both sides filed motions for summary judgment. The chancellor did not find it necessary to construe the 1920 deed, because he found the appellants’ claims to be barred by a 1928 foreclosure suit and by limitations and laches. He therefore granted the defendants’ motion for summary judgment. We hold that the chancellor erred in entering the summary judgment, which makes it also necessary for us to construe the 1920 deed.
In 1918 the land was owned by M. J. Lecroy, who mortgaged it to W. S. McKissack to secure a $550 debt. Lecroy died in about 1919, survived by his widow, Maude, an adult son, Gus, and two adult daughters, Carrie Dickson and Omie Lecroy. In 1920 the widow and the two daughters conveyed their interest to Gus and his wife Mattie, the granting clause containing this language:
... do hereby grant, bargain, sell, and convey unto the said Gus Lecroy, and Mattie Lecroy, and unto their heirs and assigns, forever, if Gus and Mattie Lecroy have no heirs then to the heirs of Carrie Dickson, and Omie Lecroy, the following lands . . .
The habendum, covenants of warranty, and release of dower and homestead were in the usual form.
In 1928 McKissack brought suit to foreclose the mortgage. The widow and three children were the defendants. The complaint alleged, as a basis for a personal judgment, that Gus had assumed the payment of the mortgage indebtedness as the consideration for the 1920 deed. The foreclosure decree also recited that the consideration for the deed to Gus had been that he assume the payment of the note secured by the mortgage. The decree, in the usual form, included a personal judgment against Gus. McKissack bought the land at the sale and received a commissioner’s deed to it. About ten months later he sold the land back to Gus Lecroy for a recited consideration of $698. We may surmise that the land is unimproved, because the motions for summary judgment make no reference to actual possession by anyone.
Omie died in 1945, survived by one son, who is a plaintiff. Carrie died in 1967, survived by five children, who are the other plaintiffs. Gus and Mattie had no children. Gus died in 1972. Mattie is still living and in 1976, at the age of 85, adopted a daughter, the defendant Opal Renfro. As we have said, oil and gas were discovered on the land in 1976. This suit was filed later that year. There are 15 defendants in all, but, except for Opal Renfro and Mattie Lecroy, the abstract does not disclose what interest they assert in the property.
We consider first the effect of the 1928 foreclosure decree. Of course, as far as the mortgage was concerned, that decree extinguished the defendants’ equity of redemption. But Gus Lecroy had obtained his sisters’ two-thirds interest by agreeing to pay the mortgage debt. The grantors did not convey all their interest in the land, because the granting clause created an estate in their “heirs” if Gus died without “heirs.” Consequently, when Gus repurchased the land from McKissack soon after the foreclosure sale, his purchase amounted under familiar principles of law to a redemption in favor of his sisters and their “heirs.” See Slinkard v. Caldwell, 208 Ark. 398, 186 S.W. 2d 431 (1945); Lewis v. Bush, 171 Ark. 192, 283 S.W. 377 (1926); and other similar cases. Thus the effect of Gus’s redemption was to erase the foreclosure proceedings, leaving the parties in their original positions with respect to the title. We note in passing that the essential facts were all a matter of record and therefore in the chain of title.
We turn next to the interpretation of the 1920 deed, which conveyed the land to Gus and Mattie and their heirs and assigns forever, [but] “if Gus and Mattie have no heirs then to the heirs of Carrie Dickson, and Omie Lecroy.” It is our rule to construe deeds as a whole, giving effect if possible to all the language in our effort to carry out the intention of the parties. Carter Oil Co. v. Weil, 209 Ark. 653, 192 S.W. 2d 215 (1946). Here the word “heirs” was plainly intended to mean children or descendants, as it has often been construed in similar situations. Dyer v. Lane, 202 Ark. 571, 151 S.W. 2d 678 (1941); Powell v. Hayes, 176 Ark. 660, 3 S.W. 2d 974 (1928); Robinson v. Bishop, 23 Ark. 378 (1861); Restatement, Property, § 267, Comment c (1940). As we reasoned about an analogous problem in Dyer v. Lane, supra, the statement that if Gus died without “heirs” the property should go to his sisters’ heirs would be meaningless if the word “heirs” did not mean children, because Gus could not die without heirs in the broader sense if his sisters or their descendants were living.
Two minor arguments by the appellees do not require extended discussion. The rule against perpetuities was not applicable to the 1920 deed. All five parties to the deed must be included as the measuring lives; so the title had to vest at the death of the last survivor, well within the time allowed by the rule. Restatement, Property, § 374 (1944). Mattie’s adopted daughter cannot qualify as an “heir” within the intent of the 1920 deed. For one thing, an adopted child is not a bodily heir within the meaning of a prior conveyance. Nuckolls v. Mantooth, 234 Ark. 64, 350 S.W. 2d 512 (1961). For another, the deed, as we construe it, was to Gus and Mattie and their children, not to the children of either of them separately.
Finally, the defendants’ motion for summary judgment states no facts, other than the ones we have narrated, to show that the plaintiffs are barred by limitations or laches. We need not determine whether the plaintiffs’ estate is a contingent remainder or an executory interest, for in either case it did not become a possessory estate at least until Gus’s death, if not until Mattie’s. See Restatement, Property, § 267, Comment a; Simes & Smith, Future Interests, § 222 (2d ed., 1956); and compare Horsley v. Hilburn, 44 Ark. 458 (1884), and later cases treating contingent remainders in Arkansas.
The appellants, not having a possessory estate, could not have asserted any cause of action so long as Gus was living. Ordinarily a remainderman is not affected by adverse possession during the lifetime of the life tenant, because he has no right of entry. Smith v. Kappler, 220 Ark. 10, 245 S.W. 2d 809 (1952). Here the case is even stronger, because the identity of the “heirs” of Carrie and Omie could not be determined at least until Gus’s death, if not Mattie’s. The defendants’ motion for summary judgment asserts no facts suggesting that any basis for a finding of limitations or laches arose after Gus’s death in 1972. That question therefore remains open, for the appellants are mistaken in arguing that when both sides file motions for summary judgment they impliedly agree that there is no issue of fact in the case. Wood v. Lathrop, 249 Ark. 376, 459 S.W. 2d 808 (1970). This opinion merely disposes of issues of law raised by the trial court’s action in granting the defendants’ motion for summary judgment. The court expresses no opinion upon issues of fact that may be raised by either party at a trial on the merits.
Reversed and remanded for further proceedings.
Holt, J., not participating. Special Justice Jimason J. Daggett and Byrd and Hickman, JJ., dissent.