Montgomery v. Sturdivant

By the Court, Temple, J.: On the 12th day of March, 1864, Bridget M. Evoy, for an expressed consideration of one thousand dollars, conveyed to Z. Montgomery, and Ellen, his wife (the said Ellen being the daughter of the grantor), a tract of land. The premises of the deed contain no words of inheritance, but simply grant, bargain, convey, and confirm to parties of the second part a specific tract of land. The habendum is as follows:

“ To have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said parties of the second part, and to the longest liver of them, for and during their natural lives and the natural life of such longest liver, remainder thereafter to the issue and heirs of their two bodies, begotten and to be begotten, and the heirs of such issue forever, to and for the use and benefit of such longest liver of them, for and during the life of such longest liver, and thereafter to and for the use and benefit of the said issue and heirs of their two bodies, begotten and to be begotten, in equal shares, as tenants in common, the issue, if any, of any child of their bodies who may die before the death of the longest liver of said parties of the second part, to take the share and portion of such deceased child.”

In November, 1869, Montgomery and wife made a valid contract, by which they agreed to sell to defendant a portion of this land. In pursuance of his contract they after-wards tendered a deed to the defendant, and demanded a performance on his part, which was refused on the ground that plaintiffs were not the owners of the land in fee simple, the deed from Mrs. Evoy conveying to them a life estate only. This action is brought to compel defendant to perform the contract, and is resisted on the ground above stated.

It is first contended by plaintiffs that under our statute the [296]granting part of the deed conveyed to them an estate in fee simple, and that the limitation in the habendum is repugnant to the grant, and therefore void. The section of the statute referred to is as follows:

“ Section 2. The term heirs, or other words of inheritaüce, shall not be necessary to create or convey an estate in fee simple; and every conveyance of any real estate hereafter executed shall pass all the estate of the grantor, unless the intent to pass a less estate shall appear by express terms, or be necessarily implied in the terms of the grant.”