WILLIAMS v. HEDRICK et al., 96 F. 657

WOODS, Circuit Judge, after making the foregoing statement, delivered the opinion of the court. The contention of the appellant that the deed of Jesse Hedrick to Joseph Hedrick created in the latter a title in fee simple to the land described is not sound.

By the common law a grant to a person named, without the addition of words of'inheritance, carries only a life estate; and while it was provided by the statute that it shall not be necessary to use the words, ‘‘heirs and assigns of the grantee,” to create in the grantee an estate of inheritance, that expression is itself qualified by the added words, “aud if it be the intention of the grantor to convey any lesser estate, it shall be so expressed in the deed.” Under this provision, the very elaborate discussion of common-law doctrines and decisions, to the effect that a granting clause-must be construed by itself, and that the estate thereby conveyed cannot be cut dotvn by subsequent terms of the instrument, is-irrelevant.

By force of the statute the intention of the grantor of land will be sought, in accordance with the ordinary and reasonable rule-for the consiiuction and

interpretation of writings, in all that is to be found within the four corners of the deed, except when the rule in Bhelley’s Duse is applied. That this deed was intended to give Joseph Hedrick only a life estate could not have been made more certain, and the expression of that intention, as it is found iu the instrument, must Ik1 given effect. See Prior v. Quackenbush, 29 Ind. 475. The rule in Shelley's Case, when applicable, it has been held, will be enforced notwithstanding the statute, though the effect be to override the evident intention of tiie grantor (Ridgeway v.

Lanphear, 99 Ind. 251), but that rule cannot be invoked here. See Burns v. Weesner, 134 Ind. 412, 34 N. E. 10, Doren v. Gillum, 136 Ind. 134, 35 N. E. 1101, and McIlhinny v. McIlhinny, 137 Ind. 411, 37 N. E. 147, by which King v. Rea, 56 Ind. 1, and Fletcher v. Fletcher, 88 Ind. 418, were overruled. There being in existence no children of Joseph Hedrick, the remainder in' fee is to be regarded as vested in Lawrence H. Hed-rick, subject to devestment upon the death of Joseph Hedrick with surviving child or children. In addition to the cases cited above, see Granger v. Granger, 147 Ind. 95, 44 N. E. 189, and 46 N.

E. 80; Kilgore v. Kilgore, 127 Ind. 276, 26 N. E. 56; Wilson v. White, 109 N. Y. 59, 15 N. E. 749. In the last case it was said: “The right of the contingent remainder-men constituted an estate in lands of which they could not be devested during the existence of the life estate, except by legal proceedings to which they were parties.” It follows that Lawrence H. Hedrick had a vested estate or interest in the lands here in dispute, for 'the protection of which he was at liberty to prosecute any appropriate action or suit.

It also follows that he is not bound nor his interest cut off by the decree of foreclosure of the appellant’s tax lien and the sale thereunder of the land to Voris.- If children should be born to Joseph Hedrick, they would doubtless be bound, on the theory of representation, by the decree rendered against him (McArthur v. Scott, 113 U. S. 340, 5 Sup. Ct. 652; Bank v. Taylor, 9 U. S. App. 406, 449, et seq., 4 C. C. A. 55, and 53 Fed. 854); but Lawrence Hedrick and his interest could be affected only by a judgment or decree to which he was a party.

He was a defendant in the suit to foreclose the tax lien, but was not served with process, and as against him the suit was formally dismissed.

Another important consequence must be recognized: While the lien which was being foreclosed in that suit was a lien upon the entire property, and superior to all interests or estates of whatever character, the decree, taken, as it was, against the owner of a life estate only, extended to no more than that interest, and by virtue of the sale Voris acquired, and was able to convey to Williams, only the life estate of Joseph Hedrick; and, the bid having been for the whole amount of the decree, all other interests in the property were released, and the only harm done or possible to Lawrence Hedrick is the cloud upon his title by reason of the fact that the sale and deed by the sheriff purport to be of the land in fee, and not simply of the life estate of Joseph Hedrick.

In this particular the relief granted should haver gone only to the extent of adjudging the plaintiff’s title and declaring it unaffected by the sale under the decree of foreclosure in favor of Williams. The plaintiff, after the extinguishment of the tax lien by the sale of the life estate, was under no necessity, and therefore had no right, to redeem from the sale in order to protect his own interest.

The ditch lien was one which it was the duty of the life tenant to discharge, and, if not already extinguished by the payment of the proper sum by Williams to the clerk, it was proper to provide for the extinguishment of it out of the rents in the registry of the court. The mortgage to the First National Bank of Danville was limited in terms to the life estate of Joseph- Hedrick, and the 'foreclosure thereof, and the sale and conveyance to the bank, involved no possible harm to the contingent estate in remainder.

What was the effect of Williams’ attempt to redeem from the sale to English, trustee, and of English's attempt to redeem from him, we are not called upon to decide. In so far as it was adjudged that the plaintiff had a right to redeem from the sale made to Voris, and to receive the rents or profits of the land during the life of Joseph Hedrick, the decree was erroneous. The decree is therefore reversed, and the cause remanded, with direction to enter a decree in conformity with this opinion.