This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Originally, under the feudal system, land being granted by the lord as strictly in compensation for personal services, the grant was for no longer than the life of the grantee. Later the grant was extended to the sons and other issue of the grantee, under the designation of "heirs," they being entitled to stand in the place of their ancestor after his death, if mentioned in the grant, but only then. Thereafter the word "heirs," when used in a conveyance to a man "and his heirs," came to include collateral as well as lineal heirs, and finally ceased, when thus used, to designate the person or persons to take in place of the original grantee, but was regarded as merely indicating that such grantee took an estate which would pass to his heirs, or the heirs of any one to whom he aliened it: that is, it ceased to be a word of purchase, and became one of limitation.5 The original rule, however, requiring the word "heirs" to be used, in a conveyance inter vivos, in order that an estate descending to his heirs should pass to the grantee, though thus originating in reasons connected with the feudal system, has survived to the present day, and is generally in force when not changed by statute.6 Accordingly, conveyances to a man by name, without more, or to him 'forever," or to him "and his assigns forever," have been held to give him but a life estate;7 and the same effect has been given to conveyances to one and "his children," "his executors and assigns," or "his successors and assigns," or "in fee simple."8 The word "heirs" may, however, be incorporated in the conveyance by reference to another
1. 1 Pollock & Maitland, Hist. Eng. Law 213; Challis, Real Prop. 218. See ante, Sec. 6.
2. 2 Blackst. Comm. 104; Jecko v. Taussig, 45 Mo. 167; Haynes v. Bourn, 42 Vt. 686.
3. 2 Blackst. Comm. 105; Challis, Real Prop. 33, 59.
4. Haynes v. Bourn, 42 Vt. 686. See, as to holding of the state, ante Sec. 13.
5. 2 Blackst. Comm. 55, 107; Williams, Real Prop. (21st Ed.) G7; Leake, Prop. in Land 32; Co. Litt. 26Gb, Butler's note; Cole v. Lake Co., 54 N. H. 242, 279.
6. See cases cited post, this section note 18.
7. Litt. Sec. 1; Co. Litt. 8b; 2 Blackst. Comm. 107; Curtis v. Gardner, 13 Mete. (Mass.) 457.
8. Clearwater v. Rose, 1 Blackf. (Ind.) 137; Adams v. Ross, 30 N. J. L. 505; Miles' Lessee v. Fisher, 10 Ohio, 1; Taylor v. Cleary, 29 Grat. (Va.) 448.
It is said by Coke that a conveyance to a man "or his heirs" is insufficient to convey a fee (Co. Litt. 8b), but it has since been held otherwise (White v. Craw ford, 10 Mass. 183). See Wright v. Wright, 1 Ves. Sr. 409, per Lord Hardwicke; Ortmayer v. Elcock, 225 111. 342, 80 N. E. 339.
The use of the word "heir" instead of "heirs" has been said to be sufficient. 4 Kent, Comm. 5, note a; Co. Litt. 8b, Hargrave's note; King v. King's Adm'r, 12 Ohio, 390, 472. But see Challis. Real Prop. 221.
It is sufficient if the word "heirs" appears in the habendum. Lancaster Bank v. Myley, 13 Pa. St. 544; Havens v. Sea-Shore Land Co., 47 N. J. Eq. 365, 20 Atl. 497. See post Sec. 437.
The insertion of the word "heirs" in the warranty clause has been regarded as insufficient, it being a rule of the common law that a covenant or warranty cannot enlarge an estate. Co. Litt. 385b; Adams v. Ross, 30 N. J. L. 505; Jordan v. Neece, 36 S. C. 295, 31 Am. St. Rep. 869, 15 S. E.
[Sec.21 instrument,9 and a court of equity will reform the conveyance by inserting the word "heirs," if this word is omitted by mistake, under the same circumstances as will justify a reformation of an instrument in other cases, but not as against bona fide purchasers for value.10
- Exceptions to general rule. There are certain exceptions, or apparent exceptions, to the general rule recognized at common law, among which are cases in which one joint tenant or coparcener releases to the other, or where one cotenant grants a rent to another, in order to equalize a partition.11 Also in grants of land to corporations aggregate, the word "heirs" is unnecessary, as is also the word "successors," since. in judgment of law, the corporation never dies, and accordingly a grant for its life is in effect a grant of an estate forever.12 The rule does not apply to an exception in a deed in favor of the grantor,13 for the reason that an exception does not involve the creation of a right.14
9. Co. Litt. 9b; 4 Kent, Comm. 5; Leake, Prop. in Land, 156; Challis, Real Prop. 222; Lemon v. Graham, 131 Pa. St. 447, 6 L. R. A. 663, 19 Atl. 48; Mercier v. Missouri River, Ft. S. & G. R. Co., 54 Mo. 506; Evans v. Brady, 79 Md. 142, 28 Atl. 1061.
10. Chamberlain v. Thompson 10 Conn. 243, 26 Am. Dec. 390; Nicholson v. Caress, 59 Ind. 39; McMillan v. Fish, 29 N. J. Eq. 610; Vickers v. Leigh, 104 N. C. 248, 10 S. E. 308; Leitensdorfer v. Delphy, 15 Mo. 161, 55 Am. Dec. 137; Austin v. Hunter, 85 S. C. 472, 67 S. E. 734.
11. Co. Litt. 9b; 4 Kent, Comm. 7; Challis, Real Prop. 223.
See Rector v. Waugh, 17 Mo. 13, 57 Am. Dec. 251.
12. Co. Litt. 9b; 2 Blackst. Comm. 109; 4 Kent, Comm. 7; Wilcox v. Wheeler, 47 N. H. 488; Congregational Society of Halifax v. Stark, 34 Vt. 243; Wilkes-Barre v. Wyoming Historical & Geological Society, 134 Pa. St. 616, 19 Atl. 809. The word "successors" is, however, ordinarily used, and it is necessary in case of a grant to a corporation sole. Co. Litt. 9b; 2 Blackst. Comm. 109; Overseers of Poor v. Sears, 22 Pick. (Mass.) 126.
13. Engel v. Ayer, 85 Me. 448 27 Atl. 352; Wood v. Boyd, 145 Mass. 176, 13 N. E. 476; Emerson v. Mooney, 50 N. H. 315. As to the necessity of the use of the word "heirs" in reservations, see post Sec. 362.
14. See post Sec. 436.
In this country, the requirement of the word "heirs" has never been applied to conveyances to trustees, the rule being that, if a fee-simple estate in a trustee is necessary in order to enable him to carry out the purposes of the trust, he will be given such an estate, though the conveyance is otherwise insufficient to pass such an estate; and, conversely, if a less estate than a fee simple in the trustees is sufficient for the purposes of the trust, his estate will be regarded as so limited, in spite of the language of the instrument.14a Accordingly, a trustee has a fee-simple estate, without the use of the word "heirs," when he is given a power of sale;15 while he may have merely a chattel interest, though the word "heirs" is used, if he is merely to hold the estate for a short time to pay debts and legacies.16