Willis v. Robinson ( 1922 )

These are suits in ejectment and to quiet title, brought in the Circuit Court of Grundy County. The pleadings and evidence are the same in all of these cases, except that each involves different tracts of land. It was stipulated that the second and third cases should be heard and submitted with the first, the decision in the latter to control in the disposition of the other two, both in the trial court and upon appeal.

On February 23, 1866, Thomas Willis and Elizabeth, his wife, were the owners in fee of all of the land described in the three suits. On that day they conveyed the same by warranty deed to Henry Willis and William T. Willis. The language of the conveyance, excepting the description of the land and the acknowledgment and signatures of the grantors, is as follows:

"Know all men by these presents, that we, Thomas Willis and Elizabeth Willis, his wife, of the County of Franklin in the State of Ohio, in consideration of the sum of two thousand dollars, to us in hand paid by Henry Willis and William T. Willis of the County of Grundy in the State of Missouri, have bargained and sold and do hereby grant, bargain, sell and convey unto the said Henry Willis and William T. Willis, the following described premises, situated in County of Grundy in the State of Missouri and bounded and described as follows, to-wit:" Then follows a description of the land, which is omitted.

"Reference may be had to a deed from Wm. Willis and wife to the said Thomas Willis, dated June 9, 1857, duly recorded in the Recorder's office of said County of Grundy in Deed Book — page 221.

"To the said Henry Willis, until the said William T. Willis shall be of lawful age, or until his death, if he shall die before the said William T. Willis.

"And to the said William T. Willis for and during his natural life, and in the case the said William T. Willis should die as a minor, the said Henry Willis, if he survives him, shall have the free and undisturbed use of the conveyed premises for and during his natural life.

"The intent and purpose of this conveyance being to vest a life estate in and to said premises, partly in the said Henry Willis and partly in the said William T. Willis, and the remainder of said estate in the heirs of the said Henry Willis or the heirs of the said William T. Willis, or their heirs and assigns of such heirs forever.

"To have and to hold said premises with their appurtenances to the said Henry Willis and William T. Willis as above mentioned, and the residue, remainder and reversions therein and thereof to the heirs of the same respectively and their heirs and assigns of such heirs forever.

"And the said Thomas Willis and wife do hereby covenant with the said Henry Willis and William T. Willis, their heirs and assigns of such heirs that they are lawfully seized of the premises aforesaid, and that the premises are free and clear from all encumbrances whatsoever, and that they will forever warrant and defend the same with the appurtenances unto the said Henry Willis and William T. Willis, their heirs or assigns of such heirs, against the lawful claims of all persons whomsoever.

"And the said Elizabeth Willis, wife of the said Thomas Willis, doth hereby release and convey to the said Henry Willis and William T. Willis, their heirs and assigns of such heirs forever, her right of dower and dower estate in said premises."

Thomas Willis and his wife are the common source of title, and a construction of their deed constitutes the vexed question in this controversy.

Henry Willis died in November, 1898; William T. Willis, in January, 1918.

The plaintiffs are the children of Henry Willis. They base their claim to title on the deed from Thomas Willis and wife and as grantees and purchasers under and by virtue of said deed.

All of the defendants are the children or grandchildren of William T. Willis, except Lesley P. Robinson and Homer Peery, who are in possession of the land and claim title thereto by mesne conveyances from the heirs of William T. Willis and through court proceedings.

I. Under a cardinal rule of interpretation we are to look to this instrument itself to ascertain its meaning. Thus considered, if every part of the deed be viewed in the light of the circumstances under which it was made, theInterpretation. intent and purpose of the maker ought not to be difficult of determination. In the application of this rule, if the deed bears on its face evidence of a lack of knowledge on the part of the draftsman of the recognized use and well defined meaning of any words employed therein, their unskillful source and inaccurate use will be recognized, and if possible such a construction will be given to the entire instrument as will best effect the dominant purpose of the maker. [Tygard v. Hartwell, 204 Mo. l.c. 205; Aldridge v. Aldridge, 202 Mo. l.c. 572; Shepherd v. Anderson, 192 S.W. (Mo.) 952.] This accords with common sense and will best serve the ends of justice.

It is horn-book law that the parts of a deed, as anciently considered, comprised the premises, the habendum, thetenendum, the reddendum, the warranty, and testimonium. [Coke Litt. 171; 2 Bl. Com. 295.] While these terms are helpful in determining the relative importance and prevailing effect of one of these over the others, under the language employed in the instrument to be construed, we find in modern cases, under more rational rules of interpretation, a pronounced disposition to so construe the entire deed as to cause form to yield to the evident intention or purpose of the maker. Irrespective, therefore, of the ancient terminology, the necessary constituents of a valid deed are held to be the names of the parties, the consideration, a description of the property, the interest or quantity conveyed and the conditions, reservations or covenants, if any there be. In short, if the words employed indicate an intention to transfer the claim, interest or estate of the grantor, this will be sufficient to constitute a deed (Evenson v. Webster, 3 S.D. 382, 44 Am. St. 802); or as we said more specifically in Wimpey v. Ledford, 177 S.W. (Mo.) 302, the essentials of a conveyance of real estate are competent parties, sufficient subject-matter or property conveyed, a valid or good consideration, the use of a written or printed form, proper words of conveyance showing an intent to convey and the formal signing, execution and delivery to the grantee. Present these requisites, we look to the entire instrument to determine the estate or interest created. [DePaige v. Douglas, 234 Mo. 78; Waldemeyer v. Loebig, 222 Mo. 540; Stoepler v. Silberberg, 220 Mo. 258; Hubbard v. Whitehead,221 Mo. 672.]

II. Before construing this deed as a whole under the well-established rule, above referred to, it may not be amiss, by way of contrast, to analyze its provisions severally with a view to determining whether this method of interpretation,Different which seems to have been adopted in part in theClauses. presentation of this case, will enable us in a fair and reasonable manner to ascertain the meaning and purpose of the grantor, and, as a consequence, the character of the interests or estates created.

Standing alone the granting clause creates an estate in fee in Henry Willis and William T. Willis as tenants in common. [Sec. 2180, R.S. 1919; Waldemeyer v. Loebig, 220 Mo. l.c. 552.]

The succeeding clause, however, without more, creates an estate for years in Henry Willis or for life, terminable, in the first instance, upon William T. Willis reaching his majority, and, in the second, upon the latter's death before that of the former.

The next clause, when isolated from the others, creates a life estate in William T. Willis, and if he dies during his minority, Henry Willis is given the free and undisturbed use of the premises during his life.

The meaning of the deed as deduced from the foregoing analysis may be summarized as follows: The creation of a fee; the creation of an estate for years or a life estate; the creation of a life estate in another, but upon his death during minority, the one first invested with a life estate is to have the entire use of the premises during his life. The correctness of these conclusions as to the character of the estates created cannot be gainsaid under this method of analysis. It is evident, however, from the inconsistencies, not to say absurdities, that follow this method, that it is not the correct one; and, hence, does not aid, much less enable, us to ascertain the true intention of the grantor.

III. By a construction of the deed, however, not by piecemeal but as a whole, in conformity with the rule crystalized in many precedents and found, from long experience, best adapted to uniform application, we are enabled to remove whatever seeming inconsistencies and incongruities with which we are confronted in pursuing a different course.

Happily, for clearness of construction and a satisfactory conclusion, it does not become necessary to resort to other than the plain words of the deed, following the clauses above cited, to enable us to determine the meaning of theIntention. instrument and the consequent intention of the grantor. What are these words defining this meaning and declaring this intent? They are that the intent and purpose of the conveyance is to vest a life estate in and to said premises partly in Henry Willis and partly in William T. Willis, and the remainder in the heirs of Henry Willis or the heirs of William T. Willis, or their heirs and assigns forever. Whatever other misuse of words or inaccuracies of expression may have characterized the verbiage of the draftsman of this deed, they are not found in this clause declaratory of the grantor's intention. Thus construed, the seeming fee created by a reading alone of the granting clause is reduced to a life estate in the two grantees, remainder over in fee to their heirs. The clause beginning with the words "to the said Henry Willis" until the happening of the condition stated, must, when construed in connection with the clause declaratory of the grantor's intent and purpose, be held to create a life estate in Henry Willis with a right reserved in him to the exclusive use of the premises until William T. Willis reached his majority, or in the event of the latter's death during the life of the former. This construction finds support not only in the clause expressly creating the estates in these two parties, but in that beginning with the words "and the said William T. Willis," which, after expressly creating a life estate in him, provides, as in the clause creating the life estate in Henry Willis, that the latter shall have the entire use of the premises during his life should William T. Willis die during his minority.

We do not attach much importance to the use of the word "or" in the clause creating the estates in the grantees following the creation of the remainder over in the heirs of Henry Willis, as well as a like use of the same in the heirs of William T. Willis. Such use was word following the creation of theOr for And. remainder evidently a mistake on the part of the draftsman, who, while he encountered no difficulty in defining the estates created by the grantor, was in other respects attempting to follow a prescribed form and through inadvertence used the word "or" instead of the word "and." We are at least authorized in the face of the clearly defined purpose of the deed taken as a whole to thus construe the word misused. There is no lack of precedents to sustain this conclusion. Where the question of intent is under consideration and it is evident from the entire context and circumstances of the instrument, "or" may be construed as "and." [29 Cyc. p. 1505, B, 3, cases under notes 27 and 28; Chicago, B. Q.R. Co. v. Bartlett,120 Ill. 603, 11 N.E. 867.]

Viewed from another vantage, it appears from this instrument that at the time it was made Henry Willis had reached his majority and that William T. Willis was a minor. The use of the word "or," if not an error, was simply an attempt to vest the remainder in the heirs of one of the grantees if the other should die childless.

Under any construction, the use of the last phrase in the clause defining the estates created adds force to our conclusion as to the nature of these estates wherein it provides that the remainders shall vest in "their heirs and assigns of such heirs forever," referring beyond question to the heirs, if such there be, of both grantees.

Furthermore, we find nothing in the succeeding clause of the deed beginning with the words "to have and to hold the premises with their appurtenances to the said Henry Willis and William T. Willis," etc., which in any way runs counter to the construction we have given this deed. The foregoing quotation,Habendum. which under the old nomenclature constitutes the introductory phrase to the habendum, further provides, in effect, that the residue, remainder and reversions in said lands shall vest in the heirs of the grantees, respectively, and their heirs and assigns forever. This clause is in the usual form except in the use of the word "respectively," and from its own words cannot be construed other than as in harmony with the other portions of the deed, declaratory of a purpose to create life estates in the grantees and in the creation of such estates. We are not without authority in this jurisdiction as to the use, purpose and proper construction of this clause. We said in Utter v. Sidman, 170 Mo. 284: "If there be a doubt as to the intention of the parties, the habendum clause, which performs the office of defining, qualifying and controlling the granting clause when not in conflict with it, is an important factor in arriving at such intent." The use of the word "respectively" in this clause does not mean, as has been contended, that "one set of the heirs may be set over against the other," but it does mean "as relating to each," or "as each refers or belongs to each in their order." Illustrative of the correctness of these definitions is the ruling of the Supreme Court of Maine in Messer v. Jones,88 Me. 349, in which it is held that: "Respectively as used in the Act of 1887 providing that in certain cases a child and its issue should inherit from its parents respectively, and from their lineal and collateral kindred, conveys the idea that such child shall inherit in each case from the parent or parents of whom the act has declared him to be an heir and from the kindred of such parent or parents. That the word was intended to be used in harmony with these definitions is evident from the further language of the clause, which provides not that the residue, remainder and reversions are to the heirs of either of the grantees but to ``their heirs and assigns of such heirs forever.'"

In addition, the covenants of the grantor further sustain the conclusion we have reached in regard to his intention in making this deed. This covenant is not made to one but to both of the grantees, their heirs, assigns, etc.; and likewise theOther title is warranted to both of them and their heirs,Clauses. etc.

Even the relinquishment of the dower of the wife of the grantor is made to both of the grantees and their heirs, etc. This, if further light is necessary, is illuminative of the meaning of the deed in harmony with what has heretofore been said in regard to same.

IV. It is contended that where a deed is fairly susceptible of different constructions, the court may ascertain the situation and circumstances of the parties in determining the meaning of the language used. Under our ruling as to theSituation manifest meaning of the deed, there is no ground forof Parties. a resort to this alternative.

A brief statement of the facts, however, as disclosed by the record, will not, we believe, but add probative force to our construction of the deed. The grantor sold to the grantee Henry Willis the land described, for which the latter paid him two thousand dollars. These parties were brothers. Henry Willis was then fifty-two years of age, was married and lived in the county where the land was located. He was in good financial circumstances, being the owner of several hundred acres of land and having money loaned at interest. The other grantee was a mere boy, eleven years of age. He was not of the Willis blood, but was a son of a sister of Henry Willis's wife, born out of wedlock, and had been taken into the family of Henry Willis at a tender age to be reared and educated, and had been given the name of William T. Willis. Henry Willis, having bought and paid for the land, it is not only a reasonable assumption, in accord with human experience, that it was his purpose, as manifested by the terms of the deed, to invest William T. Willis with the ownership of some property. The latter being an alien to his blood and his future capacity to care for and manage property subject wholly to conjecture, it was in harmony with the prompting of that homely wisdom, which, in lieu of a better term, we call common sense, for Henry Willis, who by his own efforts had risen from poverty to a pecuniary competency, to invest William T. Willis with but a life estate in the land, reserving to himself a like estate with remainders in fee as stated. The after years confirmed the wisdom of this course. William T. Willis proved to be of feeble intellect when measured by the average mentality of other men of like opportunities. This is demonstrated by his being content, upon reaching his majority, to take possession of a poor timbered forty acres of the land described, build a cabin thereon and clear a little garden plot. Every Jack has his Jill, and that he married and begot perchance others of his kind, argues nothing against the limited measure made of his mentality. He was without education and could not read, much less write his name. His principal business in the years of his limited activity was the making of railroad ties, an account of which he kept by cutting notches on a stick. The disposal of this product of his industry was, from his evident incapacity, left to the direction and control of Henry Willis, who exercised the same. The latter's management of William T. Willis's interest in the land or any other business is shown by the testimony of several witnesses. This continued until the death of Henry Willis in 1898, during which time he had possession of and cultivated the land, except the forty-acre tract, which, under his direction, as stated, was used and occupied by William T. Willis. During all of this time Henry Willis paid the taxes on the entire tract. Seven years thereafter, a fact further illustrative of William T. Willis's mental limitations, despite the plain terms of the deed and the recognized value of the land, he sold the entire tract of one hundred and thirty-seven acres for two hundred dollars, and conveyed same by warranty deed in fee simple to one Samuel Hill.

Whatever seeming irrelevancy to a determination of the meaning of the deed the foregoing facts may present, is removed when the same are concretely applied. Keeping in mind the situation and circumstances of the parties, it is not reasonable to conclude that Henry Willis would have bought and paid for this land and directed that the fee in same be invested in a boy then only eleven years of age, leaving to himself only the right of use and occupancy; but rather that he would, as the deed declares, invest the boy, jointly with himself, with a life estate, leaving the use and occupancy, as the facts show they were exercised or would have been exercised in the presence of average ability on the part of William T. Willis, until the latter reached his majority when, from the nature of their titles, such use was to be in both.

If, in the face of this deed, any deductions from the facts are authorized to be made to determine its meaning, resort must be had largely, if not exclusively, to the testimony concerning the conduct of Henry Willis. This, however, does not render the testimony in regard to the incapacity of William T. Willis wholly irrelevant. It is helpful in showing that his conduct was such as to authorize no conclusion therefrom concerning the manner in which he regarded his title. When he reached his majority, he was content with the use of the forty-acre tract to afford him a shelter, a garden plot and timber from which to make ties. No other desire or purpose was evidenced by him during the life of Henry Willis. After the latter's death, at a complete variance with his former conduct, he asserts, if his act can be construed as intelligent, sole ownership in and the right to dispose of the entire land by selling and conveying same as stated. The invoking of the rule, therefore, the correctness of which cannot be questioned when the facts authorize its application, that the meaning of a deed may be shown by the construction given to it by the parties in interest, derives no aid from the testimony as to the conduct of William T. Willis.

V. Further than this, the rule as to the admissibility of oral statements of the parties in interest to show acts characterizing possession can have no application here in the presence of the unequivocal terms of this deed. Such declarationsOral are never admissible to show title, but simply, asStatements. was said in Heynbrock v. Hormann, 256 Mo. l.c. 31, to show possession where there is a dispute between owners of adjoining lands as to the boundary line, or to show a claim of adverse possession, as was held in Akins v. Adams,256 Mo. 2, to indicate the extent of the declarant's claim. No such questions are presented at bar, and the numerous cases cited by respondents to sustain the rule as stated by them are inapplicable.

VI. The plea of the Statute of Limitations is interposed to defeat the claim of the appellants. The interest of the life tenants being undivided and severable only by judicial action, which did not occur, the statute did not begin to run against the remaindermen until the death of William T. WillisLimitations. in 1918. This rule we held to be applicable where one held an interest in fee and for life on the ground that the latter interest being undivided, which although partial, was sufficient to prevent the running of the statute. [Hauser v. Murray, 256 Mo. l.c. 87.] Neither the life tenant nor the grantee of a life estate can claim adversely to the remaindermen, and the Statute of Limitations does not begin to run against the latter until the death of the life tenant (Waddle v. Frazier, 245 Mo. 391), nor will a remainderman be relieved of his disability because the life tenant has attempted to convey and his grantee claims the fee under this transfer. [Armor v. Frey, 253 Mo. 447.]

The reason for the rule as thus announced is that the remaindermen are not entitled to the possession of the land, their right to same being held in abeyance by the intervening life tenancy. Hence, they cannot sue until that estate is terminated (Herndon v. Yates, 194 S.W. (Mo.) 46; Bradley v. Goff, 243 Mo. l.c. 103; Coulson v. La Plant, 196 S.W. (Mo.) l.c. 1147; Nichols v. Hobbs, 197 S.W. (Mo.) l.c. 260), and same does not occur until after the death of both life tenants. (Hall v. French, 165 Mo. l.c. 442; Hull v. Cavanaugh, 6 Mo. App. l.c. 147; Tiedeman on Real Prop. p. 78, sec. 65). We said in Hall v. French, supra, somewhat more forcibly than expressed elsewhere, that: "No court has ever held that a right can be barred by limitation before the law permits the owner of the right to come into court, for such a decision would be a solecism, a denial of due process of law, for it would not give the party a day in court. If a remainderman came into court before the life estate had terminated, he would be turned out of court because his cause of action had not accrued. If he did not come into court within thirty years from the time the life tenant, or tenant for years, or tenant by the curtesy, went into possession of the qualified estate, he would be turned out of court, because he came in too late, albeit, his right of action had not then accrued. No such construction has ever been or could ever be placed upon Section 4268, Revised Statutes 1899" (now Sec. 1311, R.S. 1919), "and if that section was intended to prescribe any such rule of conduct it would violate the Constitution of Missouri as well as the Constitution of the United States, for it would deprive a person of his property without due process of law — without giving him a day in court."

That the rule applicable to one remainderman is applicable to all does not admit of discussion, much less of question.

The non-applicability of the Statute of Limitations to a case of the character at bar is clearly stated in the ruling of this court in Kohle v. Hobson, 215 Mo. 213. In that case a wife, the owner in fee of certain land, died intestate, leaving eight children as her only heirs. Her husband, who survived her and was the father of these children, held a life estate in the land as tenant by the curtesy. During his life one of the children bought the land at a sale for taxes, and transferred whatever right, title or interest was thus acquired to the defendant Hobson. The life tenant also sold and conveyed his interest in the land to the defendant. Thereafter the latter, at different times, procured deeds to the land from all of the other heirs except the plaintiff, who brought this suit to determine his title to an undivided one-eighth interest in the land. There was a judgment below for the plaintiff. In the discussion of this case, this court said:

"As a general rule, one tenant in common cannot purchase for his own exclusive use and benefit, an interest in real estate which is the common property of himself and others; but when he does so he holds the title thus acquired as the trustee for the use and benefit of his co-tenants, who may compel him to convey to them their respective interests, upon refunding to him the amount expended in the acquisition of the title and costs attending the sale and execution of a deed or deeds to the party or parties interested.

"In Hinters v. Hinters, 114 Mo. l.c. 29, it is said: ``Tenants in common occupy a confidential relation to each other, and because of this relation there is an implied obligation on the part of each to sustain and protect the common title. It is, therefore, a general rule that if a tenant in common buy up an outstanding title or incumbrance, the purchase will be deemed to have been made for the benefit of all co-tenants, the other co-tenants being bound, however, to contribute their respective proportions of the consideration paid for the outstanding title or incumbrance.' [Freeman on Cotenancy and Partition (2 Ed.), secs. 151, 156; Allen v. DeGroodt, 105 Mo. 442.]"

Following this reasoning the court held that when Mrs. Kohle died the land descended to her children, subject to the life tenancy by the curtesy of the husband, whose rights and possession the defendant Hobson acquired by purchase. However, whatever possession or right he acquired under this purchase was not adverse to the claims of the plaintiff or to any of the other children of Mrs. Kohle, it being only for the lifetime of her husband. It was ruled that the defendant held possession under the life tenant, whose possession was never adverse to the remaindermen; and that the defendant occupied the same position as his grantor; that the remaindermen were not entitled to possession, nor could they or the defendant, as their grantee, if he was out of possession, recover it before the life estate had terminated, and the Statute of Limitations could not begin to run against the plaintiff until the life estate had terminated by the death of the life tenant.

VII. Incongruously, the plea of laches is interposed as supplemental to the plea of the Statute of Limitations as a bar to appellants' right of recovery. It is strenuously contended by the respondents that this is an action at law. In theLaches. absence of a claim or defense in equity, let this be conceded.

The doctrine of laches therefore can have no place here. As was tersely said, in effect, in Kellogg v. Moore, 271 Mo. l.c. 193: "Laches is peculiarly a defense to an equitable action. It is no bar to a claim made under a legal title. It was expressly so held in Hayes v. Schall, 229 Mo. l.c. 124. In no case in this State has it been held that laches is a bar to a claim made under a legal right as distinguished from an equitable claim or title.

"``It is a familiar doctrine that, apart from any question of statutory limitation, courts of equity will discourage laches and delay in the enforcement of rights. The general principle is that nothing can call forth the court of chancery into activity but conscience, good faith, and reasonable diligence. Where these are wanting, the court is passive and does nothing. The doctrine is founded principally on the equity maxims, "he who seeks equity must do equity," "he who comes into equity must come with clean hands," and "the laws serve the vigilant, and not those who sleep over their rights," and is based on considerations of public policy. Its object is in general to exact of the complainant fair dealings with his adversary, and the rule was adopted largely because after great lapse of time, from death of parties, loss of papers, death of witnesses, change of title, intervention of equities, or other causes there is danger of doing injustice, and there can be no longer a safe determination of the controversy.' See also 10 R.C.L. 396-468, secs. 143 to 157, inclusive."

In this case the respondents stood on legal as distinguished from equitable claims of title. The defense in such a case is the Statute of Limitations, if applicable under the facts, and the doctrine of laches has no place in the determination of the matter at issue.

VIII. The plea of merger is interposed as an impelling reason why appellants should have earlier brought this suit.

This contention overlooks or ignores the well-defined meaning of a merger, which is that it applies only when a greater estate and a less coincide and meet in one and the same person, in one and the same right, without any intermediate estate.Merger. [Phillips v. Jackson, 240 Mo. 310; Curry v. LaFon, 133 Mo. App. 163; Bassett v. O'Brien, 149 Mo. 381.]

It appears that Henry Willis conveyed the lands described to his heirs in 1895, and it is claimed that his life estate then became merged in the fee of the remaindermen and that their right to possession then accrued, and that they could not wait until the death of the other life tenant before asserting their claims.

If there had been a merger, as contended, the grantees in the deed from Henry Willis would have become invested with a fee in the land and entitled to possession. To render this conclusion possible, however, the estates of the remaindermen must be held to be divisible by the act of the parties, a conclusion we have shown is unauthorized. The result of this contention would be to invest those of the remaindermen to whom the deed had been made by Henry Willis with a fee, although one of the life estates was still in existence, leaving the other remaindermen with estates in expectancy, which would ripen into fee simple titles only upon the death of both life tenants. That the foregoing deductions follow from the nature of the estates involved in attempting to apply the doctrine of merger, there can be no reasonable question. Such deductions, however, will not sustain the doctrine. There is no such a coalescing of a greater estate in a less as is contemplated by this doctrine to authorize its application here. What is meant by a merger is that the entire estates, and not a part of same, be included; and in the cases cited by respondents in support of this contention the entire estates are involved, and not a part of same as at bar. If there was any authority under our rulings for the invoking of a doctrine of merger protanto, it would be necessary in upholding same to ignore the character of the estates involved and the well-established rights of the owners of same, as well as the rule concerning the application of the Statute of Limitations. There being no merit in the contention, however, it is overruled.

IX. What is said in the foregoing in regard to the doctrine of merger and the rule concerning the Statute of Limitations renders it unnecessary to discuss the rights claimed by respondents to have been acquired by adverse possession. TheAdverse remaindermen being tenants in common there could bePossession. no adverse possession between them, the possession of one being the possession of all. It is scarcely necessary to say that this rule will apply with equal force to the grantees of the remaindermen.

X. It is true in a law case that the finding of the trial court as to the facts, if substantial, is not subject to review upon appeal. That rule can have no application here. There are no facts of probative force which, when applied inAppellate harmony with the rules of construction, will supportPractice. the finding of the trial court. Besides, a resort to the facts as disclosed in the testimony is not necessary to the determination of this case. An analysis of the deed alone is ample for that purpose. Its construction involves a finding of law and not of fact. That has been given to it and it is adverse to the conclusion reached by the trial court.

From all of which it follows that the judgment of the trial court should be and it is hereby reversed and remanded with directions to enter a judgment vesting the title to an undivided one-half of the land in appellants, together with one-half of the rental value of the land at four dollars per acre from January, 1918, the date of the death of William T. Willis.

It is so ordered. Elder, J., concurs; James T. Blair, C.J., concurs in separate opinion, in which Graves and Higbee, JJ., concur: David E. Blair, J., dissents in separate opinion;Woodson, J., absent.