State ex rel. Dillman v. Weide , 29 S.D. 109 ( 1912 )

SMITH, J.

Appeal from the circuit court of Grant county. A petition was filed in the office of the clerk of the incorporated town of Revilla, purporting to be signed by 28 qualified voters, requesting the submission at the next general municipal election of the question of granting permits for the sale of intoxicating liquors within the municipality for the then ensuing year. This proceeding was instituted to prohibit the trustees and clerk from submitting said question to the voters as demanded in the petition, and alleging that said officers were without jurisdiction for the reason that the petition was not signed by 25 legal freeholder voters of the town, and that seven of the persons who signed said petition were not freeholders and therefore not qualified to sign said petition. An alternative writ of prohibition was issued, to which defendants made return and answer, admitting that 3 of the persons who' had signed the petition were not freeholders, but denying the allegation's of plaintiff as to the other 4 persons named, and alleging that the petition was signed by 25 legal freeholder voters. It is further alleged in the answer that 24 of the signers of said petition were owners of the absolute fee tO' lands within said town, and that one Hans Helgeson was a legal freeholder voter, and had a legal freehold estate and interest in lot 5, block 3, of said town by virtue of a contract of sale thereof, entered into between said Hans Helgeson and -one Chloe Dillman on the 26th day of October, 1910, whereby the said Chloe Dillman, in consideration of the sum of $80, agreed to convey by warranty deed the fee-simple title to said lot to said Hans Helgeson on the 1st day of November, 1911, and that Hielgeson under and by virtue of said contract had paid $40 of the consideration for said lot, and had made all payments and done all things required under and by virtue of said contract, and had been put in quiet and peaceable possession thereof since the date of said contract, had paid all taxes and assessments thereon since said contract was made, was holding the same in good faith, and was financially able to pay, and would pay, the balance of the purchase price for said lot and secure a warranty deed therefor on the ist of November, 1911; that the said Chloe Dillman at the time said contract was made was the owner in fee of said lot; that said contract was acknowledged so as to entitle it to record, and on the ist day of November, 1910, was duly recorded in the register of deeds office of said county. To this answer plaintiff demurred on the ground that it did not state a defense. An order was made by the trial court sustaining the demurrer upon the specific ground that Helgeson was not a legal freeholder voter.

Defendants elected to- stand upon the answer, and appeal from a judgment granting a peremptory writ prohibiting further proceedings on the submission at said election of the question of selling intoxicating liquors. The sole question presented is whether Helgeson was a legal freeholder voter, and qualfied' to sign the the petition. It is conceded that, if Helgeson was not a freeholder, the village trustees had no jurisdiction in the premises, and were not authorized to submit the question to a vote.

[1] Section 1, c. 166, of the Session Daws of 1903, provides as follows: “At the annual municipal election held in any township, town or city in this state for general municipal purposes, the question of granting permits to sell intoxicating liquors within the corporate limits of such township, town or city shall be submitted to the legal voters thereof upon petition signed by twenty-five (25) legal freeholder voters of such township, town or city, to be filed with the clerk or auditor of such township, town or city thirty days before election, which petition shall state that a vote is desired upon such question.” It is conceded that Helgeson was a qualified legal voter of the village of Revillo, but respondent’s contention is that upon the facts above set forth he was not a freeholder. If the contract above referred to vested in Helgeson a freehold estate, he was qualified as a signer of the petition. Section 241 of the Civil Code provides-: “Estates in real property in respect ¡to the duration of their enjoyment are either, (1) Estates of inheritance or perpetual estates. (2) Estates for life. (3) Estates for years, or (4) Estates at will.” Section 245: “Estates of inheritance and for life are called estates of freehold; estates for years are chattels real; and estates at will are chattel interests, but are not liable as 'such to sale on execution.” Any estate in real property (except an estate for years and an estate at will) which may descend as real estate upon the decease of the ■holder of such estate is a “freehold” as defined by section 245, Civil Code, supra. The statute defining the qualifications of a signer of a petition make any “freeholder” of the township, town, or city competent as a signer. What constitutes a “freeholder” within the meaning of this statute? Can the statute by any possible or reasonable construction be made to mean anything else than that the holder of a freehold estate as- defined by section 245 is a competent .signer? Can'it be made to mean anything else than .that the holder of an estate which may pass as real property by inheritance, or the holder of an estate for life, in real property, is a “freeholder” ? Section 2444, Civil Code, says: “Whenever the meaning of a word or phrase. is defined in any statute, such definition is applicable to the same word or phrase when ever it occurs except where a contrary intention plainly appears.” Section 245, supra, defines a “freehold estate,” and it seems too plain for discussion that any person who holds a life estate or an estate in real property which may be inherited as real property is. a “freeholder.” State v. Kokomo, 108 Ind. 76, 8 N. E. 718. Under ¡this statute, it is wholly immaterial that a life estate limited upon his own life cannot descend to the heirs of the holder of the estate because the estate determines upon his ■death. The statute in effect declares that the holder of a life estate may sell and transfer his estate, and that the transferee would become a “freeholder” by reason of acquiring -the freehold estate. Respondent’s argument, founded upon the supposed illogical results which might follow from a contract to purchase a life estate, is without convincing force under the plain provisions of the statute which declare that a life estate limited upon the life ■of the holder is a freehold, as well as an estate limited upon the life of ,a third person. A considerable amount of very technical logic is expended, upon the words “inheritable estate” and “equitable conversion,” and the remarkable conclusion is reached that the holder of a contract for the purchase of a life estate limited upon his own life could not be a freeholder because 'his own heirs could not inherit the estate which by its conditions terminates upon his death. But the fact that his own particular heirs may not inherit the estate is not decisive of the inheritable quality of the estate itself. The holder of a life estate, whether the estate be limited upon his own life or upon the life of another, may alien the estate, and, if the purchaser dies before the person on whose life the estate is limited, the heirs of the purchaser will inherit the remaining life estate. Respondent by the same, ■sort of logic might easily demonstrate that the holder of an. estate in fee simple absolute does not possess an “inheritable estate” when forsooth it happens that the owner of the estate is without heirs to inherit. It seems clear that any estate which may pass by inheritance, whether it be held as a life estate or in fee simple absolute is an “inheritable estate,” even though the class of persons who may take the estate be limited by the terms of the tenure or by the provisions of the laws of inheritance.

[2] Respondent’s .argument appears to ignore the fact that an “equitable estate” in real property is as truly an inheritable estate as is a legal estate or an estate held in fee simple absolute, and that the true test -as to whether the estate is inheritable and hence a freehold does not depend upon the class of persons who may -inherit, but upon the question whether the estate itself is capable of passing by inheritance. That a life estate whether for the life of the owner or of another person may pass by inheritance to the heirs of the grantee of the holder of the life estate is so well settled that a citation of authorities is unnecessary. And, should doubt exist as to respondent’s conclusions upon the doctrine of equitable conversion and inheritable estates as applied to life -estates, if may be noted that our own statute conclusively settles any question as to the' freehold character of both classes -of life estates. Section 245, C. C., declares that a life estate is a freehold, and 'section 246 declares that an estate during the life of a third person is also a freehold estate. In either case the life estate is alienable, and is inheritable by the heirs of the -alienee. It follows that a purchaser of a life estate limited upon his own life acquires an alienable freehold estate, descendible to- the heirs •of his alienee, whenever the contract of purchase by its terms vests in him the equitable right to the life estate, precisely as he would under ;a like contract for the purchase of an estate in fee simple absolute. But we deem it unnecessary to pursue this ■discussion further, as the question of life estates has only an indirect relation to the question which is vital in the determination of this appeal. The real question is whether under a contract for the purchase and sale of real property the vendee acquires an inheritable, and hence a freehold, estate in realty. Only this question remains for solution: What interest or estate was acquired by Helgeson in the real property which was the subject of his contract?

[3] If may be conceded that where a contract for the purchase and sale of real property by its terms discloses that it is the agreement and intent of the parties that no- interest, legal or equitable, shall vest in the vendee until the happening of a future event or the performance of some condition subsequent — such for example as the payment of the purchase price — the vendee acquires no estate, legal or equitable, in the real property until the happening of the event or the performance of the condition. 1 'Warvelle on Vendors (2d Ed.) §§ 175, 176. Likewise, where the contraer constitutes merely an option to purchase,, no estate, legal or equitable, vests in the vendee until the option- is exercised. Especially is this true where time is made of the essence of the contract. Stembridge v. Stembridge, 87 Ky. 91, 7 S. W. 611; Richardson v. Hardwick, 106 U. S. 252, 1 Sup. Ct. 213, 27 L. Ed. 145; Bras v. Sheffield, 49 Kan. 702, 31 Pac. 306, 33 Am. St. Rep. 386. See note “c,” Bowen v. Lansing, 57 L. R. A. 643. Bu-t under the ordinary executory contract for the purchase and sale of real property the authorities are practically unanimous in holding that in equity the estate from the making of the contract is regarded as the property of the vendee, attended by most if not all the incidents of ownership, when the vendee has been put into possession of the property, while the purchase money is considered as belonging to the vendor. 1 Warvelle on Vendors (2d Ed.) § 174, says: “This result is1 accomplished by the application of the familiar principle that equity looks upon things agreed to lie done as actually performed, and hence a contract for the sale of land is for most purposes regarded in equity as if already specifically executed. * * * The relation, therefore, is analogous to that of equitable mortgagor and mortgagee, the vendor holding the legal title as security for the unpaid purchase money, which security it has been held is essentially a mortgage interest. The vendee has .an equity of redemption and the vendor a correlative right of foreclosure upon default in the payments. But in this, as in all similar cases, the mortgage is the incident, the debt the principal, and the vendor has no> further interest except to the extent of the security the mortgage affords for his debt. Subject to these rights of the vendor, the vendee has absolute control of the property, and may dispose of it or incumber it in exactly the same manner as land to which he has the legal title” — citing authorities. See, also, sections 175, 185. “Where the purchaser has been let into possession, he is in equity the owner, subject only to the lien of the vendor for the unpaid purchase money. He has a right to the free use and enjoyment of the property and to the renits, issues, and profits thereof, so long as he is not in. default under the contract. He may mortgage it ■ for the payment of his debts, may sell and assign his rights to another, or may create a privilege or easement upon any part of the premises which will be valid and binding, but liable to be defeated should there be a failure to pay the balance of the purchase money according to the terms and conditions of the contract of purchase. The vendor in such a case cannot interfere with the free use and enjoyment of the premises by the vendee, or with any one having a privilege from such vendee, provided that there is no lessening of the security for the purchase money occasioned thereby.” Valume 1, § 181. “As the property is regarded as belonging to' the vendee from the time of the delivery and acceptance of the written contract, it follows that any loss arising from deterioration between the agreement and conveyance falls upon and must be borne by him. Hence, if any of -the buildings or improvements are destroyed by fire during this period, the vendee must bear the loss, unless there is an agreement to deliver possession with improvements in the same condition as at the time of sale, or unless the loss occurs by the culpable negligence of the vendor. It is the duty of the vendee to protect himself against loss, and, failing in this, he must bear the same if any i's. entailed.” The conclusions announced by the distinguished author áre sustained by citations of the highest authority. 6 Pom. Eq. Juris, c. 42. Some allusions were made in- argument to the doctrine of equitable conversion. It is apparent that this doctrine has only an indirect application to the propositions under discussion in this case. The authorities we believe to. be practically unanimous in sustaining the views expressed by the learned, author from whose work we have quoted somewhat extensively. The contract is not set out in the record on this appeal, nor does the pleading disclose any optional or conditional provisions therein. It cannot be presumed from the language of the pleadings that the contract is anything more or less than a simple contract for the purchase and sale of real property. We reach the conclusion, therefore, in accordance with the practically unanimous decisions of all the courts of highest authority, that under this contract Helgeson, the vendee in possession, became vested with the entire equitable estate in the real property which is the subject of the contract, and that the vendor .only held and retained the legal title to' the same as security for the payment of the' unpaid portion of the purchase price. The only question remaining is whether the equitable estate thus vested in Helgeson under the contract is an inheritable estate or interest in real property. If inheritable, it is a, freehold estate under the express language of section 245 of the Civil Code, and' Helgeson ■is a freeholder and competent signer of the petition. The doctrine that the equitable estate vested in the vendee is inheritable as real .property is so well settled that an extended discussion or cita-, •tion of authorities is unnecessary. It is likewise immaterial under the authorities whether an equitable estate be created by cofatract or by operation of law. Its inheritable quality remains.

In Pomeroy’s great work on Equity Jurisprudence (volume 6, c. 42, page 1372), treating of equity estates and interests under contracts of -sale and purchase of land, the learned author quotes with approval the language of Eord Eldon in Seton v. Slade: “The estate from the signing of the contract is the real property of the vendee. It descend® to his heirs, it is devisable by his will, and the question whose it is, is not to be discussed merely between the vendor and vendee, but may be discussed between the representatives of the vendee.” Again (section 840) the author says: “Thus where the vendee die-s having a contract for lands, but, the conveyance has not yet been made to him, the vendee’s interest in the lands shall be considered as real estate and descend to his heir, or he may -devise them by will, and his representatives ■shall pay the purchase money out of the assets.” In Loventhal v. Home Ins. Co., 112 Ala. 108, 20 South. 419, 33 L. R. A. 258, 57 Am. St. Rep. 17, -ci-ted by the author, it is said: “As land, the vendee may convey or -devise it, and, as land-, it is descendible to his heirs, who may, in a court of equity, compel specific performance of the contract.” Again, at section 847, the author says: “Rands contracted for pass by the devise of the vendee, and his executor must pay the purchase price out of the personalty. Even though the devise is general as, ‘all my lands,’ it passes the equitable title of lands contracted for by the vendee. A devisee can bring -suit to compel specific performance of the contract.” In 1 Warvelle on Vendors (2d Ed.) p-. 224, the same doctrine is announced. “The equity which is vested in the vendee is a proper subject of devise by him, and will descend to his heirs the same as- realty. The same rights which- were possessed by their ancestors- will devolve on them, and they may have an- enforcement of the contract in their own favor. Hence where there is a contract for the purchase of land, inasmuch as- it descends in equity to the heirs of the vendee as real estate, they may call on the executors or administrators -to discharge the contract out of the personal estate .so as to enable them to demand a conveyance, from the vendor.” And in passing we may observe that it is in connection with the descent of real property that the doctrine of equitable conversion has its appropriate -and most frequent application. In the c-ase of Clapp v. Tower, 11 N. D. 556, 93 N. W. 862, under a statute identical with our own, the question under discusision was directly passed upon by the Supreme Court of North Dakota in a -carefully considered opinion by Mr. Justice Young, in which the rule laid -down by Mr. Pomer-o-y in his work on Equity Jurisprudence is -approved and adopted. The question arose between the executors and heirs and devisees under the will. The court says: "The rule is uniform, we think, that, where a valid and binding contract of sale of land has been entered into, such as a court of equity will specifically enforce against an unwilling purchaser, the contract operates as a conversion.” It was there 'held that, upon the death of a vendor, all his interest passes to his executors as personalty, and that the vendor holds the legal title only as trustee and as security for the performance of the contract by the vendee. To the same effect is Bowen v. Lansing, 129 Mich. 117, 88 N. W. 384, 57 L. R. A. 643, 95 Am. St. Rep. 427. See, also, Woodward v. McCollum, 16 N. D. 42, 111 N. W. 624; Croxall’s Lessee v. Sherrerd, 72 U. S. 268, 18 L. Ed. 572; Commonwealth v. Briucher, 41 Va. 826.

Only one decision is cited by respondent which is apparently m conflict with the conclusions here reached, and that is the case of Cohn v. Wellivar, 84 Neb. 230, 121 N. W. 107. In that case language i's used by the court which it must bq conceded tends to sustain respondent’s contention, but the decision is based largely, if not wholly, upon the definition of a freehold estate by Justice Holcomb, cited in 20 Cyc. 843, where it is said: “From the definitions given, it < will readily be seen that, in order to be a freeholder, a person must have a property right in and title to real estate amounting to an estate of inheritance or for life, or for an indeterminate period. What is required is title to the property, and not simply a contingent or an expectant estate, nor a right of occupancy, or a privilege with power to prevent alienation or incumbrance by the holder of the legal title.” The language quoted is absolutely in line with the authorities above quoted and the conclusions we have reached in the case at bar. Under this definition, a person having a right and title in real estate amounting to an estate of inheritance or for life is-a freeholder. “What is required is a title to the property” are words in this definition to which respondent apparently attempts to attach the meaning that the “title” referred to can be nothing else than a legal title. The language of Judge Holcomb does not warrant such a conclusion, but clearly does sustain the conclusion that, to be deemed a freeholder, a person must have a property right in real estate ‘‘amounting to an estate of inheritance.” Respondent’s confusion in the application of this definition apparently arises from overlooking the universally admitted rule above stated, that an equitable interest or estate in real property is equally inheritable with a legal estate, and that both are freehold estates. The case of Marica v. Yost, 85 Neb. 842, 124 N. W. 460, cited by respondent, goes no further than to hold that a petitioner must be a bcjir fide freeholder, and i's decided upon -the ground of fraud and a ro'orable attempt of the signor to qualify as a freeholder. In the case of Cohn v. Wellivar, supra, cited by respondent, the same question of bona fide freeholder is 'also involved, and, while the decision contains language which perhaps sustains respondent’s contention, the court very strongly intimates that the contract •there construed did not purport to vest in the vendee any present interest in the real estate, but might be considered merely an agreement to sell in -the future,' upon compliance with terms and payments stipulated in the contract, and that no purpose was disclosed to vest any present interest in the purchaser, nor to give any right to claim any interest, until the terms of the contract were fully met. This decision rests upon the definition of Judge Holcomb above quoted, which in our judgment -does not sustain the conclusion announced. In the case of Hannah v. Shepard, (Tex. Civ. App.) 25 S. W. 137, the exact question was passed upon which is before us upon .this apeal. The court there said: “We are of the opinion that the court did not err in holding that the petition for the election was- signed by 20 freeholders. The signers who had not paid for their land were equitable freeholders, and the one who was not in possession of the land he had contracted for had the right of possession.” Goodwin v. Board of Lducation, 38 Mich. 95. The case of Commonwealth v. Reynolds, 31 Va. 663, cited by respondent, was decided many years ago, and the question as to what constitutes a freehold estate -appears to have been but very casually considered by the court. In our opinion -the ruling should be given but little weight in this discussion. Respondent’s contention is, in effect, that the Legislature intended to qualify as signer of a petition only the holder of the legal title. But this contention utterly ignores the very language ■of the statute itself, which says, not that the owner of the legal title oor the owner of the equitable title is qualified as a signer, but that the owner of a freehold estate is qualified, and as it must be conceded that either a legal or an equitable estate in real property is a freehold, . if would be a plain preversion of the language of the statute, and of the legislative will as therein- expressed, for this court to decide that only'' the holder of the legal title is so qualified.

[4] It has been suggested that one person may be vested with the “legal freehold estate” in real property, while another holds the “equitable freehold estate,” and that, as; both cannot be qualified. signers of a petition, this court must decide which of the two the Legislature intended to qualify as a signer of the petition. The conclusion would perhaps be unavoidable if the premise were correct; but we do not think the premise can be sustained for the reason that two persons cannot own the same identical thing at the same time. What do the words “estate” and “title” mean?

The term “estate,” as descriptive of rights in property, “signifies the quantity of interest which a person has, from absolute ownership -down to naked possession” (Bouvier, L. D. 692), while “title” is “the means whereby the owner of lands has the just possession of -his property” (Bouvier, L- D. 121). As between vendor and vendee of real property, the term “estate” may be defined to be “an -interest -in real property which confers -the right to a full and complete or to a limited, beneficial use of the property its-elf.” The “title” and the “estate” are not identical. The “title” may be said to be -the evidence of the right. Formerly the equitable right -or title could -only be -exhibited in .a court of chancery. But either in law or -in -equity the substantial thing — the estate — is the same, the right to a beneficial use of the property its-elf. One person may hold the legal “title,” while the “equitable title” or right is held by another. But the same estate — the right for example to the full, perpetual beneficial use of property — cannot be vested .in one person, while the equitable estate or right to the full and perpetual use of the same property is- vested in another (except, perhaps, certain' classes of express trusts), for the simple reason, that the same -thing cannot be in two- separate and distinct places at the same time. But when the right to the complete unconditional and perpetual beneficial use of (or equitable title) has become vested in one person by contract or operation of law, while the legal title is -in another (except when held as security only), a count of chancery will compel a transfer of the legal title -to the holder of the equitable estate or title, because the legal title and the right to the beneficial use should be united in the same person. As we have shown, when the naked legal title is vested in a decedent, and the equitable estate in another, the heirs of -the -decedent acquire no estate whatever in real property. The. naked legal title passes to them, but no estate, for the simple reason that -the -estate, not being in the ancestor, cannot descend .to his heirs. If in .such case two- estates could exist at the same time — the legal estate in the decedent and the equitable estate in another — the legal estate would certainly descend to the heirs. But no- court has ever bo held. It is granted, of course, that a vendor of real property may* carv-e out of his complete estate and -sell a limited portion-, such as an estate for life or for years, and retain the residue in himself; and in such case the residue of the estate would descend to his heirs as real property. But no case has been found holding that any estate in real property ever vested in heirs, where the contract of the vendor is intended to convey and vest his entire beneficial interest in the property in the vendee. It would seem illogical, therefore, to say, as respondent contends, that there can never exist an equitable -estate in real property, unless there exists at the same ■time -a legal estate in -some -other person. The right to the same “beneficial use of real property” cannot exist in -two persons at the same time. But -the legal title to real property may be in one person- while the equitable title or right is- in -another, and the confusion of thought arises from assuming .that the -legal title always confers, or has back of if, the estate, the right to the beneficial use of the property, thus confusing the “title” with- -the “estate.” It may be granted, of course, that an equitable title or right to real property cannot exist without legal title to the property vested somewhere. The same confusion of thought inheres in the suggestion that a person- must bring- an action in a court of chancery before he can acquire an equitable title or estate. The “title” and the “remedy” are confused. It is only when the rights of the holder of the title, whether it be legal or equitable, are denie'd him, that the holder of the estate is compelled to enforce his rights -in a court, and the necessity for legal proceedings to enforce the holder’s rights when denied is the same whether his title be legal or equitable. In either case the judgment or decree of the court may become incontrovertible evidence of the title and of the right to the estate, but the title or right existed before the judgment or decree. Were it not for the dual aspect of the 'question presented by discussions of courts and law-writers, as to the effect of executory contracts for the sale of land at law, and in equity, two minds could hardly differ as to conclusions.

But these different aspects of estates and titles and rights of parties under such contracts had their origin in differences of procedure in the common law and chancery courts, which do not exist in states like our own, which have abolished the distinctions between law and equity as rules of right, and have but a single court with jurisdiction to ascertain and adjudicate all such ultimate rights in a single action. This change in jurisdiction and procedure renders inoperative and practically destroys the common-law rules governing substantive rights, in so far as those rights were dependent upon or grew out of the modes of procedure in common law and chancery courts. It is apparent that the rules of equity which determine ultimate substantive rights now supersede and render ineffectual any technical rules of the common law which were in conflict with or which made inapplicable those equity rules. Under the rules of law as formerly administered, the vendor in an executory contract for the sale of land remained to all intents and purposes the owner of the land (Pomeroy’s Equity Jurisprudence,' § 367), while in chancery courts the vendee was looked upon 'and treated as the owner of the land, and an esitate was vested in him commensurate with that provided for by the contract, whether in fee, for life, or for years (Id. § 368). It follows that the equity rule as to rights of parties and conditions of titles and estates should be adopted by our courts. Speaking of the class of contracts- under discussion, the learned author, Mr. Pomeroy, says: “The equitable interest of the vendor is correlative with that of the vendee. His beneficial interest in the land is gone, and only the naked legal title remains, which he holds in trust for the vendee, accompanied, however, by a lien upon the land as security when any of the purchase price remains unpaid. This lien, like eveiy other equitable lien, is not an interest in the land, is neither a jus ad rem, nor a jus in re, but merely an encumbrance.’ ’ The conclusion seems , clear that as between vendor and vendee any contract which operates to vest the equitable estate in -the vendee -divests the vendor of his entire estate, and that the vendor cannot thereafter be considered a freeholder for any purpose. Equally clear is the conclusion that the vendee becomes a freeholder. It has been suggested' that the application of the law itself by municipal officers charged with its administration would be rendered simpler and easier if we should decide that the holder of the legal -title only are qualified signers of a petition. But is it not clear that it requires not less legal information -on the part -of municipal officers to- know that the holder of the naked legal title is not a freeholder than to know -that the holder of the equitable title and estate is a freeholder? We believe that, when the Legislature s-aid “freeholder,” they meant “freeholder” — nothing more an-d nothing less — and we do not believe that this court by a construction founded upon technicalities of procedure applied to- English land tenures -and the Feudal law should give the language of the act an interpretation which excludes a class of freeholders plainly within its terms. It is conceded that the term “freeholder” includes the holder of the equitable estate.

[5] Had the Legislature intended to qualify only those who were the holders of fee-simple titles, -that purpose -could have- been ' easily -expressed- by the us-e of appropriate words- in the act itself. This court must -and should construe the law as the legislative wisdom has -seen fit to -express- it in language u-s-e-d in the act itself. We have no more -authority to exclude persons competent as signers under the terms of the -act than we hav-e to add others not -described therein. To do otherwise would justly subject the court to the criticism so frequently heard in recent years, that courts are not content to recognize the will of the people as expressed by the language used in legislation, but are prone to usurp the legislative function by ingrafting upon legislative acts their own views as to what the law should be. And, even were it within the legitimate function of the court to consider or discuss the wisdom of legislative enactments, we see no reason why the Legislature in the act under discussion may not properly have considered that on.e who has contracted for and is. in actual occupancy of a home .and is the equitable owner thereof is interested in the moral duties of citizenship in the community equally with his more fortunate neighbor who has already paid for and obtained legal title to his. home. It is conceded on this appeal that Helgeson was put in possession upon the execution of the contract of salej has remained in possession ever since, has made improvements and paid taxes, and is able and willing, and intends to fulfill all the conditions of the contract and to pay '.the remaining portion, of the purchase price when due, and obtain a deed from the vendor. Iiis entire good faith in the purchase of -the property or in the signing of the petition is not questioned on this appeal. We are clearly of opinion he became vested under the contract with a present inheritable freehold estate in .the purchased property, and that he was a freehold voter qualified to sign the petition.

The order of the- trial court sustaining the demurrer is reversed, and the cause remanded for further proceedings according to law.