The opinion of the court was delivered by

The primary question in this •case is, as to the true construction and legal force of the deed •of conveyance" from Isabella Bradway to John T. Wood and ■his wife, Sarah A. Wood. The plaintiff claims title to the ■one undivided fourth part of the premises in dispute, by force of a sheriff's deed, made in a foreclosure suit, founded ■on a mortgage given by Thomas Sinniekson, Jr., and his wife, Adeline M., who was a daughter of the above-named John T. Wood and Sarah A. Wood. This encumbrance was ■made after the death of Sarah A. Wood, but during the lifetime of her husband, and the controversy has arisen with ¡respect to the interest of Mrs. Sinniekson in the property embraced in the conveyance to her father and mother.

The contention on the side of the plaintiff is, that the conveyance referred to would, at common law, have vested in the grantees a fee tail.; and that, consequently, by force of the eleventh section of the act directing the descent of real estates, (Rev, p. 299,) Mr. and Mrs. Wood became tenants for life in the premises, and Mrs. Sinniekson, their daughter, became one of the tenants in common in fee of a vested remainder. In opposition to this, the defendant insists that the deed has not the efficacy attributed to it; or that, on the concession that it has, then the position is taken, that it not ■only would create such fee tail, but would mount upon such *377fee tail an expectant fee simple, and that, therefore, the statute just designated has no applicability to the case.

The instrument thus put in discussion is certainly indicative of singular want of skill and legal knowledge in the draughtsman; but, notwithstanding its solecisms, I think it plain that its legal operation is to create a fee tail special at the common law. The state of the case declares that this deed conveys the premises “to John T. Wood and Sarah Ann Wood, their heirs and assigns,” and that the habendum clause is in the words following, to wit, “to have and to hold the said premises, with all and singular the appurtenances, unto the said John T. Wood and Sarah Ann Wood, his wife, and to their heirs, male and female, the lineal issue of the marriage between the said John T. Wood and Sarah Ann Wood.” Thus, it will be observed, that while in the premises of this deed a fee is conveyed, the habendum clause measures out but a fee tail. It has been in doubt whether, under such circumstances, both clauses are to have, to some extent, a separate effect, or whether the habendum clause is to be taken as simply explaining or qualifying the force of the premises; but I have not found that it has ever been thought that, whichever view was adopted, a fee tail was not evolved. When the habendum clause has been regarded as nothing more than a qualification of the estate described in the premises, a fee tail has been deemed the entire product of the conveyance; when a larger effect has been ascribed to the premises, the result has been a fee tail with a fee simple expectant thereon. This doctrine is very clearly stated by Lord Coke, in his annotations on Littleton. 1 Inst. 21, a. Referring to the instance of a want of exact correspondence between the premises and the habendum, he puts forth this illustration : “ As if a man in the premises give lands to another, and the heirs of his body, habendum to him and his heirs forever; it hath been holden, that in this case he hath an estate tail and a fee simple expectant thereon. And so, it is said, vice versa, if lands be given to a man and to his heirs in the premises, habendum to him and the heirs of his body, that he hath an estate tail *378and a fee simple expectant.” This latter case thus stated, of :a fee given in the premises and a fee tail denoted in the habendum, is the one now under consideration; and although, in the foregoing quotation, it is said that such dispositions ■result in a fee tail and a fee simple expectant, such a doctrine cannot be received as unquestionable, for this same author, in the eighth part of his reports, page 154, refers to other cases holding the contrary view, and characterizes the expression ■of the other opinion as merely obiter. As it is the office of ■the habendvm to qualify and explain the general words of the premises, this doctrine last stated seems to me to be the better grounded in reason, as I also think it is better sustained by authority. 2 Washb. on Real Prop. 642; 2 Id. 73; 2 Preston’s Est. 358, 360. But, with respect to the present inquiry, it does not appear to be a question of any importance whether these clauses of the deed in controversy raise purely a fee tail, or such an estate with a fee simple ■expectant on it, for it is enough, for present purposes, to know that, adopting either of the views taken in the authorities, it is admitted that the operation of the instrument is to •create a fee tail.

The reason why I think this the all-important and controlling fact is, that, in my opinion, the eleventh section of the -statute of this state, touching the descent of lands, applies to every possible case in which an instrument, by the operation • of common law rules, calls into existence an estate tail. The language of this law is jjerfectly plain and explicit. It says: “ That from, and after the passing of this act, where any conveyance or devise shall be made, whereby the grantee or devisee shall become seized in law or equity of such estate in any lands or tenements, as under the statute of the thirteenth of Edward I., (called the statute of entails,) would have been an estate in fee tail,” then the scheme of the statute is to come into play. The rule thus established is universal; it has no • exceptions, and as the statute hints at none, it is impossible for the court to interpolate any. There is nothing in the .language of the act that would lend the slightest countenance *379to such an intrusion on the part of the court, nor is there anything in the reason or policy in which this law is founded which would justify such a course. The legislative purpose was to eradicate the entire system of entails, the evil thus sought to be removed being the impolicy of allowing land to be hampered and fettered by the technical rules appertaining to that branch of jurisprudence. To accomplish this aim with entire effect, it was requisite to provide against every form which the object to be suppressed might assume, and hence the generality of the language of the regulation. If this court should now hold this estate tail, created by this deed, to be valid, because there is superadded to such estate a fee simple expectant thereon, it is obvious that the design of this law would be to that extent counteracted, and the endeavor to abolish entails would have been attended with success only in part. If estates tail could be established by superadding to the gift the donor’s right to a reverter, they would soon again be in vogue, and the interdicting statute would be stinted to half its proper effect.

It is obvious, from this view, that the contingent interests which, by this conveyance, are given to its donees, can have no effect on the question now involved. The event provided for appears to have been the running out of the estate tail during the life of the longest liver of the two donees in tail. Such a regulation recognizes the estate tail, and consequently has no present significance.

This conclusion also dispenses with the necessity of examining the other points taken in' the, argument.

The result is, that Mr. Sinniekson, when he made this mortgage, was, according to the force of the decision of the Court of Errors in the case of Demarest v. Den, 2 Zab. 599, seized of a vested remainder in fee, and consequently had the legal right to encumber such estate.

The Circuit Court should be so instructed.