Gordon

The defendants’ appeal from the judgment was taken within sixty days after its rendition. The evidence is brought up in the record.

The plaintiff sued to quiet title to land. All the parties claim under a certain deed conveying the land, executed by William Gordon to John Gordon on June 3, 1872. The rule in Shelley’s case was in force in this state until January 1, 1873, when it was abolished by section 779 of the Civil Code. The said deed was therefore subject to that rule and the sole question is whether or not it comes within the rule. The rule is that where a will devises or a" deed grants land to A for life and the remainder after his death to his heirs, or to the heirs of his body, using these words or words having the same legal effect, the effect is to vest in A a fee simple absolute if the remainder is to his “heirs,” or a qualified fee, if it is to the “heirs of his body.” The heirs of A in such a case take no estate or interest in the land during the life of A and he may dispose of it as if the deed or will contained no words purporting to transfer to him less than a fee. As it is usually stated, the words “heirs” or “heirs of his body,” or whatever other words of like…

I dissent from the order denying a rehearing of this cause, and from the judgment.

In this state the rule in Shelley’s case governs the construction of all deeds of conveyance made prior to January 1, 1873. (Norris v. Hensley, 27 Cal. 439 ; Barnett v. Barnett, 104 Cal. 298 , [ 37 Pac. 1049 ].) It is, as to such deeds, a rule of property. I cannot distinguish this case from Norris v. Hensley where the terms of a devise were held to bring it within the rule. I think it can be distinguished from Montgomery v. Sturdivant, 41 Cal. 297 . These are our only authorities. The decisions in other states are conflicting. We should follow our own, however questionable when essential to the protection of vested rights.