LOVE v. BLAUW. [61 Kansas, 496.] CONVEYANCE, WHETHER DEED OR WILL-A written instrument in form of a deed conveying a present interest in land to the children of the grantor, but attempting to postpone their enjoyment of the estate until after his death, and subsequently treated by the parties as a deed, must be construed as such, and not as an instrument testamentary in character. PARTITION-LIFE TENANT AND REMAINDERMEN.-A life tenant of lands cannot maintain an action for partition against the remaindermen, and a judgment in such case setting part of the land over to the life tenant in fee is absolutely void, and subject to collateral attack. Claim of land under a decree in a partition suit. Under the deed mentioned in the opinion Catherine Blauw, together with her husband, granted certain land to her children. The deed contained the following provision: "The estate in said lands and tenements not to vest in said named grantees and their heirs until the death of said Catherine Blauw, she reserving in herself a life estate therein., To have and to hold unto the said named grantees and their heirs from and after the death of the said Catherine Blauw and their heirs and assigns forever." The plaintiff in error, Anna M. Love, claims under the children of Mrs. Blauw, by conveyance from them. J. P. Hindman, for the plaintiff in error. J. W. Jenkins and C. P. Craig, for the defendant in error. 500 SMITH, J. The deed from Catherine Blauw to her minor children is attacked by the defendant in error 501 as testamentary in character and not valid as a conveyance. The question is difficult to settle, in view of opposing authority: Devlin on Deeds, 2d ed., secs. 855a-855c. There is a tendency, however, in the modern decisions to uphold conveyances when not clearly repugnant to some well-defined rule of law: Abbott v. Holway, 72 Me. 298; Dismukes v. Parrott, 56 Ga. 513. We are inclined to hold that the better interpretation of the instrument under consideration is to construe it as presently passing an estate in remainder to the grantees, reserving a life estate to the grantor, Mrs. Blauw: Graves v. Atwood, 52 Conn. 512, 52 Am. Rep. 610. By the terms of the deed a present interest was conveyed to the children of Mrs. Blauw, but their enjoyment of the estate was postponed until after her death. The intention of the parties also is to be considered. Mrs. Blauw regarded it as a conveyance, which fact was attested by the partition suit brought by her, in which she treated the instrument as a deed, and the grantees coincided also in her construction of it. If the instrument is not given effect as a deed, it fails of any purpose, for it is not so witnessed as to be valid as a will. The second question relates to the validity of the partition proceedings brought by Catherine Blauw against her children for a division of the estate. If such proceedings were authorized by law, or were merely voidable, they must be sustained so far as their effect is involved in this case. We are well convinced, however, that the proceedings were void, in that the court, under the pleadings in the cause, could not take jurisdiction of the subject matter of the partition suit. In her petition for a division of the property she avers that she is the owner of a life estate in the lands; that she and her husband executed a deed 502 to her children for the same, reserving to herself a life estate; that the interest of each of said minors defendant is the equal undivided one-third thereof, subject to her life estate therein. The prayer of her petition was: "That so much of said land as will be found by appraisement to be of the value of the life estate of plaintiff be set apart to plaintiff in kind unless it should be found to be injurious to the interest of the parties, in which event that so much land as will yield the value of her life estate be sold and the proceeds paid to her in money. That the remaining portion of said land be equally divided between said defendants." The defendants in that action answered by general denial, filed by their guardian ad litem. To confer jurisdiction upen a court for the partition of an estate, it is indispensable that cotenancy exist between the parties. In a case where the same building covered ground owned by both parties to the action, the supreme court of Illinois used this language: "We are satisfied neither a court of law nor equity has jurisdiction over the case as presented by these pleadings, and accord with appellee in the proposition that no power exists to compel the fusion of these estates, to be followed by a sale and finally by a distribution of the proceeds. The idea of the plaintiff in error that he and the defendant in error hold this property jointly is not supported by the title deeds. They are neither joint tenants, tenants in common, nor coparceners, but they severally, each for himself, own distinct parts and portions of the premises, the character of which a court of chancery has no power to change": McConnell v. Kibbe, 43 Ill. 18. See, also, Johnson v. Moser, 72 Iowa, 523. In the case of Smith v. Runnels, 97 Iowa, 55, the plaintiff was the owner of a life estate 503 in real property acquired under a will. She brought an action of partition, alleging that the defendants (some thirty-two in number) were collateral heirs to the property, entitled to what remained in the real estate after plaintiff's life estate had terminated. The court said: "Plaintiff having but a life estate in the land, the next question presented is, What authority has a court of equity to order its sale? It is evident that these parties are not joint owners or tenants in common of the same real estate, and it is equally clear that, under our statute, partition can be had only when the land is so owned. As said in the case of Johnson v. Moser, 72 Iowa, 523: "There is no necessity to have, nor, in the nature of things, can there be, partition of real estate owned in severalty': See, also, Clark v. Richardson, 32 Iowa, 399; Freeman on Cotenancy, sec. 431. Under the will, plaintiff has the sole use and benefit of the land during her natural life. The defendants have no right to its possession or use until the death of the plaintiff. Whether the plaintiff may make a voluntary disposition of her life estate is a question we need not determine; for if she has this right, she needs no decree of a court of chancery to assist her in the exercise of the power": See, also, Seibel v. Rapp, 85 Va. 28. In Stansbury v. Inglehart, 19 Wash. L. Rep. 594, it was held that a court of equity not only could not assume jurisdiction to decree partition of land between one having a life estate and the remainderman, but that the consent of the remainderman, where he is an infant, or his ratification could not give validity to such a decree. It will be noticed that the district court in this case devested the minors of a large portion of an estate which they owned in fee simple, subject only to the life estate of their mother, and gave it to the latter 504 absolutely, in fee, and without condition. The court made a finding that the infants were owners in fee simple, and that Catherine Blauw had simply a life estate, and just how the court proceeded to convert this life. estate into a greater one we do not understand. We cannot treat the judgment in that case as voidable merely and not subject to collateral attack. We regard it as absolutely void. Having a life interest only, and claiming no greater estate in her petition, we think the court was powerless to adjudicate that she take the fee. She had no such community of interest with her children as to authorize partition. The judgment of the court of appeals will be reversed and the judgment of the district court affirmed. CONVEYANCE, WHETHER DEED OR WILL.-An instrument in form a deed, which conveys an interest in praesenti, though to be enjoyed in possession in futuro, is operative as a deed and not as a will: See the monographic note to Wilson v. Carrico, 49 Am. St. Rep. 220. PARTITION.-A TENANT FOR LIFE is not entitled to maintain partition against_reversioners, remaindermen, or others having a future conditional interest: See the monographic note to Aydlett v. Pendleton, 32 Am. St. Rep. 778; Deshong v. Deshong, 186 Pa. St. 227, 65 Am. St. Rep. 855. CLARK V. SKEEN. NEGOTIABLE INSTRUMENTS-STIPULATION NOT AFFECTING NEGOTIABILITY.-A note for the payment of a sum certain, at a fixed date, is negotiable, although it stipulates that upon default in the payment of interest the whole amount should become due at the option of the holder and then draw a greater rate of interest. NEGOTIABLE INSTRUMENTS STIPULATION NOT AFFECTING NEGOTIABILITY-EXCHANGE.-A note for the payment of a sum certain, with current exchange on a place other than the place of payment, is negotiable. NEGOTIABLE INSTRUMENTS - PRESUMPTION FROM POSSESSION.-BURDEN OF PROOF.-Possession of a negotiable note properly indorsed is prima facie evidence that the holder is the owner thereof, that he acquired it in good faith and for value in the usual course of business before maturity, without notice of any circumstances impeaching its validity. The burden of proof is on the drawer of the note to show to the contrary. Action to recover upon the following note: "Five years after date, for value received, we promise to pay to the order of the Jarvis-Conklin Mortgage Trust Company, at its office in Kansas City, Missouri, three thousand ($3,000) dollars, lawful money of the United States, with interest thereon at the rate of six per cent per annum, payable semi-annually on the first days of January and July, in each year, according to the tenor and effect of the interest notes of even date herewith and hereto attached. Both principal and interest payable with New York exchange. This note is to draw interest from date at the rate Am. St. Rep., Vol. LXXVIII-22 of twelve per cent per annum if either principal or interest remain unpaid ten days after date. At the option of the holder after any of said interest notes remain due and unpaid ten days, the whole of the principal and interest may be declared immediately due and payable. This note is given for an actual loan of the above amount, and is secured by a mortgage deed of even date herewith, which is the first lien on the property therein described." Judgment for the defendants, and plaintiff appeals. Beardsley & Gregory, for the plaintiff in error. W. W. S. Snoddy and E. C. Wilcox, for the defendants in error. 527 JOHNSTON, J. In the course of the trial the district court, in ruling on the testimony and instructing the jury, held that the note copied in the foregoing statement is not a negotiable instrument, and the determination of this question will dispose of, or render unimportant, a number of other questions discussed by plaintiff in error. The negotiability of the paper appears to have been challenged on two grounds, and 528 the first is that it contains a stipulation that upon default in the payment of interest the whole amount shall become due and then draw a greater rate of interest. Stipulations like these are not inconsistent with negotiability. According to mercantile law, negotiable paper is required to be certain as to time and amount, but the note in question, as will be observed, fixes a certain time for payment, and the fact that it may become due at an earlier time depends upon the maker himself. Stipulations somewhat similar were contained in the notes and mortgages under consideration in Holden v. Clark, 16 Kan. 346, and yet it was held that the paper was negotiable, and that an innocent and bona fide purchaser took the same freed from the equities existing between the original parties. In Carlon v. Kenealy, 12 Mees. & W. 139, it was held that a note payable in installments, subject to a condition that upon default being made in the payment of the first installment the greater amount should become due, is negotiable, and in deciding the case it was said that "almost every note payable in installments has such a condition. It is not a contingency. It depends upon the act of the maker himself, and on his default it becomes a promissory note for the whole amount." In Dobbins v. Oberman, 17 Neb. 163, the note contained a provision that it should be due at a stated time, and might become |