Chalmers, C. J.,
delivered the opinion of the court.
This is a bill filed by the children of John Robinson and of his wife, Sarah Lowe Robinson, deceased, seeking to recover from Payne &Co. certain lands obtained by the latter under and by virtue of a judgment confessed by the father of complainants in favor of defendants. Complainants aver that these lands were bought by their father with the money of their mother, and the title taken in his name, in violation of her rights, and that therefore, by virtue of our statute, the lands were impressed with a trust in her favor, which they, as her heirs, are entitled to enforce against defendants. They claim rents for the lands,4md also ownership of a large amount of cotton, valued at 130,000, which, as they allege, belonged to them, and the proceeds of which are in the hands of defendants.
Defendants admit possession of the lands, but claim to have obtained them In consequence of credit by them extended to the father of complainants while he was clothed with the legal title, and upon the faith of his apparent ownership, and in ignorance of the wife’s'equitable claim, if any she had.
As to the cotton sought to be recovered by complainants, they admit that it was received by them, but deny that it was the property of complainants, and state that their father, from whom they received it, was credited with it on his accounts.
With reference to the lands, two questions are presented r First, Was it bought by the husband with the money of the-wife? Second, Did defendants extend credit to the husband upon the faith of the legal title held by him, and in ignorance of the wife’s equitable ownership? It was undoubtedly bought, in large part with the income arising from the wife’s property, but whether under such circumstances as thereby made it the property of the wife, or entitled her or her children to fasten the statutory trust upon it, depends upon a careful and correct ascertainment of the, facts attending its purchase, and the law applicable to those facts.
John Robinson, the father, a man of moderate means, the [706]*706owner of a plantation of a few hundred acres and perhaps a dozen slaves, intermarried, on the 26th of September, 1849, with Sarah Myra Lowe, the daughter and only child of John Lowe, one of the wealthiest planters in Madison County. Shortly after the marriage Mr. Lowe handed to Robinson $1,000, directing him to purchase with it a small tract of land adjoining his (Robinson’s) own land, and to take the deed in his wife’s name. Robinson made the investment, but took the title to himself.
In January, 1851, Lowe made to his daughter a deed conveying a plantation known as the Yalley place, with all the slaves and personal property thereon. The language and legal effect of this deed will be hereafter noted and considered. Two years after the making of this deed, — to wit, in February, 1853, — JohnLowe died intestate, his daughter, Mrs. Robinson, being his sole heir-at-law and distributee. She took by inheritance two large plantations, known respectively as the Hill and the Douglass places, together with several hundred slaves and several thousand dollars in money, all of which, including the lands, passed into the possession of her husband, who qualified as administrator. Lowe’s estate owed but few debts, of insignificant amount. Within the next six years — that is to say, between Lowe’s death, in 1853, and Mrs. Robinson’s death, on the 31st of January, 1859 —John Robinson purchased, in rapid succession, three plantations, known respectively as the De Graffenreid, the Cockrell, and the Goodloe places, taking title in each instance to himself, paying therefor, together with the slaves purchased with the De Graffenreid place, about $125,000. None of them were paid for in cash at the time of purchase, but in short annual instalments, and mostly through drafts drawn on Payne & Co., the defendants in this suit, wlio were commission merchants residing in New Orleans, and the factors of Robinson. The drafts were met by shipments of cotton from all the plantations, to wit: from Robinson’s own plantation (the Cottage place), from the plantation conveyed by Lowe to his daughter (the Yalley place), from those inher[707]*707ited. by the wife (the Douglass and Hill places), and from the places bought and held by Robinson in his own name — to wit, the De Graffenreid, Cockrell and Goodloe places ; in other words, from the proceeds or income of all the property in Robinson’s possession, including his own as well as his wife’s. Much of the income arose and was received after Mrs. Robinson’s death, and was applied to the liquidation of the indebtedness incurred to the commission merchants by reason of their payment of Robinson’s drafts. To whom did this income belong — as well that arising during the wife’s life as that received after her death? Of course, the income from Robinson’s own plantation, the Cottage place, always belonged exclusively to him ; and in so far as it went to pay for the lands purchased by Robinson in his own name, and sought here to be recovered by the wife’s heirs, no claim can be based upoii it.
The income from the place conveyed to his daughter by Lowe (the Yalley place), and from those inherited by her at his death (the Douglass and Hill places), belonged to her during her life, and after her death the income from the Hill and Douglass places certainly belonged to the husband, who was tenant by the curtesy as to them. We reject the view urged by counsel for the appellees that under the act of 1846 (Hutch. Code, 498, sect. 2, art. 7) a married woman was not entitled to the income arising from real estate inherited by her, but only to that arising from personalty or from realty acquired by gift, devise, or purchase. The word “distribution,” in sect. 1 of the act of 1839 (Hutch. Code, 496), applies both to personalty and to realty derived by descent, as is evident from its connection and from the past adjudications of this court; and by the act of 1846 (supra) the proceeds and income of such property are vested in the wife. 30 Miss. 25 ; 32 Miss. 650. The word is quite frequently so used, both in popular and in legal parlance.
The income arising from the lands purchased by Robinson in his own name (the De Graffenreid, Cockrell, and Goodloe [708]*708places) belonged, after the wife’s death, to the husband as tenant by the curtesy, even though it could be shown that they were wholly bought with her means. During her life the income would belong to her, in such proportions as her means bore to the whole price paid for the lands.
With regard to the Valley place, the income arising from it during the life of the wife, as before remarked, belonged to her. Whether that arising after her death belonged to her husband or to her children depends upon whether the former had a curtesy in the land, and this depends upon the language of the deed executed to his daughter by John Lowe.
This deed, by the premise, or granting clause, plainly conveys to Mrs. Robinson an estate in fee, by granting and aliening the land “ unto the said party of the second part, her heirs and assigns forever.” A conveyance to a grantee and his ‘ ‘ heirs ’ ’ always gives an estate in fee-simple ; and it has been said that no words are so apt and appropriate for this purpose as the word “ heirs.” 1 Washb. on Real Prop. 41— 71; 1 Shars. Bla. Comm. 470.
Immediately following the premise, or granting clause of the deed, follows the habendum, whereby it is provided that the grantees (who are Mrs.
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Chalmers, C. J.,
delivered the opinion of the court.
This is a bill filed by the children of John Robinson and of his wife, Sarah Lowe Robinson, deceased, seeking to recover from Payne &Co. certain lands obtained by the latter under and by virtue of a judgment confessed by the father of complainants in favor of defendants. Complainants aver that these lands were bought by their father with the money of their mother, and the title taken in his name, in violation of her rights, and that therefore, by virtue of our statute, the lands were impressed with a trust in her favor, which they, as her heirs, are entitled to enforce against defendants. They claim rents for the lands,4md also ownership of a large amount of cotton, valued at 130,000, which, as they allege, belonged to them, and the proceeds of which are in the hands of defendants.
Defendants admit possession of the lands, but claim to have obtained them In consequence of credit by them extended to the father of complainants while he was clothed with the legal title, and upon the faith of his apparent ownership, and in ignorance of the wife’s'equitable claim, if any she had.
As to the cotton sought to be recovered by complainants, they admit that it was received by them, but deny that it was the property of complainants, and state that their father, from whom they received it, was credited with it on his accounts.
With reference to the lands, two questions are presented r First, Was it bought by the husband with the money of the-wife? Second, Did defendants extend credit to the husband upon the faith of the legal title held by him, and in ignorance of the wife’s equitable ownership? It was undoubtedly bought, in large part with the income arising from the wife’s property, but whether under such circumstances as thereby made it the property of the wife, or entitled her or her children to fasten the statutory trust upon it, depends upon a careful and correct ascertainment of the, facts attending its purchase, and the law applicable to those facts.
John Robinson, the father, a man of moderate means, the [706]*706owner of a plantation of a few hundred acres and perhaps a dozen slaves, intermarried, on the 26th of September, 1849, with Sarah Myra Lowe, the daughter and only child of John Lowe, one of the wealthiest planters in Madison County. Shortly after the marriage Mr. Lowe handed to Robinson $1,000, directing him to purchase with it a small tract of land adjoining his (Robinson’s) own land, and to take the deed in his wife’s name. Robinson made the investment, but took the title to himself.
In January, 1851, Lowe made to his daughter a deed conveying a plantation known as the Yalley place, with all the slaves and personal property thereon. The language and legal effect of this deed will be hereafter noted and considered. Two years after the making of this deed, — to wit, in February, 1853, — JohnLowe died intestate, his daughter, Mrs. Robinson, being his sole heir-at-law and distributee. She took by inheritance two large plantations, known respectively as the Hill and the Douglass places, together with several hundred slaves and several thousand dollars in money, all of which, including the lands, passed into the possession of her husband, who qualified as administrator. Lowe’s estate owed but few debts, of insignificant amount. Within the next six years — that is to say, between Lowe’s death, in 1853, and Mrs. Robinson’s death, on the 31st of January, 1859 —John Robinson purchased, in rapid succession, three plantations, known respectively as the De Graffenreid, the Cockrell, and the Goodloe places, taking title in each instance to himself, paying therefor, together with the slaves purchased with the De Graffenreid place, about $125,000. None of them were paid for in cash at the time of purchase, but in short annual instalments, and mostly through drafts drawn on Payne & Co., the defendants in this suit, wlio were commission merchants residing in New Orleans, and the factors of Robinson. The drafts were met by shipments of cotton from all the plantations, to wit: from Robinson’s own plantation (the Cottage place), from the plantation conveyed by Lowe to his daughter (the Yalley place), from those inher[707]*707ited. by the wife (the Douglass and Hill places), and from the places bought and held by Robinson in his own name — to wit, the De Graffenreid, Cockrell and Goodloe places ; in other words, from the proceeds or income of all the property in Robinson’s possession, including his own as well as his wife’s. Much of the income arose and was received after Mrs. Robinson’s death, and was applied to the liquidation of the indebtedness incurred to the commission merchants by reason of their payment of Robinson’s drafts. To whom did this income belong — as well that arising during the wife’s life as that received after her death? Of course, the income from Robinson’s own plantation, the Cottage place, always belonged exclusively to him ; and in so far as it went to pay for the lands purchased by Robinson in his own name, and sought here to be recovered by the wife’s heirs, no claim can be based upoii it.
The income from the place conveyed to his daughter by Lowe (the Yalley place), and from those inherited by her at his death (the Douglass and Hill places), belonged to her during her life, and after her death the income from the Hill and Douglass places certainly belonged to the husband, who was tenant by the curtesy as to them. We reject the view urged by counsel for the appellees that under the act of 1846 (Hutch. Code, 498, sect. 2, art. 7) a married woman was not entitled to the income arising from real estate inherited by her, but only to that arising from personalty or from realty acquired by gift, devise, or purchase. The word “distribution,” in sect. 1 of the act of 1839 (Hutch. Code, 496), applies both to personalty and to realty derived by descent, as is evident from its connection and from the past adjudications of this court; and by the act of 1846 (supra) the proceeds and income of such property are vested in the wife. 30 Miss. 25 ; 32 Miss. 650. The word is quite frequently so used, both in popular and in legal parlance.
The income arising from the lands purchased by Robinson in his own name (the De Graffenreid, Cockrell, and Goodloe [708]*708places) belonged, after the wife’s death, to the husband as tenant by the curtesy, even though it could be shown that they were wholly bought with her means. During her life the income would belong to her, in such proportions as her means bore to the whole price paid for the lands.
With regard to the Valley place, the income arising from it during the life of the wife, as before remarked, belonged to her. Whether that arising after her death belonged to her husband or to her children depends upon whether the former had a curtesy in the land, and this depends upon the language of the deed executed to his daughter by John Lowe.
This deed, by the premise, or granting clause, plainly conveys to Mrs. Robinson an estate in fee, by granting and aliening the land “ unto the said party of the second part, her heirs and assigns forever.” A conveyance to a grantee and his ‘ ‘ heirs ’ ’ always gives an estate in fee-simple ; and it has been said that no words are so apt and appropriate for this purpose as the word “ heirs.” 1 Washb. on Real Prop. 41— 71; 1 Shars. Bla. Comm. 470.
Immediately following the premise, or granting clause of the deed, follows the habendum, whereby it is provided that the grantees (who are Mrs. Robinson “ and her heirs and assigns forever” ) “ shall have and hold the above-mentioned negroes, etc., so long as she may live; and in case of her death, said land and negroes to pass to the use and benefit of her child or children ; and in case of there being no offspring, she is at liberty to will away the above-described land and negroes as she may wish.”
This seems plaiuly an attempt to convert the absolute fee conveyed by the granting clause into a life-estate by thq habendum, which cannot be done. From the earliest times the decisions are uniform that where there is a clear and mianifest repugnance between the premise and the habendum clauses of a deed, the former must prevail; and the doctrine is no less well recognized and maintained now than in the days of Coke and Sir Matthew Hale.
[709]*709It gives way, of course, as all rules of construction must, where there is one clear and unmistakably expressed intention. Rules of construction are intended only to assist in ascertaining intention, and must not be perverted into defeating it; but where two repugnant intentions have been expressed with equal clearness in the instrument, some rule for construing it must be adopted. The wisdom of the rule is less important than its certainty, since men may differ as to the question of wisdom, but cannot err when the standard is definite and unmistakable, however arbitrary ; .indeed, the more arbitrary it is, the easier will it be of ascertainment. The particular rule under consideration here will not apply where but one plain intention can be deduced from the instrument as a whole, and that intention must prevail whether it be discovered in the first or last clause of the instrument; nor has it any application where no particular estate is expressed in the granting clause, so that the habendum may be regarded as fixing that which was before uncertain, or where the habendum enlarges the estate conveyed by the premise, or, speaking generally, wherever it can fairly be said that the effect of the habendum is merely to enlarge, or explain, or qualify the estate granted, without contradicting or nullifying it. But these are exceptional cases, or, to speak more properly, cases which do not really fall within the rule. The rule simply is, that where there is an irreconcilable conflict between the two clauses, the granting clause must prevail.
Such, we think, is the case before us. And hence it follows that the deed executed by Lowe to his daughter conveyed to her a fee-simple estate in the Valley place; that upon her death her husband held it as tenant by the curtesy, and was entitled, as such, to the rents and profits. 1 Shep. Touch. 74-76; 3 Washb. on Real Prop. 319, 372-374; 1 Shars. Bla. Comm. 625 ; 4 Kent’s Comm. 468.
The lands in controversy, then, were bought in part with money arising from the husband’s own property, in part with the proceeds of the wife’s property, which, accruing during [710]*710her life, belonged to her, and in part with proceeds of the same accruing after her death, which belonged to the husband. The title to ail of it was taken in his name.
Can the wife’s heirs successfully assert a resulting, or rather the statutory trust upon this laud, or such proportionate part of it as they can show to have been bought with her means ? It can only be done, so far as her claim is based upon the statute, as to so much of the income as was invested after the adoption of the Code of 1857, when for the first time was adopted in our law the provision that “if the husband shall purchase property in his own name with the money of the wife, he shall hold the same as trustee for her use, but such trust shall be void as against creditors of the husband who contracted or gave credit in consequence of the possession of such property.” Code 1857, p. 336, art. 24.
This provision has several times undergone investigation in this court, and was considered at some length in Brooks v. Shelton, 54 Miss. 358.
Before its adoption, the wife or her heirs could only maintain against the husband a claim for a resulting trust in property bought with her money upon the same terms as against a stranger. One of the cardinal requirements of the ordinary resulting trust, apart from any statute, is that the money invested must have been furnished contemporaneously with, or in advance of the purchase of the property upon which it is sought to fasten the trust.
Only the lands, therefoi’e, which were bought with the proceeds of the wife’s property between the adoption of the Code of 1857 and her death, on the 31st of January, 1859, came within the statutory trust. After her death the income belonged to the husband. Before the adoption of the Code of 1857 we had no such principle in our law, and the wife’s claim of a resulting trust rested upon the same principle as that of a stranger, and had to be established by the same evidence. Whether the fact that the husband had general charge of the wife’s estate would meet the requirement of a precedent ad[711]*711vanee of the money, when in fact the land was paid for with income arising after the purchase, is not necessary here to be decided.
It is insisted by the appellees, and held by the chancellor, that the bill was not maintainable at all, because of that provision of the statute which declares that ‘ ‘ neither the husband nor his representatives shall be liable to account to the wife or her representatives for the rents, profits, or income arising from the separate property of the wife, after the expiration of one year from the time of receiving the same ; and in support of this view the case of Thomson v. Hester, 55 Miss. 670, is relied on.
Inasmuch as the present suit was brought more than one year after the reception of the wife’s income, and portions of that income were probably held by the husband in specie more than one year before its investment in the land, it is insisted that to allow a maintenance of the bill would be to violate the provisions of this short and peremptory statute of limitations.
We cannot adopt this view. This clause of the statute has no relation to the clause which makes the husband the trustee of the wife as to all property bought with her money. It relates alone to a money liability sought to be imposed upon him or his estate by reason of his consumption of her income. Such liability must be asserted within a year, so as not to ruin him or bankrupt his estate by a claim for income which he has been permitted to use for his own expenses, or in the support of the family. The poor husband of a wealthy wife naturally lives in a style beyond that which his own circumstances would justify. For all family and personal expenses he is primarily liable. If the wife objects to this style of life, or to the application of her income towards maintaining it, she must give him timely admonition by promptly demanding her income at the end of each year. If she fails to do this, she will not be allowed after a long lapse of years to overwhelm him with ruin or absorb his estate, to the detriment of his creditors, by propounding her own stale demands. She will be conclusively [712]*712held to have consented to his appropriation of her income. Such was the origin and the reason of the equity rule on this subject, and such is the meaning of our statute.
But if the wife’s income is invested by the husband in property in his own name, no principle of equity or justice would suggest that he be permitted to retain it, save by the expiration of a period after the dissolution of the marriage relation which would give him a title by limitation. He has simply robbed her to enrich himself, and when she claims her own she attempts to impose no liability upon him or his estate. She seeks only to reclaim her own property, and even this she is debarred from if third persons have extended credit to him on the faith of the property. In no event, therefore, can anybody suffer injustice by the enforcement of her rights. In the present case the chancellor found as a matter of fact that defendants had extended credit to Robinson on the faith of this property in ignorance of the rights of the wife, and in this finding we agree with him. This is fatal to complainants’ bill. If Payne is to be believed, there can be no doubt of this fact, and there seems nothing in the record to show that he swore falsely. Indeed, the very meagre proof on the subject rather tends to confirm than to overthrow his testimony on this point.
With regard to the two hundred and thirty-six bales of cotton, worth $30,000, the proceeds of which are claimed by the bill, and which is known in the record as the “ Jiggitts cotton,” complainants have failed to convince us, as they failed to convince the chancellor, that it was their property. We think that it was by Robinson’s factors rightfully appropriated to his accounts.
Decree affirmed.