The opinion
Clark, J.
having stated the case, proceeded: The only question raised by the appeal is the construction of the deed, and whether, under it, the defendant has any personal interest or holds solely as trustee for his children.
*186 On a careful perusal of the deed, it is incapable of any construction other than a conveyance to Carter and his heirs — not as trustee for his children. The recital therein as a motive for the conveyance, of a desire and a former promise to provide for the grantee’s children, cannot control the plain expressions of the deed, especially in view of the sole consideration being recited to be services rendered and to be rendered to the grantor by the grantee. This, it is true, would not control if the deed had been made in fact to the grantee in trust for his children; 'but the language is not capable of that construction. The deed is a conveyance of a half-interest in the land described therein, and specifies the trusts and conditions as, “first, liability of fund for certain charges; second, in case of death of either party the survivor to hold moiety of deceased for his heirs; third, subject to actual expenditures,” &c.; ’and on these trusts the conveyance is to Carter and his heirs in fee. The intention that Carter should hold for his children is not expressed in the deed anywhere.
The provision in the deed, “All proceeds received by either shall be immediately divided between the parties entitled, after paying expenses,” is a contract between the parties, and matters arising thereon, whether legal or equitable, may be pleaded as a counterclaim to the plaintiff’s cause of action, which arose upon contract. In such case the counterclaim need not arise out of the same transaction if it existed at the commencement of the action. The Code, § 244, subsection 2.
No Error.