72 Me. 298 | Me. | 1881
The plaintiff’s right to maintain this action must depend ultimately upon the construction to be given to the deed or instrument under which she claims title, and upon the force and effect of the terms used therein to define the interest which she acquired by virtue thereof.'
Our statutes (R. S., c. 73, § 1,) provide that "a person owning real estate and having a right of entry into it, whether seized of it or not, may convey it, or all his interest in it, by a deed to be acknowledged and recorded as hereinafter provided.” Detailed regulations as to the mode of execution and as to the force and effect of conveyances thus made and recorded, follow this general provision in some thirty sections, more or less. Can it be doubted ■ that ■ under such statutes the owner of real estate can convey in the manner prescribed, such part or portion of his estate as he and his grantee may agree, subject only to those restrictions which the law imposes as required by public policy, but relieved from the technical doctrines which arose out of ancient feudal tenures, and all the restrictive effect which they had upon alienations. Why prevent the owner in fee simple from agreeing with his grantee (and setting forth that agreement in his conveyance) as to the time when, and the conditions upon which, the instrument shall be operative to transfer the estate from one to the other?
In substance our law now says to a party having such an interest in real estate as is mentioned in R. S., c. 73, you may convey that interest or any part thereof in the manner herein
In the discussion of the effect of the statute of uses and of our own statutes regulating conveyances of real estate In Wyman v. Brown, 50 Maine, 139, (a leading case upon the validity of conveyances under which the grantee’s right of possesssion was to accrue not upon delivery of the deed but at some future day), WaltoN, J. remarks : "We are also of opinion that effect may be given to such deeds by force of our own statutes, independently of the statute of uses. Our deeds are not framed to convey a use merely, relying upon the statute to annex the legal title to the use. They purport to convey the land itself, and being duly acknowledged and recorded, as our statutes require, operate more like feoffments than like conveyances under the statute of uses.” In this connection he quotes Oliver’s Conveyancing, touching the operation and properties of our common warranty deed to the effect that in the transfer authorized by the statute in this mode, "the land itself is conveyed as in a feoffment except that livery of seizin is dispensed with upon complying with the requisitions of the statute, acknowledging and recording, substituted instead of it.”
And lie concludes that deeds executed in accordance with the provisions of our statutes and deriving their validity therefrom may be upheld thereby, as well as under the statute of uses, notwithstanding they purport to convey freeholds to commence at a future day.
In other words the mere technicalities of ancient law are dispensed with upon compliance with statute requirements. The acknowledgment and recording are accepted in place of livery of seizin, and it is competent to fix such time in the future as the parties may agree upon as the time when the estate of thq grantee shall commence. No more necessity for limiting one estate upon another, or for having an estate (of some sort) pass immediately to the grantee in opposition to the expressed intention of the parties.
The feoffment is to be regarded as faking place, and the livery of seizin as occurring at the time fixed in the instrument, and the
The defendant, while he does not controvert the doctrine of Wyman v. Brown, insists that nothing passed by the deed of James Abbott to his wife, because according to its terms it was left uncertain whether the instrument would ever take effect as a conveyance, that not even a contingent remainder which the plaintiff claims, passed when the deed was made and delivered, that it amounts at most, to a mere executory agreement, and any recognition of its validity is contrary to public policy, because it is an attempt to evade the statutes regulating the making and execution of wills. But the instrument was duly executed by the defendant’s testator, a man capable of contracting, and having an absolute power of disposition over his homestead farm, subject only to the rights of his existing creditors. It -was duly recorded so that all the world might know, what disposition he had made of a certain interest in it, and what was left in himself. If operative at all, it operated differently from a will. A will is ambulatory, revocable. Whatever passed to the wife by this instrument became irrevocably hers.
We fail to perceive that any principle of public policy, or anything in the statute of wills calls upon us to restrict the power of the owner of property unincumbered by debt, to make gifts of the same, and to qualify those gifts as he pleases, so far as the nature and extent of them are concerned. Public policy in this country has been supposed rather to favor the facilitation of transfers of title, and the alienation of estates, and the exercise of the most ample power over property by its owner that is consistent with good faith and fair dealing. The selfish principle may fairly be supposed to be, in all but exceptional cases, strong enough to prevent too lavish a distribution of a man’s property by way of gift.
In substance the grantor says to the grantee, I give you this conveyance made and executed in the maimer prescribed by our statute, so that you may have an irrevocable assurance that if you outlive me the property therein described shall be yours in fee simple, from and after my decease, in like manner as if you took the same by livery of seizin on that day, under a feoffment from me, the statute provisions for a recorded deed dispensing with that ceremony. Doubtless this is all contrary to the ancient doctrine, which is thus stated in Greenleaf’s Cruise, vol. iv, p. *48 : ” A feoffment cannot be made to commence in futuro, so that if a person makes a feoffment to commence on a future day, and delivers seizin immediately, the livery is void, and nothing more
The doctrine of Wyman v. Brown is a good illustration both of the maxim, cessante ratione, cessat etiam lex, and of the changes wrought in the common law by statutory provisions.
In Virginia the doctrine that a feoffment cannot be made to commence in futuro was long ago done away with by statute. Tate’s Dig, p. 175. While it does not form part of the.decision in Wyman v. Brown, this matter underwent a careful scrutiny, and, upon full consideration, the court agreed that our statute system of registered conveyances brought about the same result here.
We are at liberty, then, to give to the language used by the grantor in a deed, its obvious meaning, without invalidating the deed, to say that it shall operate as the parties intended, and carry an estate to commence in futuro if they so agree, without the necessity of resorting to any subterfuges under which the estate thus created to commence in futuro may be recognized as
A single reading of this conveyance of James Abbott to his wife is sufficient to satisfy one that it was no paid; of the intention or expectation of either, that the wife acquired thereby any interest in the homestead farm during the life of the grantor except as expressly therein declared, to wit, a right to the " use, income and control of said premises during her life,” in case the husband deserted her (which he did not do), and besides this, an irrevocable right to the same in fee simple, in case she survived her husband, her estate to commence at his decease.
The language of the deed differs widely from that of any of the conveyances which have been sustained as passing an estate in remainder to the grantee with a life-estate in the grantor reserved. If the object of the draftsman had been to exclude the idea that the conveyance should have any force until the time therein appointed, in other words, to have it take effect as a feoffment made at the time fixed in futuro, to convey, as of that dale, an estate in fee simple and to have no other operation, it is difficult to see how he could have made that object plainer in words.
" This deed is not to take effect and operate as a conveyance until my decease, and, in case I shall survive my said wife, this deed is not to be operative as a conveyance ... if she shall survive me, then, and in that event only, this deed shall be operative to convey to my said wife said premises in fee simple.” Note also the language of the habendum and covenants. A conveyance thus framed cannot give the rights of a remainder-man presently to the grantee, nor so operate forthwith, as a conveyance as to convert the holding- of the grantor from that time forward into a mere tenancy for life.
Such language bears little resemblance to the stipulation in the deed which was under consideration in Drown v. Smith, 52 Maine, 142, "but the said (grantee) is not to have or take possession till after my decease; and I do reserve full power and control over said farm during my natural life.”
If the testimony of Lapham and Palmer represents truly the acts of which the plaintiff complains as waste, her suit, were it otherwise well founded, would fail for want of proof of anything which amounts to waste according to the best considered decisions in this country. See Drown v. Smith, ubi supra, and cases there cited.
Plaintiff nonsuit.