19 N.J. Eq. 394 | New York Court of Chancery | 1869
The bill is for partition. íhe complainant claims title to one equal moiety or half part of the iron, zinc, and other ores, in a tract of land in the county of Sussex, known as the Ogden Mine Tract. The defendants are. seized of the fee of the whole tract, subject to the right of the complainant. This title is not disputed by the complainant; but the defendants deny the title of the complainant to one-half the ore in the tract, or to the ore in an undivided half of the tract, and deny the right to have partition.
Samuel G. T. .DeOamp was seized of the Ogden Mine Tract in 1817. On the 26th day of March in that year, he, with His wife, conveyed it, with other property, to W. Darrah and W. P. Kerr, in fee, in trust to sell and pay his creditors out of the proceeds. In May, 1830, W. Darrah died, leaving Id. T. Darrah, his eldest son, and other children, surviving. On the 13th day of April, 1833, Kerr, the surviving trustee, by deed, reciting the conveyance in trust, and that he conveyed as surviving trustee, conveyed the Ogden Mine Tract
On the láth day of October, 1836, Henry T. Darrah, with two other children of W. Darrah, deceased, by deed reciting the conveyance by Kerr, and in consideration of $1> did grant) bargain, sell, alien, enfeoff, convey, and confirm, unto Edsall and Fowler, the said Ogdeh Mine Tract. S. Fowler, by deed dated August 25th, 1843, conveyed to his son, S. Fowler, jun., the undivided half of this tract, with covenabts against his own acts; and S. Fowler, jun., on the 3d of February, 1847, conveyed this undivided half to Edsall. The title of Edsall in the tract, was by several mesne conveyances vested in the defendants.
The defendants contend, first: That the deed from De Gamp to Kerr and Darrah, conveyed the title to them as tenants in common, and that on Darrah’s death, the title to one-half vested in his son Henry, and did not survive to Kerr; that the deed from Kerr to Fowler was void, as one trustee cannot alone execute a trust, or convey the part of which the legal title is vested in him, without his co-trustee joining; and that as the conveyance from H. T. Darrah to Fowler was not until after Fowler’s deed to Witherill and Ames, no title to this lot or the ores in it, passed by that deed. Secondly : That if any title did pass to Fowler and
The first question is, whether the deed from DeCamp com veyed this land to Darrah and Kerr as tenants in common, or joint tenants. It was five years after the act of 1812, {Nix. Big. 150, § 34, Rev. Laws 650,) which declares that no estate shall be considered in joint tenancy, unless it be expressly set forth in the grant creating it, that it is the intention of the parties to create an estate in joint tenancy, and not an estate of tenancy in common. This deed contains no such words; it is simply to the grantees, “ their heirs and assigns,” “to have and to hold to them, their heirs and assignsand if this statute is applicable to lands conveyed in trust, this tract by force of it was vested in them as tenants in common. The words of the statute are general, and clearly include grants or conveyances to trustees. There is nothing in the statute to limit it so as to exclude trusts. There is nothing in the preamble of the statute to limit the natural meaning ©f the words; it simply recites that, “ Whereas, estates granted to a plurality of persons have heretofore been held to be estates in joint tenancy,” therefore it was enacted, &c. It shows that the object was to change the rule, and that the words which before created a joint tenancy should thereafter create a tenancy in common. The object, no doubt, was to give to tho words used the effect which most persons would suppose they had. When lands were conveyed to two persons and their heirs, few sup
The act relative to trustees, passed April 1st, 1868, (Nix. Dig. 1006,) was intended to change this rule in the case of trustees, and had it been passed before 181?, would have made this an estate in joint tenancy. This act was intended
The comparison made in the preamble of the act of 1868, between the act directing the descent of real estate, and the act of 1812, shows a want of attention to the expression in the act of descents, by which it is held not to apply to trust estates. The first words in the first section of the act of descents- are, “ when any person shall die seized of any lands in his or her oxon right, in fee simple.” By force of these words the statute cannot be applied to persons who die seized in trust for others, and not in their own right. At common law a power in trustees, when coupled with an interest or estate in the trust property, survived, but this was because the estate survived. It is so laid down by Lord Coke. Co. Ditt. 113 a. And this is the authority referred to in all subsequent cases on this subject. A naked power without interest never survived. Lane v. Debenham, 11 Hare 188.
The deed from DeOamp, must be held to have conveyed this tract to Darrah and Kerr, as tenants in common, and upon the death of W. Darrah, his undivided half descended to his eldest son, H. T. Darrah, who became seized as tenant in common with Kerr, in trust for the purposes in the deed of DeCamp; that is, in trust to sell this tract, and with the proceeds to pay creditors.
This power must be exercised by both trustees; one alone cannot execute it. The trust is, to sell the whole property, or rather the whole estate, as it may be sold in parcels. A deed
If this be law, then at the date of the deed from Eowler to Witherill and Ames, he owned no part or interest in the tract, or at best was a mere trustee of the legal estate. And the general words in this deed, “ also all ores on or within the lands of said Fowler in Sussex county,” did not convey any right in this tract, as' it did not belong to Fowler, at least in the sense there intended. It would not be pretended that they would convey the ores in lands which he held as trustee for a stranger. Nor did the subsequent deed from Henry T. Darrah, if it'be held sufficient to complete the title in Fowler and Edsall, aid Witherill and Ames. Fowler’s deed to them warranted ’the described lands and- premises only, and the covenants cannot be held to apply to any other lands that he might own, or to imply that he owned any other. The grant of ores could not be extended, to lands that he had agreed to purchase, and which were afterwards conveyed to him. The title, then, which he acquired by the conveyance being made efficacious by the deed from H. T. Darrah, could not pass to Witherill and Ames by estoppel, and, therefore, enured to the grantees, Edsall and Fowler, for their own benefit, and is now held by the defendants.
The third position of the defendants is, that if the conveyance to Edsall and Fowler was valid, Fowler being a tenant in common, could not, as against Edsall, convey his right to any specified portion of the premises, or any right in the same, to the prejudice of his co-tenant. This seems to be the established rule of law. Such deed will be held to bind the grantor, but as to his co-tenant it is void, The reason is, that it would prejudice the right of the co-tenant to a partition. Each
On both grounds, I feel compelled to hold that the complainant has no title to this ore, that is valid as against' the 'defendants, or that will entitle the complainant to a partition, or any other relief as against them.
The bill must be dismissed.