27 N.C. 30 | N.C. | 1844
Ejectment. A verdict of guilty was submitted to by the defendant, subject to the opinion of the court upon the legal validity of the deed under which she set up title; and it was agreed by the parties that if that deed should be deemed sufficient in law the verdict might be set aside and a nonsuit entered. The deed was objected to on the ground that there is no consideration moving the donor, stated upon its face. The court being of opinion that a deed of gift such as the one in question might operate without a consideration as against a volunteer (which the lessor of the plaintiff was admitted to be), set aside the verdict and entered a nonsuit. From this judgment the plaintiff appealed to the Supreme Court.
The following is, in substance, a copy of the deed: *30
"STATE OF NORTH CAROLINA — LINCOLN COUNTY.
"Friday, 14 March, 1831.
"This day I, Adam A. Springs, have given unto Elizabeth Hanks, the daughter of Thomas Hanks of this county, during her natural life, and at her death to her two children, Lewis J. Bertrand and Parmelia, and their heirs and assigns forever, a certain tract or parcel of land (then describing it), which said lands I hereby warrant and defend to (31) the said Elizabeth Hanks and her two children above mentioned, according to the tenor above, against all manner of claims except my own during my natural life, after which the warranty is hereby confirmed forever. Witness, etc. (Signed and sealed by Adam A. Springs.)" The defendant's counsel contends that a deed of bargain and sale, without any consideration either good or valuable, will transfer the legal freehold in lands to the donee as against the donor and all volunteers; and he has cited Touchstone, ch. 10, p. 221, where the author says that "These words (bargain and sale) do signify the transferring the property of a thing from one to another upon valuable consideration by way of sale. And herein only it doth differ from a gift, that is, agift may be without any consideration or cause at all." If the counsel had observed that the author had, on the same page, just concluded his observations upon the law of "feoffment," he must have clearly understood him, when the aforesaid remarks were used, to allude only to that mode of conveyance (feoffment) when he says a gift of a freehold estate in land may be good without consideration; for the author says (32) that the feoffment (donatio feodi) is the gift or grant of lands by livery of seizin and possession of the thing given; and from hence, he says, comes the word enfeoff; for by this word, and the wordsgive and grant, is this kind of conveyance most commonly made; but liveryof seizin is the operative and the essential part of the assurance. And no estate of freehold passes till livery of seizin is made. 1 Touch., 203 (Preston's ed.). A consideration given by the purchaser was never necessary to complete any species of common-law conveyances which operated by the actual transmutation of possession. The purchaser was bound only to perform the feodal services incident to the tenure of the land possessed by him. When the ceremonies were performed which the law prescribed, the purchaser was either seized of a freehold estate or he was possessed of a term in the land, as was intended by the parties. But a deed of bargain and sale, even with a consideration, transferred to the bargainee no legal estate in the lands prior to the passage of the *31 statute of uses. But before that time it was a court of equity only which created a use or equitable estate in the bargainee; and this was done from motives of conscience, upon payment of a valuable consideration; and equity took exclusive jurisdiction of such uses. It was the statute of uses (27 Ch. II) which changed the equitable estate in the lands (theuse) into legal estates, but in those cases only where the grantor or some other person was seized to the use of the grantee or bargainee. The law, the statute, transferred the possession of the land to him who before had the use; and it declared that he who had the use in the land should thereafter have and hold the legal estate in the same plight and condition that he before held the use. Before this statute was passed courts of equity never declared the bargainor or covenantor a trustee for the bargainee or covenantee unless there was either a valuable consideration or a good consideration existing at the time; for these considerations only raise in equity, to the covenantee or bargainee, the use or equitable estate in the lands. Therefore, inasmuch as the statute only transferred the possession or legal estate in the lands to him who had the use in the same lands, it follows necessarily that if the bargainee or covenantee (33) has not the use in the land (and without a good or a valuable consideration no use could ever inure to such person), the statute cannot help him to the legal estate. It is very true that if the deed given to the defendant had been either upon a good or a valuable consideration, it might have been averred and proved, as no consideration is mentioned in the deed; and then a use would have been raised for the defendant and her children, which the statute would have converted into legal estates. But until that be done, no use exists in them, and of course no legal estate in the land. A. Springs never conveyed the freehold in the land to the defendant, either by any of the modes of conveyance known to the common law or under the statute of uses. The deed, in part, operated as a feoffment without livery of seizin, which created only an estate at will; and the death of A. Springs has determined that estate. The decision of the judge was, we think, erroneous, and, therefore, there must be a new trial.
PER CURIAM. Venire de novo.
Cited: Cobb v. Hines,
(34)
