44 N.C. 343 | N.C. | 1853
The lessor of the plaintiff, upon the intermarriage of the defendant with his daughter, Cartha, had executed to him a paper-writing, of which the material words were as follows:
"Know all men by these presents, that I, Enoch Cobb, for the inconsideration of the good will, favor and affection that I bear to rewards my son and law, James M. Hines, I give to the said James M. Hines the following Negroes, etc. In witness whereof I hereunto set my hand and seal, this 23 February, 1839.
(Signed.) E. Cobb. [Seal.] *321
"I also place and set over and appoint James M. Hines agent of the hereafter named property, to be to use and benefit of my daughter, Cartha, and the lawful heirs of her body to them and their successors — to wit, Patsy, Winny, Elick, little Kedar, Abram, and Smithea, (344) and the following tracts of land [describing them], in witness whereof I hereunto set my hand and seal this 23 February, 1839.
(Signed.) E. Cobb. [Seal.]"
Witness: A. G. Jernigan, Thomas (his + mark) Dail.
In May, 1852, the lessor of the plaintiff demanded of the defendant possession of said land, and upon his refusal to surrender possession of the same, this action was commenced.
Cartha, named in the paper-writing, died some two or three years before the suit was instituted, leaving three children surviving her, and now living. Said paper-writing was duly acknowledged at the November Term, 1840, of Wayne County Court, and has been duly registered.
Upon the case agreed, from which the above is an extract, the court gavepro forma judgment for the plaintiff, and the defendant appealed to the Supreme Court. 1. The consideration here is what is commonly called good, being of that blood. It appears on the face of the deed, and is therefore sufficiently declared. 2 Saund. U. and T., 81; 7 Rep., 133; Bedell's case; 2 Wilson Rep., 22; 2 Roll Abr., 782, pl. 3; 2 Shep. Touch, 512.
2. There being no valuable consideration, the words operate as a covenant to stand seized. The words of a deed may be transposed, so as to give it validity, where the intent that it should operate is manifest.Kea v. Robeson,
Both bargains and sales and covenants to stand seized, operate to transfer the legal title by virtue of the statute of uses. The only difference between them is in the consideration. Hence a deed may operate to make both kinds of assurance; as, if A. covenant that in consideration that B. is his son, he shall have a certain tract of land for life, and that *322 C. has paid $100, he shall have it in fee. Burton on Real Prop., sec. 145; 1 Rep., 145; 1 Shep. Touch., 221.
The covenant must be by words de presenti, and the words of this deed are such, clearly. Do these words make a covenant? A covenant, "is the agreement or consent of two or more, by deed in writing, whereby one of the parties doth promise to the other that something is done already, or shall be done afterwards." 1 Shep. Touch., chap. 7, p. 160, et seq., and notes 9 and 10; Platt on Cov. (3 L. Lib.). A deed poll may create them as effectually as an indenture. 1 Shep. Touch., 162.
No formal words are necessary to create either a bargain and sale, or a covenant to stand seized. 2 Saund. U. and T., 49, and 79, 80. In the latter, the word covenant is not necessary. Pordage v. Cole, 1 Saund. Rep., 319. "Agreed between A. and B. that B. shall pay A. a sum of money for his lands on a particular day"; these words amount to a covenant by A. to convey the lands, and are words of the future. So, if the words had been, "It is hereby witnessed that A. has paid B. $100, and A. is to have a certain tract of land — or a certain tract of land is to be the property of A."; these words make a covenant depresenti, and raise a present use which the statute executes. If one at common law assigns a chose, though nothing passes, it is a good covenant; Bac. Abr. Cov., Letter A.; Siegnoret v. Noguire, 2 Ld. Ray., p. 1242; Frontin v. Small, 2 ibid., p. 1418. Assignavit makes the covenant. If A. make a deed to B. in these words, "I have in my custody one writing obligatory, being the property of B., in which, etc., and I will be ready at all times, when required, to redeliver the said writing to the said B." — this is a covenant by force of the words — I will be ready at all times, etc. Roll's Abridg., 519. Covenant that A. shall have a piece of land for five years is a good lease. 1 Shep. Touch., 161, (346) et seq., and notes 9 and 10. Covenant with one that if he marry my daughter he shall have my land; from the time of marriage he shall have it; 2 Shep. Touch., 512; or, that one shall have my land, it is a good bargain and sale; 2 Shep. Touch., 514, et seq. Covenants are to be always taken most strongly against the covenantor, and most in advantage of the covenantee; and according to the intent of the parties. 1 Shep. Touch., 166.
If the words had been: "The hereafter named property in consideration of five dollars is to be to the use and benefit of my daughter and the lawful heirs of her body," the conveyance would have been good as a bargain and sale. Therefore if blood is inserted in lieu, the deed becomes a good covenant to stand seized; 2 Shep. Touch., 511; 1 ibid., 224. See cases cited, 2 Saund. U. and T., 79, 80, and the cases cited in note. See, also,Bronson v. Paynter,
If the covenant is not with Mrs. Hines, it is with the trustee, her husband, and the consideration of marriage, which extends to him, and of blood which extends to his wife, is sufficient to vest the estate in him, for her use; 2 Shep. Touch., 523. And this makes him both trustee and tenant by the curtesy. The deed under which the defendant claims, and by virtue of which he seeks to defeat the recovery of the plaintiff's lessor, is, as must be admitted, very informal. It is untechnical, ungrammatical, and totally at variance with all the recognized rules of orthography, and yet it may be valid, if "there be sufficient words to declare clearly and legally the party's meaning." 2 Black. Com., 298. It is our duty now to inquire whether the words contained in this deed be sufficient to enable us to pronounce what is the party's meaning. It may facilitate our inquiries to recur to fundamental principles, and ascertain what rules have been established by the sages of the law, for the construction of deeds. The three following given by Blackstone in his Commentaries (2 Black. Com., 379), and supported by many authorities both before and since his day, will be sufficient for our purpose. The (347) rules are:
1. "That the construction be favorable and as near the minds and apparent intents of the parties as the rules of law will admit. For the maxims of the law are, that verba intentioni debent inservire; and benigneinterpretamur chartas propter simplicitatem laicorum. And therefore the construction must also be reasonable, and agreeable to the common understanding."
2. "That quoties in verbis nulla est ambiguitas ibi nulla expositiocontra verba fienda est; but that, where the intention is clear, too minute a stress be not laid on the strict and precise signification of words; namqui haeret in litera, haeret in cortice. And another maxim of law is, thatmala grammatica non vitiat chartam; neither false English nor bad Latin will destroy a deed."
3. "That the construction be upon the entire deed, and not merely upon disjointed parts of it. Nam ex antecedentibus et consequentibus fit optimainterpretatio. And therefore that every part of it be, if possible, made to take effect, and no word but what may operate in some *324
shape or other. Nam verba debent intelligi cum effectu, ut res margisvaleat quam pereat. See Smith v. Parkhurst, 3 Atk. Rep., 135; Preston Ed. of Shep. Touch., Vol. 1, p. 87; Bronson v. Paynter,
Now, if we apply these rules and the principles plainly deducible from them, to the deed under consideration, we think that the intention of the parties may easily be ascertained from the words which they have employed. In the first part of the instrument, the donor gives, in language which admits of no doubt, certain slaves to his son-in-law, declaring that he so gives them because of the good will, favor, and affection which he bears towards him. He then proceeds: "I also place and set over and appoint James M. Hines (the defendant, his son-in-law) agent of the hereafter named property, to be to the use and benefit of my daughter, Cartha, and the lawful heirs of her body to them and their successors — to wit," etc., naming certain slaves, and the tract of land now in dispute. The defendant's counsel (348) contends that these words contain, in substance and effect, a covenant by the plaintiff's lessor, to stand seized to the use of his son-in-law, or his daughter, the defendant's wife; that the consideration is either expressed in the deed, by means of the reference to that recited in the first part, or that it is implied from the relationship of the parties apparent in the deed; that the relationship, whether of consanguinity to the daughter, or affinity to the son-in-law, is a good consideration, sufficient to raise an use, and that therefore the deed is effectual to transfer the land either to the daughter or son-in-law; and in either case, the plaintiff's lessor cannot recover. For these positions the counsel cites the following, among other authorities: Bac. Abr., tit. Cov., Letter A; Platt on Cov., 3 (3 Law Library); Bedell's case, 7 Rep., 40; 2 Saund. on Uses and Trusts, 81; Milbourne v. Simpson, 2 Wils. Rep., 22; 2 Pres. Shep. Touch., 512 (31 Law Lib.). The counsel for the plaintiff's lessor, on the other hand, contends that the words relied upon by the defendant are unmeaning; that no covenant is expressed, and that none can be implied, because it would be repugnant to the idea of an agency in the son-in-law, that no sufficient consideration appears to raise a use either to the daughter or son-in-law, and that the instrument is therefore void and of no effect; and he cites in support of his argument Co. Litt., 49, a., andSprings v. Hanks,
We think that we can do this, and we ought to do it, and thus escape the condemnation pronounced upon the judges who exercise their ingenuity in construing words so as to destroy, instead of to give effect to the intention of parties as manifested in their deeds. Whether the *326 operation of the deed was to vest the legal estate in the defendant in trust for his wife and her heirs or whether she took the legal estate so as to give him a life estate as tenant by curtesy, the lessor of the plaintiff cannot recover.
The judgment in favor of the lessor must therefore be set (350) aside, and judgment of nonsuit be entered according to the case agreed.
PER CURIAM. Judgment accordingly.
Cited: Register v. Rowell,