| Me. | Apr 15, 1828
delivered the opinion of the Court.
In regard to the question whetherparol testimony could be received in this case, we are very clear that it is inadmissible. There is no latent ambiguity in the deed ; and its effect must be determined by the legal construction of the terms used.
There is another objection to its being regarded as a reservation ; for that can he for the benefit of him only from whom the estate passed, which was the husband. II holden to be an exception, it could not avail the demandant; for the estate excepted is unaffected by the deed; it could therefore pass no interest therein to the wife. The conveyance is in form a deed of bargain and sale, founded as such deeds must be, upon a pecuniary consideration. A deed of bargain and sale derives its validity from the statute of uses; a use ■ being thereby raised to the bargainee, which the statute executes. But as by the settled construction of that statute, a use cannot be limited upon a use, the bargainee cannot take to the use of another ; the statute executing the use in the bargainee only. Equity enforces as a trust the second use, which the statute does not execute; and in such cases a remedy may he afforded by a bill iii equity, under the chancery powers of this court; but not by any process known to the common law, by which such use is holden to be a nullity.
The deed might operate as a covenant to stand seised to uses; but it is not j founded upon the consideration of blood or marriage, which is deemed essential in this species of conveyance. . And although deeds upon other considerations have been sometimes called covenants to stand seised, and have used the language peculiar to such instruments, yet their legal operation has been as deeds of bargain and sale, as they were found to possess the requisites which belong to this kind of assurance. Welch v. Foster 12. Mass. 93.
A deed of land may in this State be considered as any species of Conveyance, not plainly repugnant to its terms, and necessary to give effect to the intent of the parties. Thus, to this end, an instrument in
If we regard the instrument before us as a feoffment, a question arises, to what uses ? From an inspection of the deed it is impossible to doubt that the parties intended that the use of one half of the premises should be to the husband and wife during their lives. It is true, that in the habendum the granted premises are to the said Jonathan Chase, his heirs and assigns, “ to his and their only proper use and benefit forever.” If this be considered as determining and appointing the uses of the whole estate, it is clearly repugnant to the intention and limitation expressed in the former part of the deed. It was most manifestly intended that the use, benefit, and-enjoyment of .one half of the premises should not accrue to the grantee and his heirs, until after the death of the grantor and his wife. The uses in the habendum must therefore, to give effect to the intention of the parties, be held to be qualified by the uses before appointed. The habendum cannot defeat or destroy an estate granted in the premises; so far as the former is repugnant to the latter, it is inoperative and void. 3. Com. Big. Fait E. 10. Taking the whole instrument together, it is apparent that it was the intention of the grantor, that the estate should pass, one moiety to the use of the grantee and his heirs in fee, and the other moiety to the use of the grantor and his wife for thejr lives, and the life of the survivor of them, with remainder in fee to the grantee and his heirs. Had these uses been declared formally and technically, the statute would have executed them, according to the intention of the grantor. There is in this deed a want of accuracy and legal precision in the language used, but as the intention is plain, and the uses manifest, we are of opinion that they may be regarded as executed by the statute, without violating legal principles.
Defendant defaulted.