French v. French

3 N.H. 234 | Superior Court of New Hampshire | 1825

Greek, J.

It is contended by the defendant, that from the last clause in the instrument, under which the plaintiff claims, it is evident, that nothing was intended to be passed ; but that the instrument was designed merely as an engagement not to sell the premises during the plaintiff’s life.

The case shews, that the contract was between a father and son, and that the father, at the time of its execution, gave a deed of the same land to the son.

A practice has long prevailed in this part of the state, for parents, in the decline of life, and who wish to settle their worldly concerns, to give to the child, with whom they expect to live, and be supported in old age, a deed of their farm, taking back a lease of the same during their lives ; and from what has been before us relating to this transaction, we entertain no doubt, that such was the intention and object of the parties in this case.

Upon this supposition, the instrument in question must have been designed to benefit the father, by securing to him a resort, in case the son should prove undutiful and refractory ; but admit that it was a mere engagement not to sell the property in the lifetime of the father, and nothing more ; in that case, it would be as much in the power of the son to deprive the father of any benefit from the farm, as though no contract had been entered into on the part of the son ; and he might take the farm exclusively to himself, and leave the father destitute of any support from that source.

The obvious duty of the court is so to construe instruments, as to give them a beneficial effect, if it can be done consistently with the rules of law for it is not to be supposed, that parties will deliberately enter into stipulations, which are never intended to benefit any one, but to remain a mere idle ceremony ; and this must be the case with the instrument in question, unless we consider it, as intended by the parties, to vest in the plaintiff a life estate ; and such construction we feel ourselves bound to give it.

The words in the latter part of the instrument, which, the defendant contends, qualify the previous expressions, were added, we think, to render the plaintiff more secure in his life estate.

We are then to consider, whether the instrument was executed with such formalities as to pass a freehold under the statute of this state, passed February 10, 1791, entitled “ an act declaring the mode of conveyance by deed,” (1 N. H. Laws 190,) there being but one subscribing witness.

It is enacted in the fourth section of that statute, as follows, viz : — “ That all deeds, or other conveyance of any “lands, tenements, or hereditaments, lying in this state, “ signed and sealed by the party granting the same, having “ good and lawfful authority thereunto, and signed by two, or “ more witnesses, and acknowledged by such grantor or gran- “ tors, before a justice, and recorded at length in the registry of deeds, in the county where such lands, tenements “ and hereditaments lie, shall be valid to pass the same,with-it out any other act, or ceremony in law whatever.”

No doubt can be entertained, that all conveyances,comprehended within this section of the statute, must be signed by two witnesses at least, in order to render them valid — the statute is peremptory in this particular, and it follows, that the plaintiff, by virtue of the instrument in question, can derive no title under this statute.

It is equally clear, that it cannot have effect as a conveyance at common law, the formalities, required in such cases, Ibt having been complied with ; and unless the law in relation to uses and trusts can be applied to his case, be is without iremedy. Is then the law of uses and trusts a part of the law of this state ?

It has been suggested by the counsel for the defendant-, that this question was agitated, and with much deliberation settled, in this state, at the November term of the supreme court, Strafford county, 1813, in the case Thompson vs. Ben-net, and in recurring to the 2d vol. N. H. Rep. p. 440, in the case Smith vs. Chamberlain, we find this decision adverted to. • — The present suit was continued at the last term, with a view to our being furnished with the opinion of the court ⅛ that case, and it is much regretted,that the defendant's counsel has not been able to obtain it — the source, in which it originated, would have entitled it to great consideration, and no doubt, we should have been supplied with much useful matter to our assistance.

But from some extracts, to which I have had access, it appears, that the foundation, on which that decision principally rested, was, that the law of uses and trusts (if ever in force in this state) together with the methods of conveying at common law, were all superseded by the statutes of FT01 and 1791.

As respects the question whether those laws were ever in operation here ; it was said by Justice Bell, in delivering the opinion of the court, in the case, (New-Parish in Exeter vs. Odiorne et al. 1 N. H. Rep. 237,) “ The law respect-f< ing uses and trusts, as modified by the statute of 27 Hen. “ VIII, was received, and has been in practice as the law “ of this state, from the first organization of its govern-u ment, so far as the nature and power of our judiciary “ establishments would carry them into effect.”

Our ancestors, in emigrating to this country, brought with them the different methods of transferring real estate, which prevailed in the mother country ; and such parts were adopted as were not inapplicable to their new situation As the conveyance to use was quite as simple and free from formalities as the other methods of transfer, perhaps no one could have been selected, out of those then existing,, better adapted to the infant state of the colony.

From all we have been able to collect on the subject, we are persuaded, that the law of uses and trusts was received as part of the law of this state, as soon as the government was organized, and, unless superseded by some of our local statutes, must still be in operation here.

That it has been thus superseded, is insisted on the part of the defendant. It is said, that this species of conveyance, with those at common law, were all done away by the provincial act of 170.1, (Prow. Laws 19,) and the act of 1791, which has already been recited.

The first section of the act of 1701, is in the following words, viz. : — .

“ That henceforth all deeds or conveyances of any houses “ or Sands within this province, signed and sealed by the par- “ ty or parties granting the same, having good and lawful “ right or authority thereto, and acknowledged by such gran- “ tor or grantors, before a justice of the peace, and recorded “ at length in the records of this province, where such houses “ and lands do lie, shall be valid to pass the same, without “ any other act or ceremony in law whatsoever. And that “ from and after three months next after publication of this “ act, no bargain, sale, mortgage, or other conveyance of “ houses or lands, made and executed within this province, “ shall be good in law to hold such houses or lands against “ any other person or persons, but the grantor or grantors “ and their heirs only, unless the deed or deeds thereof be “ acknowledged and recorded in manner as is before ex- “ pressed,”

The act of 1791, is, in substance, the same ; except that two witnesses are to subscribe the deed, in order to render it valid.

It has been impossible for me, with the utmost diligence, to discover, in this section, any expression, which has the least tendency to shew, that the method of conveyance, here pointed out, was intended to supersede all others. The evident intention and design was to free the people from the ceremony of livery and seisin in feoffments. The country being then in a wilderness state, the ceremony of the English investiture would have been extremely inconvenient and troublesome ; and the other modes of conveying not being readily understood by the people at large, this additional one was adopted, as better suited to the state and condition of the country, but without in any degree impairing of affecting any of the others, except by requiring that they should be acknowl edged and recorded, in order to render them effectual against third persons.

In Massachusetts, where a similar statute has existéd from an early period of their government, and from which out’s was probably copied, the law of uses and trusts has been recognized and practised upon, without any question as to its being superseded by that statute.

In the case of Cox et als. vs. Edwards, (14 Mass. Rep. 491, App’x.) Chief Justice Cushing, in delivering the opinion of the court, observes,

“ The first clause of the act provides, that all deeds or “ conveyances of houses or lands, acknowledged and record-u ed, as is therein required, shall be valid to pass the same “ without any other act or ceremony ; meaning, as I appre- “ hend, without livery of seisin, which was indispensable at “ common law. The next clause enacts, that no bargain^ “ sale, mortgage-, or other conveyance of houses or lands, “ shall be good to hold such houses or lands against other “ persons than the grantor and his heirs only, unless such deed w he acknowledged and recorded. Now, comparing this “ with the first clause, it does seem, that the legislature fe-atended no other conveyance, than those, which the act or u ceremony of livery of seisin was necessary at common law “ to render valid»”

And in the same case a deed, which had not the requisites of the statute, was considered and adjudged as a covenant to stand seized to use.

In the case of Marshall vs. Fisk, (4 Mass. Rep. 24,) the same is in substance repeated by Chief Justice Parsons.

It has been further objected, that in cases of covenant to stand seized to uses, there must be a consideration, and as none is expressed in the instrument offered by (he plaintiff, he can derive no benefit from it.

In these cases, the consideration of blood or marriage is in-dispensa!)!)’ necessary ; but it is not required, that such consideration be named in the deed ; if it can be inferred from the relation, in which- the parties stand to each other, it is sufficient.

In Fonbl. Equity, 2 vol. p. 26, note, it is said, “ Though a u consideration be absolutely requisite to the raising of an “ use upon a covenant to stand seised, yet no consideration u need be mentioned in the deed ; but if the cestui que use u stand in a relation, which affords of itself a consideration, u a use shall presently arise to him ; as if a man covenant to “ stand seised to the use of his wife or brother, or any of his “ kindred, this is sufficient to raise a use to them, without “ any mention of a particular express consideration, for the “ love and affection between them is obvious, which being a “ consideration in itself sufficient to raise an use, the limit- “ ing of the use shall, be referred to such consideration.”

The other authorities on this point are conformable to the one just quoted ; and it seems not to admit of doubt, that no consideration is necessary to be expressed in the deed.

The defendant’s counsel has also suggested, that from the language of the instrument, no covenant to stand seised to use can be raised, and that it is insufficient in other particulars.

Such a deed does not require any subscribing witness, and ne technical words are necessary to create a trust. Fisher vs. Fields, 10 John. Rep. 495.

The case of Wallis vs. Wallis, (4 Mass. Rep. 135,) applies with peculiar force to this part of the case : there a deed was executed by a father to his-son, to take effect at the death of the grantor ; the only consideration named in the deed was a sum of money. It was there said by Chief Justice-Parsons, that although the deed could not operate as a conveyance at common law, yet the consideration of blood might be averred, and the instrument have effect as a covenant to stand seised to the use of himself, during his life, and after Ms decease, to the use of the grantee, and his heirs. Here a deed was given, and the grantor, at the same time, took back the instrument under consideration to secure a life estate ; this was but one transaction. The only difference ia the two cases is simply in form, and why the effect should not be the same, I am wholly unable to see ; but if the instrument from the defendant be considered as distinct and apart from the deed of the plaintiff, the result must be the same. It releases to the plaintiff, during his life, the use and improvement of the premises in dispute, and the contract being between father and son, the consideration of blood may be averred. The instrument, therefore, possesses the features necessary to render it a covenant to stand seised to the use of the plaintiff, and the use being thus raised, the statute of 27 Hen. Fill, for transferring uses into possession, entitles the plaintiff to possession of the premises.

Richardson, C. J.

The tenant’s claim to judgment in this case is rested by his counsel upon two propositions.

In the first place, he has urged, that under the statute of February 10, 1791, entitled “ an act declaring the mode of “ conveyance by deed,” nothing will pass by a deed, unless it be “ signed by two or more witnesses.”

In the second place, he has contended, that every deed, which is not a valid conveyance under the said statute, is wholly inoperative.

To the truth of the first proposition, we, without any hesitation, accede. The language of the statute is too plain and explicit to admit a doubt. In addition to this, it is understood to have been solemnly decided in this court, at November term, in the county of Strafford, 1813, in the case of Thompson vs. Bennet, that a deed, attested by one witness only, was not sufficient to pass real estate under the statute. This decision was recognized as law in the case of Smith vs. Chamberlain, (2 N. H. Rep. 440,) and the correctness of it has not been questioned in this case by the demandant’s counsel.

But the second proposition is so new, so extraordinary, and csífrepugnant to what is believed to be the general opinion of the profession on the subject, that we should not have deemed it worthy of a moment’s consideration, had it not. been urged upon our attention by counsel with an earnestness, which seemed to evince a deep conviction, that the proposition might be maintained. We have thought it due to the very able and ingenious arpment, which has been urged in its support, to examine it with attention ; and we have considered it in every point of view, in Which it has been presented to -as. The result of our examination of the question we shall now endeavor to state.

At the common law, feoffments and grants were the usual modes of transferring property. A feoffment was defined as a conveyance of corporeal hereditaments, by delivery of the possession npon or within view of the land. No charter of feoffment was necessary ; and when it was used, the lands were supposed to be transferred, not by the charter, but by the livery. A grant, in the original signification of the word, is a conveyance of an incorporeal hereditament. As livery of seisin could not be had of incorporeal hereditaments, the transfer of them was always made by writing, in order to give to them that notoriety,' which was produced in the transfer of corporeal hereditaments by delivery of possession.

The statute of the 27 Hen. VIII. cap. 10, commonly called the statute of uses, produced a great revolution in the modes of transferring landed property. It is, however, unnecessary to notice, on the present occasion, more than two new modes of conveyance, introduced by that statute. These are bargains and sales, and covenants to stand seised to uses.

There is no doubt, that a species of conveyance by bargain and sale existed before the statute of uses, and originated from an equitable construction of the court of chancery. A bargain was made for the sale of an estate ; the purchase money was paid ; but there was either no conveyance at all of the legal interest, or a conveyance defective at law, by reason of the omission of livery of seisin, Or attornment ; the court of chancery properly thought, that the estate ought in conscience to belong to the person, who paid the money, and therefore considered the bargainor as a trustee for him. But the cestui que trust had only an equitable interest. The statute of uses enacted, that, “ where any person or persons, “ &c. stand or are seised of any honors, &c. lands, tene- “ merits, &c. to the use, confidence, or trust of any other “ person, or persons, &c. by reason of any bargain, sale, “ feoffment, &c. such person, or persons, -&6. that have any ⅜£ such use, shall be deemed and adjudged in lawful seisi», estate, and possession thereof, to all intents and purposes, “ of or in such like estates as they have in the use,, &e, and “ the estate, right, and possession of him and them, so seised u to any use, &c. shall be deemed and adjudged in him or “ them, which have the use., &c. after such quality, maSner, “ &c. as they had before in or to the use.” On this statute the conveyance, which has been called a bargain and sale, is founded. The bargainer contracts to. sell the land, and receives the purchase money ; after this, he ⅛, in equity, considered as seised of the land to the use of the bargainee ; and this statute unites the possession to the use, so that the very instant the use is raised, the possession is joined to it, and the bargainee becomes seised of the land. The words of transfer, applicable to this conveyance, are bargain and sell; but they are by no means, necessary nor material to its operation. There must be a pecuniary consideration. But if a man, for such a consideration, covenants to stand seised to the use of another person, a use is thereby raised, which the statute will execute.

Covenants to stand seised are another species of conveyance founded upon the statute of uses. The consideration of this conveyance is the foundation of it. The words covenant to stand seised are, therefore, not absolutely necessary to its operation. Uses can only be raised/ upon a covenant to stand seised in consideration of blood or marriage. If the consideration appear, though it be not particulaily expressed, yet it is sufficient to raise a use upon this conveyance. Thus, if a man covenant to stand seised to the use of his wife, son, or cousin, without saying in consideration of natural love, the covenant will raise the use, and the statute execute it.

When our ancestors first came to this country, they brought with them and adopted the various modes of conveying real estate, then in use in England. This is very apparent from the language of several ancient statutes. Thus, a statute of the colony of Massachusetts, passed in 165⅞, enacted, that “ henceforth no sale or alienation of houses and lands, with- “ in this jurisdiction, shall be holden good in law, except the iE same be done by deed in writing, under hand and seal, and “ delivered, and possession give» upon part in the name of “ the whole by the seller, or his attorney, so authorized, un- “ der hand and seal, unless the said deed be acknowledged e6and recorded according to law'.” Mass. Col. & Prov. Laws 85.

Here a feoffment is distinctly recognized, as a valid conveyance.

In 1697, a provincial act of Massachusetts declared, “ that a henceforth all deeds or conveyances of any houses or lands, a within this province, signed and sealed by the party or S£ parties granting the same, having good and lawful right and <£ authority thereto, and acknowledged by such grantor or <£ grantors, before a justice of the peace, and recorded at “ length in the registry of the county, where such houses or ££ lands do lie, shall be valid to pass the same, without any “ other act or ceremony in the law whatever.

“ And that no bargain, sale, mortgage, or other eonvey-a anee of houses or lands, &c. shall be good and effectual in “ law, to hold such houses and lands against any other person “ or persons, but the grantor or grantors, and their heirs on-u ly ; unless the deed or deeds thereof be acknowledged and u recorded in manner as is before expressed.” Mass. Col. & Prov. Laws 303.

Here a bargain and sale is distinctly recognized as a mode of conveyance in use.

Our provincial act of the 13 W. 3, cap. 12, (Prov. Laws 19,) was copied verbatim from the said provincial'aet of Massachusetts, and of course mentions a bargain and sale as a mode of conveyance in use.

Our statute, entitled “ an act declaring the mode of cont£ veyance,” sec. 4, which is now in force, enacts, “ that all “ deeds or other conveyances of any lands, tenements, or ££ hereditaments lying in this state, signed and sealed by the <£ party granting the same, having good and lawful authority ££ thereto, and signed by two or more witnesses, and ac- “ knowledged by such grantor or grantors, before a justice ££ of the peace, and recorded at length in the registry of “ deeds in the country, &c. shall be valid to pass the same, “ without any other act or ceremony in law whatever. And no deed of bargain and sale, mortgage, or other eon- “ veyance, &c. shall be good and effectual in law to hold “ such lands, tenements, or herediiaments, against any other “ person or persons, but the grantor or grantors, and their “ heirs only, unless the deed or deeds thereof be acknowl- “ edged and recorded in manner aforesaid.”

Here again a bargain and sale is recognized as a valid mode of conveyance.

But it is said, that this last mentioned clause in the statute has abolished all the former modes of conveying real estate, and that no conveyance remains, except that prescribed by the statute. We have attentively examined the statute, but have sought in vain to find any thing indicating such an intention in the legislature. It is a well settled rule, in the construction of statutes, that affirmative words do not take away the common law, nor a former statute, unless it be in cases, where the affirmative words in sense contain a negative. Com. Dig. Parliament R. 23, 26.—Plowden 112.—11 Coke 56, Foster's case.

The statute, now under consideration, declares what shall constitute a valid conveyance ; but it contains no negative, either in its terms, or in sense. On the contrary, it in express terms recognizes “ bargains and sales, and other convey-u anees,'” and declares, that they shall not be good against any, but the grantors, and their heirs, unless recorded. Nothing can afford a clearer demonstration, that it' was not the intention of the legislature to abolish the modes of conveyance, which had been in common use, than the language used in this statute. Whoever attentively examines this subject will find, that the object of this statute was to take away the necessity of livery of seisin, and to substitute a deed, executed in a particular manner, and acknowledged and recorded, in its place. Nothing more than this is believed to have been intended ; and this purpose the statute has most conveniently fulfilled. 4 Mass. Rep. 64, Wells vs. Prince.

In Massachusetts, the provisions of their statute of 1T83, cap. 37, are substantially the same as those of our statute. Yet, it has never been supposed there, that their statute abolished the ancient modes of conveying real estate. So far from this, the supreme court of that state, in the case of Wallis vs. Wallis, (4 Mass. Rep. 135,) expressly decided, that a covenant to stand seised was a valid conveyance. And in Marhall vs. Fisk, (6 Mass. Rep. 31-2,) Parsons, C. J., speaking of the statute of uses, says, u conveyances of land, “ deriving their effect from the provisions of that statute, í( are consequently legal in this state, as well as convey- “ anees at common law.”

But it is further contended, in this case, that no deed can operate here as a covenant to stand seised, or as a bargain and sale, because the statute of uses was never adopted in this state. If the premises, upon which this argument is founded, are true, the conclusion is without doubt a sound one. These conveyances cannot exist without the statute of uses. But what seems to us to be a decisive answer to this argument is, that our present statute, as well as the ancient provincial act, expressly recognizes a bargain and sale as a mode of conveyance, and thus, by necessary implication, recognizes the adoption of the statute of uses.

Nor is this all. In the case of the Mew Parish in Exeter vs. Odióme et a. (1 N. H. Rep. 237,) Justice Bell said, “ the “ law respecting uses and trusts, as modified by the statute u of the 27 Hen. Fill., was received, and has been in prac-u tice, as the law of this state, from the first organization “ of its government.”

In the case of Chamberlain vs. Crane, (1 N. H. Rep. 64,) the adoption of the statute of uses was distinctly recognized by this court.

In the case of Marshall vs. Fisk,. (6 Mass. Rep. 31,) Pardons, C. J , says, the statute of uses being in force in Eng- “ land, when our ancestors came here, they brought it with “ them, as an existing modification of the common law ; and “ it has always been considered a part of our law.” And the statute of uses is recognized in many other cases there. 3 Mass. Rep. 573.—7 ditto 198.—8 ditto 442.—7 ditto 154.

The statute of uses has also been adopted in New-York. (10 John. 456, 505-6.—11 ditto 351,) and in Pennsylvania, (1 Binney 518,—3 ditto 619.—4 ditto 1.)

It is clearly the duty of die court to gire such construction Hi e\cry instrument, os will give effect to the intent ion of the parties, if, by law, it can be done. In this case we are clearly of opinion, that this deed may be construed as a covenant to stand seised, and pass the land without the aid of the statute. The consideration of blood appears upon the face of the deed. 2 Sand, uses 90.—Shep. Touch. 511, 82, 83.—2 Vent. 150, Lade vs. Baker-2 Wilson 22, Dae vs. Simpson.—2 ditto 75, Roe vs. Tranmer.—5 Mass. Rep. 135.—11 John. 351.

The contract of the grantor in. this instance, made upon the consideration of blood, is sufficient to raise a use, anff •that use is executed by the statute of uses. We are, therefore, of opinion, that there he

Judgment for the demandaht: