*1 Hathaway Payne. v. Statement of case. Sylvester R. Gideon R. Appellant, Hathaway,
Respondent. immediately, Whether a a executed not delivered but handed to stranger grantee time, delivered at a future be an escrow a grantor presently, depends upon deed of the the intent of the thereto. delivery Where the future grantee depends of the deed upon perform- condition, ance of some isit an escrow. Where only lapse it is time, happening wait of some contin- gency, grantor's presently. is to be deemed the deed Where the deed is to be delivered to the grantor, the death title, by relation, passes at the time delivery. was left for This action is trespass, down cutting carrying away trees; was at Ontario a tried Circuit, by without judge jury. was the defendant for Judgment costs. This given judg- ment was affirmed at General Term in the Sixth District, from which an to this appeal court. brought at the trial found the judge facts: following “ That the deed from Gideon and wife to the defend- Payne of which is ant, hereto annexed copy marked theA, bond of defendant them, which is hereto copy annexed, marked and the bond of Gideon B, and wife defend- Payne of which is also hereto ant, copy annexed marked C, were executed on the 25th of simultaneously November, 1839. “ That the defendant did for and the said provide support Gideon to their Payne satisfaction, during natural and that no demand was made lives, them or them of the sum of either of dollars annum, to be thirty per to them or of them, either demand as paid specified his bond. thousand That the said four dollar mentioned mortgage bond as executed defendant’s been having and the defendant covered George Payne, Burnett lot, embracing question, forty in the deed acres of other lands embraced of the 25th of and that said bond November, 1839, even date bearing with the mortgages paid *2 of case.
Statement record the 22d óf February, on satisfied day mortgage 1856. “ the defend- 1848, That on the fourteenth of February, day a certain delivered to Gideon ant executed and Payne quit- marked D. is hereto annexed, claim deed, copy “ his last and That Gideon made executed duly con- 1845, and testament on the will 27th day September, his full will, power executors ferring upon appointed estate of his and the real after the death wife sell convey die of which should seized. “ That his That he died on the 23d of 1848. November, third and recorded on the March, day will was proved duly his executors. issued to and testamentary letters 1849, died third his wife survived on the him, day “That 1854. April, “ and on the 22d afterwards, day That his executors plaintiff, premi- 1854, June, granted conveyed lot a certain of land Farmington, ses question, being described bonds hereto Ontario county, B and marked as the Burnett A, annexed, C, respectively lot. “ Burnett lot contains acres of land, That the ninety-two the fourteenth was, of which day one-half February, and.the other half land, and timbered improved. wood 1848, “ after the said soon were con- That the plaintiff, into entered possession improved portion veyed him, thereof. afterwards cut carried That the defendant away ten timbered premises, living the wood portion and ten dead value of trees, ten trees, trees, decaying dollars.” fifty . trial that the deed from the admitted on the testator
It was remained in the of Edward towife after the defendant’s mother, until death Herrendeen said Herrendeen to was delivered that in April, that the deed from the defendant and wife defendant. Also, time of delivered to the testator to the testator, was date. its
Statement of case. It was on the proved trial, was that the undisputed, of the defendant lived with him parents the latter died lives, father, testator, mother there; lived there until a short time before her she death; went to visit son who another she was sick; taken ill there and died there. The $1,000 satisfied and dis- paid, mortgage, the defendant charged record, produced by evidence on the trial. The deed referred to A, in his judge *3 was a deed of finding, covenants warranty for two par- cels of the second are land; described parcel and are as the one described third question, undivided equal “ acres ninety-two land, called Burnett lot,” in the and the Farmington, county Ontario, consideration therein was expressed of land $9,000; was stated quantity 181-|- in the deed to be acres. The facts and circumstances to the of this deed are found relating delivery detailed in the and condition of recital the two one and bonds, executed given Gideon and Phebe his Payne wife, and and the other executed given defendant to his father, even date with both bearing said deed. The of- penalty the first mentioned bond the second named being $5,000, in the of $10,000. bond The recital and condition penalty follows : n first are as in the bond the said Gideon E. Whereas, has this executed Payne day the said Gideon and Phebe Payne his a bond wife, Payne, ten thousand in the sum of conditional for dollars, penal maintenance the said him, Gideon support Payne, his their Phebe or the life of either of wife, lives, during them, and the to them or either of payment sum them, dollars hereafter, of thirty annually only, request also the full satisfaction expense money, payment bond a certain executed mortgage day by George thousand dollars for four the said interest, Payne, and Gideon E. and a Gideon further consider- Payne, Payne of said bond that the said Gideon ation E. shall Payne of all surrender the the lands, with the together possession thereunto which hereditaments appurtenances belonging, in the deed this executed are included the said day 95: (cid:127) case. Statement of R, Gideon his said and Phebe wife, Payne
Gideon is to acres of land, about Payne, being 181-f Herrendeen; of Edward and remain Gideon Payne, lifetime said during Farmington, and as whenever or' either of them, wife, his and Phebe or refuse R. shall neglect the said as he, soon the said Gideon Payne, him, to maintain support shall a"manner that or either of them, Phebe to them. satisfactory mutual
“And is agreement.between .the whereas, is that the said Gideon R. Payne to these presents, all use and control benefit) the full (for to have in the and remain in the deed to be pos- lands embraced and in to, as before Herrendeen, of Edward referred. session have the Gideon R. thereto, said addition the Burnett so lot, called, remainder of use and control acres, third undivided ninety-two the two parts being Herrendeen’s included the said deed possession, *4 and hereditaments for with the his use and benefit, together much of thereunto so excepting appurtenances belonging, farm as the said Gideon house on the home dwelling "for their and Phebe his wish to Payne -wife,may require and comfort and Gideon R. said convenience; whenever and the sum shall the said Gideon wife Payne Payne pay of two thousand the said Gideon R. is to dollars, he, Payne, receive and sufficient the said Gideon him, good and of the two undivided third Payne wife, parts equal acres of the west of lot ninety-two. land, 81, Ho. part being called the Burnett lot. Farmington, How, therefore, condition if the this above bounden such, obligation and wife the said Gideon shall Gideon R. Payne let Payne have the full and control of the use, home farm occupation and the Burnett lot, called, so now owned the said by him, Gideon both Payne, by estimation, containing, pieces 243 acres of use' and land, tracts, benefit, together and with the hereditaments thereunto belong-, appurtenances so as Gideon R. shall he, maintain ing, long Payne, said and and him, said Gideon support Payne, wife, Statement of case. as shall be manner satisfactory them, so reserving only much of the house on the home farm in lot dwelling No. 63, said he, Gideon Farmington, and wife Payne, may wish their comfort and or either of convenience, them.' And further condition this that whenever obligation as the and soon Gideon E. shall Payne pay just full two sum thousand dollars the said him, or either of wife, then Payne shall execute them, and deliver the said Gideon E. him, Payne, warranty deed of the two undivided third of 92 acres of equal parts the west of lot land, No. being Farmington, called the Burnett without fraud or other then lot, delay, be of none void otherwise to obligation effect, remain in full force and virtue. “GIDEON PAYNE, [l. s.] PAYNE,
“PHEBE [l. s.]” and recitals of the second bond conditions are terms, as follows: “ Know all men these Gideon E. I, presents, Payne, of Ontario and State of New county Farmington, York, am held and unto Gideon bound Phebe firmly Payne in the sum ten same thou- Payne place, sand lawful York, State New dollars, money to the or to said Gideon Phebe paid heirs, administrators or executors, assigns, pay- well and to be I bind ment, made, myself, my heirs, truly executors and each administrators, every them, *5 these dated the sealed with 25th my seal, firmly by presents, of 1839. November, day “ Gideon and Phebe his the said Payne Payne Whereas, and this executed wife, have day acknowledged warranty of, two tracts of several deed to the said E. Payne, estimated to The first tract of land is contain viz.: land, or same more less, and be the acres, one hundred fifty-one the home farm is all of lot No. in and 63, Farmington, being 21 the said about acres, conveyed Gideon Payne, of excepting and wife to two said Gideon George Payne, Payne since con- executed some time one warranty separate deeds, of Statement case. or side said home lot farm, from the west of acres
veying about this date, convey the other and of supposed Bo. tract or less. The second of the same more three acres, said B. Gr. to the G. Payne Payne land conveyed day as the in. said deed one undivided is described and wife, the said Gideon acres of land which Payne of 92 third part lot in the' west Bo. 81, owns, Farmington, now the Burnett lot. The consideration called is as- estimation G. B. Payne $9,000, conveying by the said n acres two-thirds of acre of be the and same land, And or is the mutual whereas, more less. the said Gideon and Phebe of the one
between Payne Payne B., and the said G. the other Payne part, part, delivered to said deed shall said G. B. him, Payne, G. and the lifetime of the said Phebe or during Payne Payne, shall be either of but and'remain them, or his Herrendeen, executors,^admin- Edward Farmington, or to be the said him, Edward assigns, Herrendeen, istrators his or delivered to administrators, executors him, or said or to his executors or heirs, B. Payne, administrators, G. after the decease of the said G. him, Payne, immediately his as a and valid wife, and Phebe Payne good all the lands therein contained. therefore, the condition of this Bow, obligation such, his if the above bounden G. B. executors heirs, Payne, time,to and and at shall all administrators, do, time, or natural lives of said G. P. times and during hereafter, his or either of them, P. well main- wife, sufficiently P. * or cause be well tain support, sufficiently P. and the said G. P. P. his maintained supported, said or D. G. in the now house him, wife, said G. other or P. places Payne they, place either hereafter select, or wife, them, may P. clothes and all other con- drink, things necessary
meat, or for them either sickness them, health, venient G. P. P. also shall pay them, such sum of wish for either" money may *6 one the sum year of money, exceeding any expense Tiffany—Von. VII. Payne. of
Statement case. to be or the and $30, only paid request, request Of And a further of either them. condition this of obliga- the said E. shall and tion G. P. pay satisfy fully and of bond executed Gideon $4,000, day mortgage by and E. and G. whenever Payne Payne Payne; George E. shall or the above bounden G. refuse Payne neglect and said Gideon Phebe Payne wife, Payne support in a either of manner shall be them, or satisfactory G. E. shall said them, he, Payne, thereupon, said Gideon Phebe his him, Payne, wife, request or either of the full them, them, surrender possession in the deed the lands embraced above referred all to, being of Edward with all Herrendeen, together and hereditaments thereunto appurtenances belonging, and all which faithfully above fully performed, by being G. E. heirs, bounden executors Payne, administrators, to the true and intent without thereof, according meaning fraud or other then this delay, be void and obligation none to remain-in full otherwise force and effect, virtue.” The, above contract were afterwards and modified another deed, date changed bearing executed 14th Gideon E. February, Payne B, his to his Gideon wife, Maria father, This latter refers to the former one its date and parties, other references, follows: “ This made the indenture, fourteenth day February, Lord our one thousand year hundred and eight forty- Gideon between E. and Maria B. his eight, Ontario E. of the first county, Y., Farmington, part, same second place, wit- part, that the said of the first nesseth, part, consideration the sum one thousand dollars, enjoyment hereinafter the reservations contained and made to them, hand said paid by party second part, receipt confessed and hereby whereof have bar- acknowledged, sold, remised, quitclaimed, gained, these presents remise, do sell, unto the quitclaim bargain, party the second to his heirs and part, assigns forever, undi- *7 , . Hathaway
Statement of case. land in the town vided one-third acres of part ninety-two of lot taken from the west aforesaid, Farmington and called the Burnett lot, number said town, eighty-one same land that to Gideon B. Payne being conveyed the said and on the 25th of November, wife by also a deed now in the of Edward Herrendeen: of the other of said Burnett use two-thirds lot, granted certain and to said Gideon B. said Gideon and executed dated on the said day given nevertheless, at time of said the same deed; reserving, use, the free Gideon B. reserve, and the said does hereby and and of the whole of said premises occupation enjoyment reserv- next; until first November .thereon, day crops his heirs and unto the B., assigns' said Gideon also, ing, lot, said Burnett trees and timber on all the fallen forever, and be with the and that hereafter blown down, right may and the dead all to cnt and take the same away, privilege hereafter is or may and and timber now trees decaying to cut full and Burnett with the privilege said lot, no unnecessary time, the same away doing take. any trees of the live none growing to said premises; damage cut Burnett lot to be hereafter one. any timber on said are the reservations herein contained enjoyment for this consideration declared to .a part expressly neither the nor grantor conveyance, or. to cut on said Burnett lot to be any permitted
assigns the same is to remain for timber but thereon, growing used and his to be assigns, aforesaid, benefit all and the hereditaments and singular appur- together inor wise thereunto tenances belonging appertaining; remainder and reversion reversions, remainders, and all the estate, thereof, title, issues rents, right, profits demand of the said whatsoever, claim interest, party in and in law or to the above of, either the first equity, part, hereditaments with the and appurte- premises, bargained above have and to hold the said premises described, nances to : reservations, party above subject heirs the sole only proper second assigns, part, y. Payne. Sept., [ Court, per Potter, *8 and of the benefit behoof second his party part, (cid:127)heirs and the said first forever; assigns provided party his heirs and full and ben- part, assigns, enjoys privilege efit the above reservations.” G. E. for the Lapham, plaintiff.
T. R. for the defendant. Strong, . I find no such on the obscurity expression Pottee, face of the and two bonds of deed, the date of the 25th between, Gideon and and November, 1859, wife Payne Gideon son, R. as creates a defendant, question as to their real There is no therefore, meaning. difficulty, and effect of determining intent, those meaning, legal instruments. and read as if They may, should, together, inwere one instrument. in Reference is made the bonds of both to the deed of the same date. parties They explain each and make one other, good contract. (Coddington v. 1 Davis, French v. Comst., 186; Carhart, id., 96; Rodgers Kneeland, Cornell v. Wend., 115; Todd, Denio, 133.) Thus these it clear that the intent of the reading papers, to them in the first to execute a was, place, present called conveyance, what is wife, “ home and of an undivided third farm, of the Burnett farm,” in fee, amounted to defendant, which, about together, 181-| acres of land. It is that in addition equally plain, t.o fee contract set forth grant the bond was an to let the defendant have the use agreement and con- ” trol of the two-thirds of the Burnett lot remaining (not to be held to the condition conveyed deed), subject same And there was specified agreement.- the.further on the of Gideon at agreement, part wife, Payne that, he should receive a option and sufficient from the said Gideon by good Payne two undivided third wife, remaining parts “Burnett whenever said Gideon R. should farm,” pay the said Gideon wife the sum of $2,000, So, too, of the consideration of this been agreement having down, paid Pottek, J". it is in this executory, just respect being the manner of the consideration. provided paying clearly maintain that Gideon B. should support First, provided or them be well and his cause the said Gideon wife, manner be satis- in such as should and sufficiently supported, or as the said places, them, place, factory either of select them, thereafter, might and all other con- drink, necessary meat, clothes, things either sickness or of them) health, venient them, *9 or such sum of them, either of them, money also should pay for money, as should wish not-exceeding expense on then* the sum of dollars, only paid one year thirty of the of either them. the Second, or on request request, and Gideon B. was bond pay satisfy said mortgage on same was executed said day, which, of $4,000, B. to covered a Gideon Payne (which Gideon George in the described aforesaid deed); and, of part consideration, was the reservation to as Third, part his and to either of so much of wife, them, Payne farm on the home or either of they, of dwelling-house it comfort convenience. So wish, them, might that the the deed in its was, also is clear, and the of of considera- $4,000 terms, absolute, payment no condition absolute, was also depended upon tion of The of any stipulation. possession or performance of remainder and the the farm possession conveyed, the life of Gideon farm not conveyed, during Payne .Burnett of the consideration was a depended and wife, part upon of of Gideon B. stipulation part the performance Gideon and satisfaction wife. The above specified, the said on the of Gideon to perform stipulation, part failure was sub- consideration, for; provided B., loss of the the lands him the possession conveyed, jected third undivided as of the of the two parts as well possession set forth in held under the the Burnett farm, agreement This was the bonds. specific penalty consequence of it, for breach particu- agreement provided and there no other forfeiture lars penalty specified; [Sept,, «. Potter, than So tq can arise as far, .this. terms of question ' effect we shall agreement. agreement, pres- examine. was an ently executory Its.character the sale lands. There one other in this provision all the which agreement, this- question arising noted, action All is based. we have agreements were the several and covenants of the This separate parties. is a mutual of both agreement—the agreement parties; of Gideon Phebe his wife of the Payne one-part, Gideon R. of the other and is the Payne part, only stipula- that is It tion mutual. That said deed this: shall be delivered Gideon the life R., Gideon and during his or either but shall remain wife, them, of Edward his Herrendeen, Farmington, executors, to be administrators or delivered to said Gideon assigns, R. administrators or immedi- executors, assigns, the decease the said Gideon and Phébe ately after as a all and valid the lands good conveyance of therein contained.” It that the remarked, may agreement, *10 in or to terms, condition, prevent provided contingency, or this time nor in its defeat the delivery mentioned, effect, a that it then to become valid good conveyance. By of this entered virtue R. into the agreement, of all the lands and let. This was a conveyed valid based a and valuable agreement, good good the in absence óf consideration, sufficient, fraudj support if a made, compel specific performance conveyance, on. conditional feature of a refusal The the convey. stipula- did not tions the its effect this agreement change regard.- of were a the consideration to Those be stipulations part paid. the facts are found the all the As court, stipulations, on the the covenants of vendee, agreements part were the consideration of the were agreement, fully kept Had been defendant. no deed executed, performed a mere under such would circumstances, convey, been the court have enforced specifically behalf, a contract. on such 103 v. Potteb, as to its fact an and the
Except peculiar provisions, execution of the contract actual ordinary of lands on the for payment purchase- This execution the deed makes it one nearer money. step its is the evidence of to consummation, stronger being and not It an absolute conditional was to agreement. the deed instead of one executed, deliver already executing The on performance payment stipulation. but confirms this view. It was
purchase-money clearly and a sale If the one, other. vendor purchase by in this case retained the title for if the deed or, purpose, lacked absolute could a kind delivery, only implied on security stipulations performance vendee. It is now too well established to be questioned, that the interest in such of vendee case contract, death, it real and in case of to his descends estate, heirs, and not to and it is his executors devisable administrators; 398; as real 6 Johns. Brown, Ch., estate. v. (Champion 10 v. New York & v. Rood Barb., 434; Beecher, Griffith id., 174; R. Moore id., Burrows, R. Co., 83; Erie case is The vendor id., Smith Gage, 60.) vendee title, to Le trustee deemed equity the vendor for the and the vendee is purchase- trustee is treated due the contract as personal money. money and in of his death it case vendor; estate goes or administrators of does not vendor, executors Jur., to the heir 1212, 1214), (cid:127)descend (Story’s Eq. §§ from becomes either, notice, purchaser every subsequent would party the same equities subject 789, 790, (Id., 792.) whom purchased. §§ *11 relation of interest between to show this It necessary November, of the date to this contract parties the modification of it, it affected see to how order of 22d of-Feb- of the date defendant the deed made by 1848. ruary, was a remembered, quit- be will last conveyance,
This the undi- E. to Gideon claim title of in the Gideon E., interest one-third vided ' Potter, ” “ The Bnrnett lot use and only. right possession, two-thirds of the lot was also enjoyment remaining The released this deed. that and which question arises, in the is the case, is, principal question effectof n contained in this The defendant reservation deed. reserved all his heirs and the fallen forever, trees himself, assigns “ on timber said Burnett lot,” hereafter may blown with the be down, to cut and right privilege all take the same dead and trees away, decaying “ and timber now or hereafter on said Bur- may nett with the full lot,” cut take privilege the same away any time, doing unnecessary damage none of the live said trees or timber on premises; growing Burnett lot to be cut hereafter one. The by any enjoy- ment of the reservations herein are contained, expressly' to be a declared consideration for this conveyance. And neither the nor their are to be grantee, grantor assigns, to cut said Burnett .permitted lot, any growing thereon, timber but same is to remain for the benefit of and his used as aforesaid.” And grantor assigns “ (cid:127)this was to be held above grant subject reservations.” This raises the what had the question, rights defendant at ” that time the Burnett lot What ? convey rights
n could he what was the effect reserve, of reservation in a n of interests which poll did not own, where n thedeed is one did who own interest so accepted by reserved \
We have shown' that at the time of the already reconvey- this last named ance had title to the defendant undivided third Burnett lot. It was so law. part of to this last deed so themselves as' understood it, of the deed. This is appears by grant acceptance evidence that their also intentions were in accordance with To the extent of the law. interest which the defendant had eould and his convey, reservation property, therefore to extent valid and effectual. This was to an undivided In the-view we have taken of third. rights *12 Potter, have held that defend to the first we the contract, the parties had to the lands in without to ant title controversy, reference a the had íeen delivery whether not there the question of to the defendant. Suppose from wife deed Gideon Payne title in of have been error our view of this we question the It is then vendees such case. the strongly urged an that as deed as this escrow; only kept plaintiff, ” “ lot title the Burnett it never to delivered; had not to reconveyed therefore the defendant when passed no title it in as he 1848 to had father; consequently, Whether, he had none that he could reserve. convey, a deed delivered when is and not executed, immediately but to a to be-delivered to the handed grantee, stranger it at a future to be as the is considered deed time, an often a matter of is presently, escrow, it the intent of some more of doubt; depends upon generally to be words used parties, gathered than from the terms expressed, employ purposes or from the name parties give naming depositary, Where the instrument. (Foster Metc., Mansfield, 414.) future of is to delivery performance depend an it some it will be deemed escrow. Where condition, of to wait the or the some time, merely lapse happening and not the it will contingency, condition, performance be deemed the deed grantor’s presently.” (Id., 415.) did Her in this case call themselves, not, terms, parties It rén deen’s deed escrow. is, therefore, holding to determine the character of trust. to the law left for the itself, language Looking it left no and intent of condition to conveyance, purpose it but the before required be performed delivery; nothing Her- both the death of when time, wit, lapse grantors, trustee or (by agent, depositary rendeen, name he mutual direction may called), whatever alone could alone grantor (who the parties, mutual deliver immediately not revoke agreement), con- all the lands therein valid good look at- the intent If we tained.
Tiffany—Yol. YH. *13 Hathaway Payne. v.
Opinion
of the
J.
Potter,
as manifested
their
of the
acts,
independent
language
the one
the other
agreement,
granting,
accepting
of this
of the same
grant
it is
premises,
equally appa
rent
that the
intended the first
a
deed as
parties
present
In
Lawson
v.
conveyence.
Ruggles
(13 Johns.,
A.
285),
a
executed
deed of
in consideration of natural
lands,
love
and affection, to his two sons, and delivered it to
to be
0.,
delivered to his
sons
case A.
die
should
without
a
making
will,
A.
died
a
without
C. delivered the
having
will,
deed to the
it was held that this was a valid
sons;
took effect from the
that this was not an
delivery;
first
In
escrow.
a
v. Dibble
Tooley
father
(
being against its I that escrow. think, therefore, implication being if case this raised point, plaintiff depended-upon there was assumption delivery such title deed of 1839 as-to he must pass also fail. is
There another reason exists both common law the common the'statute law this (which adopted “ which is the construction of respect), controlling, inter instrument estate or every creating conveying any it of courts of est shall be lands, duty carry justice intent far intent can into effect the so as such parties, from the whole consistent instrument, be collected the rules law.” S., Darling R. (2 748, marg. pag.; is most this Wend., rule, Rogers, 489.) Following from the of the defendant to Gideon Payne clear, conveyance of such latter, acceptance Court, per Potted,
that the themselves intended to make convey- good ance the ; title to the undivided third reconveying of the Burnett and interests lot,” reserving only rights to the one-third did pertaining own, but to portion the other two-thirds that he did not own. The grantee accepted subject such reservation conveyance, the whole lot. consideration deed of expressed one-third Burnett a valuable con- lot, good sideration. The deed the consideration of one expressed thereim, thousand and the dollars, the reservation enjoyment of contained, of which reservation was enjoyment expressly declared to abe consideration conveyance. *15 The intent of is the manifest. It is for exer- parties clearly the claimed these cising enjoy reservations, action is This raises the next brought. we question to discuss. propose
It is that title to the whole wood on argued the Burnett lot was not a reservation in a granted the by conveyance by an owner undivided third of the if only same even he lot, had title third. It must be borne in mind that the in this deed was the owner other two undivided thirds of this is lot. It true it was not an indenture, both by but a deed signed parties, poll, signed only It is as a grantor. true, also, in law and in general'rule, that a man can neither logic, or reserve the title grant to that which hath not in he himself to or to reserve. While this grant I is do not understand that so, the defense to this action is based on the its but on the ground being grant, ground that even in a deed for a valuable poll, consideration, given was the who owner the estate or interest so grantee, who receives consideration reserved, the deed accepts reservations or which could be containing stipulations only himself, bound granted stipulations reserva- if such to be the intent of the tions, especially appears He cannot the title deed. of his deny This grantor. established law as was as the long ago Littleton. day Lord Coke (§ 374.) “And he Whereupon says: albeit, he in remainder when remain- indenture, yet party . 109 v. Potter, force der'entereth and have lands by agreeth contained he the conditions is bound indenture, perform 1 21, indenture.” Ca. Abr., 10.) Litt., 231, A; Eq. (Co. § in Cro. In the case Cumberland, Jac., of Brett v. reported Queen Cumberland, which was a lease tó there was a her seal and in which only affixed, lessee repair that the should well sufficiently stipulation therein, the mill and mill stones repaired keep lessee estate to died, devised against of covenant whom action repairing, brought &c. The whether the words was, patent signed question inure a covenant to lessor, should only by queen as. and it that it bind lessee and his was resolved ; assigns lessee takes shew, should, thereby, although words lessor yet only, accepting thereof it is as well his covenant in and shall it, enjoying facto, if him as it had been covenant inden bind strongly be found in the ture.” same principle may following of this 8 cases courts (Phelps Townsend, country. 1 11 Arthur v. 394; 475; id., Case, Pick., Flagg Flagg, 636; v. Bank 449; error, Wend., S. C. Torry Paige, Gale v. Cow., Orleans, 660, 661; Nixon, 448; Paige, *16 1 There is another v. rule Cachent, Comst., 103.) French ever which will courts, regarded by recognized into effect the intention favor for carrying purpose secure and to of this character, instruments the parties that who is, that has party parties; rights just and has to himself the benefit of contract, accepted- secured in the benefits, has himself courts used these estopped or force of the instrument, denying validity binding from (Dezell or v. asserting contrary. or up setting & v. Hill 3 Thomas Hill, 216, 221; Bell, Denio, by Odell, v. 25 Plumb Brush, Wend., 628; Costar 433, 434; Lalor, 18 N. Mutual Insurance Co., Y., 394; Cattaraugus County 483; 8 Wend., Canal v. Hathaway, Welland Company Lawrence v. 102; Seld., Barb., Brown, Sill, 395.) Otis v. of this I have able take case, that been In view any is as the exclusive defendant be regarded whether Court, per Denio, Ch. J. owner of all the wood the said Burnett or farm, only of such as becomes dead or part or fallen blown decaying, whether he tenant common down, of the undi- only vided one-third of such wood, to enter right said is limited to the premises reservation contained express in his to cut and tdlce the dead and away decay- trees.” He ing has all to enter the away conveyed right for other His to cut purpose. entry living and sound trees was therefore he had no more trespass; than a right to enter for stranger And purpose. can recover for other than although plaintiff damages for occasioned such for dam- damages entry, he can he show has sustained the use of these ages trees for for live for standing ornament, shade, protection, use as such other is beneficial to him the time during sound and remained has the trees, technical living right and was entitled to recover, As thin damages. this court would not merely have' nominal, reversed the that the record judgment used except might in another action as an between the adjudication relation and used as a and defense title, justification action in some like Bor rea- subsequent trespass. must be reversed and a new trial son ordered. judgment Ch. The deed the 14th 1848, exe- February, Denio, cuted the defendant to Gideon Payne, certainly conveyed to the latter whatever title had in the lands The deed .described it. executed the executors of Gid- eon under the contained vested that power will, title plaintiff. the defendant then, moment,
Assuming, the lots immediately seized the execution of the prior *17 the —which is most for favorable condition the defend- the ant; further, stipulations assuming, respecting are valid and the fallen and the dead trees decaying opera- tive their- natural what had the meaning, according defendant tó off the ten trees cut % carry living -They were the land possession, growing upon plaintiff’s Ill per Court, Denio,
Opinion of the Ch. J. was seized in and the fee; he stipulations do not to touch defendant but them, deed not only permit him It so. was a prohibit doing plain expressly and whether the without a-pretense right, act trespass, entitled to small, were great plaintiff damages fell them assessed and, hence, have jury; judge If the defendant could cut an error him. into nonsuiting the ten trees he could with carry away impunity, down tree same whole immediately every fifty do it and this if shall be of wood suffered land; acres judgment, will him in so. It nois stand, completely justify doing answer to that the will land forest not sufficient be say, if he is not to take off the plaintiff valuable permitted and wood to let it stand until timber but himself, obliged and then the trees shall down suffer the blow decay, his own It to take them to use. the owner defendant have his land to whether he wood lot determine would into land not. In converted arable some the State parts to the owner of forest land it' be beneficial would, perhaps, if it have it cleared of the even were talced off or timber, one should volunteer but, nevertheless, any who. up; burned do without the consent owner land would himself to an and would subject action for wrongdoer, This lead to the reversal of view would damages. judg- however the other should determined. ment, questions to have as this action seems been But brought pur- this forest settling rights respecting pose "examine the case in it is that we should another land, proper aspect. first, counsel are, positions plaintiff’s land on the the owner 14th Feb- being with his in connection assumed to 1848, when,
ruary, he could not it to the testator, resérve convey in his own or make a valid exception to himself, favor, land; and, or over perpetuity secondly, rights or reservation of owner, he were exception if in- this deed would be contained one character repug- reason. for that nant and void grant, *18 of the Oh. J. Court, per Denio, As to an undivided two-thirds of the part premises, defendant had no title. It was pretense legal parcel entered into between the and his arrangement testator son, of the 25th defendant, November, that the latter should have the use control of these two-thirds prem- ises in for some indefinite question whenever period, that, he should the testator two thousand pay dollars, should have from him that portion premises. The interest thus did not exceed that acquired possessed by vendee under articles of As to the one-third purchase. covered the deed sealed testator on signed the same whether title day, is, to the question any passed defendant deed. It was not delivered to the defend- nor to ant, one as his or for his imme- grantee, agent diate it but was use; the testator in the hands placed by E. a third Herrendeen, there to remain person, during lifetime of the said and then to testator, be delivered to The defendant was to have the grantee. immediate use — control—that but he possession part; bound'inmself to surrender that if, possession, whenever, he should make default in and maintenance providing support for the testator his according that behalf. could be further from the intention Nothing than that a title vest in the should defend- legal of it ant, signing paper delivery Herrendeen. If it should so the defendant vest, might convey incumber and thus frustrate the other premises, provis- ions of the arrangement. They contemplated nothing would be restore' testator to former necessary rights in the land except surrendering to him. If the defendant title did not as they clearly pass, act, should or other save the not, designed reconveyance, would be This was redelivery possession,. necessary. the situation of the title to the undivided one-third, unless* under rule some title law, immediately passed to the obvious intention of contrary parties. The defendant’s counsel maintains that the effect accordingly of what was done was the immediate transmission of the title *19 113 Payne. Hathaway v. Denio,
Opinion
Oh. J.
if that
cannot be established,
the defendant; or,
to
position
title
became absolute after the
an inchoate
which
that
passed,
when Herrendeen delivered the instru
death
the grantors,
maintain
the defendant. The casesreferred to fail to
ment to
of the
I
however,
the first branch
They do,
proposition.
a
a
that
be delivered to third
may
think,
person,
prove
delivered to the
as this
instructions
was,
finally
a
In
after
case,
.death
grantor.
grantee
that no title
until the final
is,
authority
passes
weight
that,
the title
then,
is,
relation,
delivery,
thereafter,
by
time
deemed to have vested as
of the first
delivery
If it
I
the third
were
should
person.
original question,
char
that such transaction
ofwas
testamentary
suppose
and that it
of the attest
would be
want
acter,
inoperative
But the cases
ation
the statute wills.
establish
by
required
should not
the rule as I have
now be
stated,
v.
6
disturbed.
Rowland, Wend., 669, 670; Rug
(Jackson
;
Lawson,
20
13
Stillwell v.
Johns.,
Hubbard,
v.
gles
285
2
Goodellv.
641, 643;
v.
44; Tooley Dibble, Hill,
Wend.,
661;
v.
Stew
Hunter
17
Price, id., 659,
Hunter,
Barb., 25;
14
8
v. Ladd,
art v.
Ladd
Stewart, Comst., 317;
Verm., 185;
v.
Wheelright
Norton Mansfield, Metc., 412;
Wheelright,
to have been seized these premises—that the time of the but for trees, vided third—at cutting At the to the testator in his lifetime. date his deed executed 1848 had not taken that the deed of effect, conveyance, had at not arrived which was operate period But to the it was com- the title delivery grantee. pass in the deed put parties grantors petent to the which it was to be delivered a an end A different to affect the ses manner premi question. arrange- and not the testator, ment was made, by these have By eventually premises. arrangement, the terms the deed of manifested February, and he release and was to, did, convey the defendant title of estate, all his every description, right testator Tiffany—Yol. VH. Oh. J. per Court, Debió,
which,he had question, grow- reserving until and the the first crops day ing November. further he also ensuing By reserved, provision, if he had to do so to himself and power instrument, his heirs and in fee assigns, perpetuity, simple, *20 all take and times to all the trees on the carry away premises thereafter all that should be blown that should down, die, all in a and which should be but he was condition; decaying cut down in order not to to trees; and, any growing protect the to those which should thereafter fall or be dead or right the was inhibited from decayed, equally cutting any The effect of the trees. the was, wood growing provision land on the lot was to be so far kept perpetually as forest, the hand man and' of was concerned, the consequence the trees destruction of the natural or the age, decay was to the elements, defendant, give successors in the the the wood of the title, trees property thus destroyed. that such an made Assuming arrangement, by competent in due form law, would be valid and legal parties, operative, the now to be considered whether the defendant question had a that he to such title could secure himself such a rights by reservation or in a Considered an exception deed-poll. no the dead and would, doubt, exception, operative upon then fallen timber so lot. That, far, certainly, the fallen trees, would be regarded personal property, him in to of his would belong right possession enjoyment under the former arrangement. But in then to trees respect future, growing, but which should thereafter come within scope I am of that the defendant had not such opinion provision, either on the a title, or a reservation. footing exception The could not of title, course having any, convey and not a able title, could not being convey secure one himself or reservation. An by way exception exception must be óf the and a parcel reservation must thing granted, be of some new over or in the which right thing granted, to create and attach to the seizin of competent- is the same as defend- premises. question though J.Oh. Denio, to some third person perpetual ant had assumed grant kind of on this forest in the trees land right in this deed. Such in the reservation grant mentioned for the of title in the want grantor, he inoperative would he can- for want of title which cannot grant right person for the The effect of to himself same reason. reserve to release the under existing facts, grantee’s and his interest under possession, equitable him to which enabled two-thirds covenant purchase effect, of two thousand dollars. It had also the the payment title arrangement by incidentally, abrogate vest in the defendant the delivery of the one-third should after Herrendeen the death had I do that it and his wife. not conceive Gideon Payne land other embraced effect parcel respect *21 lot on limited to the Burnett new was it. The arrangement not the of the and did touch trees were cut, portion which the It of lot 63. Ho. was quite which were parcel premises to the after Herrendeen deliver for Hr. therefore, right, de.ed under the the but the last survivor of grantors; the death of had no in to that delivery circumstances operation respect the Burnett lot. cannot take an that one under
The exception position a which he could not to himself, reservation thing grant obvious on seems title, enough general principles, want In The moreover well settled Moore by authority. and it is Barn. & one having Ald., Windsor, Earl Plymouth (3 66), were who redemption, parties joined equity redemption, subject premises, equity seized a under whom in sale by bargain conveyance to Windsor and the defendant the claimed, reserving heirs free out of and of his liberty body, hawking hunting was who the heir m upon premises. exercise the reserved, tail of undertook to Windsor, tres under land, owner conveyance, brought the facts appearing pass qua/re clausum/ defendant’s was given plaintiff plea, judgment Windsor, making reservation, ground party J.Ch. Court, per Denio, had no In estate the land. legal Cornell v. Todd (2 Denio, a whom the defendants under on the 130), person claimed, same to the day conveyed two but plaintiff another, separate one of the deeds adjoining parcels cmdreserv- land, excepting ing definite grantees, by description, portion included It fell out that a it. portion par- cel described as awas of the land embraced excepted, the other deed. It was held that the two could deeds not considered as of one and the same and the parts transaction, case was therefore of a to reserve presented grantor attempting himself not deed which the subject conveyed by In for an contained. exception trespass entry by defendants it was held that the excepted part, plain- tiff was entitled to These cases that a recover. show person either cannot, reservation or by way secure exception, himself a title in toor real of which he estate, seized at the time of Hence I am of making conveyance. that the defendant had opinion after the not, testator, title trees on the standing prem- ises him enable to cut and take them would away, though should or be blown down. die, decay
If brethren should concur both or either my fore would to examine conclusions, going unnecessary that a remaining questions. seized of My opinion is, person *22 estate inheritance it with such reserva may convey tion as is in contained that the would grantor have a fee estate in the reserved. Ho doubt simple such an interest would be inconsistent with the absolute which other terms of deed would ownership denote, and in that sense there would be a But similar repugnancy. reservations deeds fee have often been sustained our 11 v. 3 Case Mathews, Wend., 35; Wait, courts. (Dygert Jackson v. Law Borst v. 632; Seld., 33; Wend., Empie, The case of v. Wells 191.) (1 Kern., Johns., Craig rence, fee of the decides restriction only 315), grant uses shall make of is void grantees If the had reserved estate repugnant granted. .to which he from himself the prohibited rights Court,per Denio, Ch.J. that the would have it was conceded reservation exercising, valid. been
I am in from, favor reversing judgment appealed a new trial. ordering the first On ground, principal Davies, Weight, Davis, Oh. J. On concur with JJ., Denio, Beown Poetes, other discussed, Weight, points Poetee Beown, Davies, were with JJ., Pottee,
Campbell dissented judgment and Pottee, JJ., this court. reversed. Judgment