47 N.J. Eq. 365 | New York Court of Chancery | 1890
This is a partition suit. The title to one of the tracts which the complainants seek to have divided is in dispute. The defendant asserts title to the whole tract; the complainants, on the other hand, assert a title to the undivided half of it, but admit that the defendant has title to an undivided fourth and that the title to
Both parties claim under David Curtis, who died testate between 1783 and 1788. At the time of his death he owned two undivided sevenths of Manasquan Beach, one of which he acquired from Elisha Lawrence, by deed dated July, 1770, and the other from Benjamin Lawrence, by a deed which it is alleged is lost. Among the gifts made by David Curtis by his will there is one which reads, in substance, as follows:
“ I give and devise unto my eldest son Elisha that right of beach I bought of Elisha Lawrence — to him and the heirs of his body lawfully begotten, and for the want of such heir or heirs, then to be equally divided between my two ■sons John and Benjamin.”
David Curtis, besides limiting over to his two sons, John and Benjamin, the land devised to his son Elisha, made John and Benjamin his residuary devisees, and they, as such devisees, took that undivided seventh of Manasquan Beach which had been conveyed to their father by Benjamin Lawrence. The thing in dispute is the one-half of that seventh which David Curtis acquired from Elisha Lawrence, and which he by his will limited over to his son John, in case his son Elisha, for the want of heirs of his body, did not take it. The defendant claims this-half and puts forward as the foundation of its title a deed purporting to have been made on the 31st day of May, 1788, by John Curtis to Joseph Lawrence. The whole contest between the parties centres in this deed. If it passed the land in controversy, the defendant will be entitled to prevail in this suit; if it did not, the complainants will be entitled to the decree they ask. The complainants contend, first, that the deed has not been sufficiently proved to entitle it to be admitted in evidence; and, secondly, that if it was admitted, no effect could be given to it — first, for the want of apt words to pass any right or estate which the grantor may have held at the time of its execution; and, second, becausé the grantor
It is undisputed that Elisha Curtis, the eldest son of David, died childless, never having had issue of his body. John died before Elisha. Their deaths occurred very near together in point, of time, but the proof makes it entirely clear that John died' first, so that it was undetermined when John died whether or not Elisha would have issue of his body. As the law stood whea the devise to Elisha took effect, it is clear that he took an estate-tail in the land devised. Our statute cutting an estate tail down-to an estate for life in the first taker, with remainder in fee to the-issue of his body, was not passed until 1820 (Elm. Dig. 130 § 6), and the devise to Elisha took effect prior to 1788. Chief-Justice Kirkpatrick stated with great clearness, in Den. v. Taylor, 2 South. 413, 417, what words would be held to be sufficient to-create an estate tail. He said: “ It is as well settled that a devise-to one and his heirs, and if he die without issue, then over to-another, creates an estate tail, as if the principal devise had been in the most technical language, to him and the heirs of his body. The words of the devise over — if he die without issue then over-to another — limit the generality of the term heirs in the principal devise, and lead us to the inevitable conclusion that the testator-intended heirs of the body only, and not heirs generally. And whenever this intention can be collected from the whole will,, taken together, let the phraseology in the particular clauses of it be what it may, it has been always construed to make an estate-tail.” This statement of the law has been so uniformly followed by the courts of this state as to have become a canon of real property law. Moore v. Rake, 2 Dutch. 574, 585. It is entirely clear that Elisha Curtis took an estate tail in the land in- controversy.
. This being so, it necessarily follows that the devise over to-John and Benjamin, in case Elisha did not have issue of his body,, gave them a vested remainder in fee, subject to be defeated by the-birth of issue to Elisha. The law is settled, that a remainder limited upon an estate tail will be held to- be vested,, though it is-
“ I give to my son Isaac, his heirs and assigns, all my lands whereon I now live, to hold to him, his heirs and assigns forever, but if my son Isaac should die without lawful issue, then I give all my land to my wife, her heirs and assigns forever.”
The testator’s son Isaac died in 1843, without issue, never having been married. His mother, the testator’s widow, died in 1832, over ten years before Isaac. The controverted question in' the ease was what estate the testator’s wife took under the devise. The court held that she took a vested remainder, and not by way of an executory devise, nor a contingent remainder. Each of the three judges who wrote opinions — Chancellor Williamson and Justices Elmer and "Vredenburgh — so expressly declared. Justice Vredenburgh (p. 586) gave the following summary of the leading rules distinguishing a vested from a contingent remainder: “An estate is vested Avhen there is a present fixed right of present or future enjoyment. The law favors the vesting of remainders, and does it at the first opportunity. It is the present capacity of taking effect in possession, if the possession were to become vacant, that distinguishes a vested from a contingent remainder. - It is the uncertainty of the right which renders a remainder contingent, not the uncertainty of the actual enjoyment. A remainder limited upon an estate tail is held to be vested, though it is uncertain if the possession will ever take place.” There can, therefore, be no doubt that John Curtis, by force of the devise to him, took a vested remainder in fee in the land in controversy, and it is equally certain, if such was the character of his estate, that he had good right and full power to make an effectual conveyance of it during the life of his brother Elisha.
If a different conclusion had been reached as to the nature of John’s estate, and it had been found that the remainder limited
Assuming for the present that the deed on trial has been sufficiently proved to entitle it to be admitted in evidence, the next question is, what effect shall be given to it. Did it pass the estate of John Curtis in the land in controversy? Its granting clause is in these words:
“ Witn.esseth that the said John Curtis, for and in consideration of the just ,and full sum of sixteen pounds, proclamation money, hath remised, released 'and forever quitclaimed, and by these presents, for himself and his heirs, doth fully, clearly and absolutely remise, release and forever quitclaim unto the said Joseph Lawrence all his right, title, interest and property” &c.
“To have and to hold the above [then designating the thing conveyed] with all and singular the privileges and appurtenances thereunto belonging (reserving liberty to fish and gun), to the only proper use, benefit and behoof of him, the said Joseph Lawrence, his heirs and assigns forever; so that neither he, the said John Curtis, nor Mercy his wife, nor their heirs, nor any other person or persons, for themselves, or any other of the name, or in the name, right or stead of any of them, shall or will, by any way or means, hereafter claim, challenge or demand any right, title or interest of, in or to the said right or any part or parcels thereof.”
"When the granting clause of a deed is silent as to the estate intended to be conveyed, resort may be had to the habendum to ascertain the intention of the grantor in that regard. It cannot be used either to enlarge or diminish the estate specifically defined, in the granting clause, for if it is repugnant to that clause it is void, but if that clause is either silent or ambiguous, then the habendum becomes the standard by which the estate granted must be measured. The chief-justice, speaking for the court of errors and appeals, in Staffordville Gravel Co. v. Newell, November Term, 1889, said: “ The well-settled rule is, that, if the granting part of the conveyance does not, by clear and definite terms, conclude the question, this clause [the habendum], whose office is to define the extent of the ownership granted, may be resorted to. It may be used to explain, but not to vary or control, the premises.” And Justice Depue, in speaking for the same court, in Melick v. Pidcock, 17 Stew. Eq. 525, 540, said: “ To create a fee the limitation must be to heirs, but it may be made either in direct terms or by immediate reference, and it is not essential that the word heirs be located in any particular part of the grant.” No doubt can be entertained that if this instrument passed anything, it passed a fee.
“A deed that is intended and made to one purpose may enure'to another; Lr if it will not take effect that way it is intended, it may take effect another-way. And therefore a deed made and intended for a release may amount to a grant of a reversion, an attornment or a suxu-ender, or e converso. And if a man-have two ways to pass lands by the common law, and he intended to pass them-one way, and they will not pass that way, in that case ut res valeat they may pass the other way.”
Judge Hare, in his notes to Roe v. Tranmarr, Willes 682 ; S. C., 2 Wils. 75, says: “Any instrument which shows that a title was-meant to be given in return for value received [will be] equally effectual with the most formal deed : words to raise a use, andi
We now come to the question, has the deed been sufficiently proved to entitle it to be admitted in evidence? It was not acknowledged, but purports to have been executed in the presence of two subscribing witnesses. If it is an honest paper it was executed over one hundred years ago. This great lapse of time puts it out of the power of the defendant to call the subscribing witnesses, or to produce any direct evidence of the authenticity of the signatures of either the subscribing witnesses or the grantor. All persons who could give such evidence we know must have been dead for years. The antiquity of the paper appears to me
But there is other evidence on this point. The deed on trial, it will be remembered, purports to have been made May 31st, 1788, by John Curtis to Joseph Lawrence. Joseph Lawrence— Curtis’s grantee — conveyed the same land to James Price, by deed dated November 16th, 1790. This latter deed, though purporting to have been executed in the presence of three subscribing
But the mere fact that a deed is ancient will not of itself warrant the presumption that it is genuine and entitle it to be admitted in evidence. Even according to the English rule, which seems to be somewhat more indulgent than that prevailing in this country, it is required that, in addition to proof of antiquity, there shall be evidence that the deed comes from the proper custody or depository, to justify its admission in evidence. Lord Ellen-borough, in Roe v. Rawlings, 7 East 279, 291, said: “Ancient deeds, proved to have been found amongst deeds and evidences of land, may be given in evidence, although the execution of them cannot be proved; and the reason given is, that it is hard to prove ancient things, and the finding them in such a place is a presumption they were fairly and honestly obtained, and reserved for use, and are free from suspicion of dishonesty.” Stated in substance, the rule given by Phillipps is this: If an instrument is thirty years old, and is proved to have come from a proper place of custody, it may be admitted in evidence without any proof of its execution. Suoh an instrument is said to prove itself. 2 Phil. Ev. 475. There is proof in this case that the deeds under consideration came from the proper custody. A son of James Johnson, to whom the land in controversy was conveyed in 1836, and who retained the title until 1880, swears that he saw the deeds in his father’s possession as far back as he can remember. He was thirty-eight years old at the time he testified. He also said that he had seen the deeds frequently during his father’s life and looked them over, but would not say that he had ever read them entirely through. He was sure, however, that they were the same two deeds which he had seen in his father’s possession because of certain distinguishing marks, which he mentioned, and also because he found them among his father’s papers after his father’s
The foregoing summary shows, I think, that three facts, tending to demonstrate the authenticity of the deed, may be considered 'proved — -first, that the deed has been in existence for nearly one hundred years; second, the possession of the deed by James Johnson, to whom the land was conveyed in 1836, warrants the belief "that whenever the title to the land changed the deed was delivered 'to the person taking title as a muninent of his title ; and, third, that there have been three different assertions of title to the land under the deed — the first in 1790, when Lawrence conveyed to Price; the second in 1813, when Price conveyed to Price, and the third in 1836, when Price conveyed to Johnson. The first of these — that which was made in 1790 — it will be observed, was made so near the time when the deed on trial was executed, that it is highly probable John Curtis heard of it. It is scarcely .possible to believe that he did not. He was then living in the neighborhood where the transaction occurred. He did not die until 1812 or 1813. The deed of 1790 was executed in the presence of three witnesses. This fact shows that no effort was made to conceal its execution, but the effort was rather in the -opposite direction, to give publicity to it. Such transactions even -at this day, in sparsely populated neighborhoods, attract public attention and form the subject of conversation wherever men meet. This was undoubtedly the case in 1790, when such transactions were much less frequent than they are now, and when they doubtless excited much greater general interest than they do now. It thus appears, as I think, that when we come to take an account of the probabilities of the case, the mind is .naturally led to believe, from the facts in evidence, that John Curtis must have 'heard of the conveyance of 1790, and that he did not attempt to defeat it .because he knew that Joseph Lawrence in conveying the land had simply done what he had a lawful right to do.
The rule as to what evidence, in addition to proof of antiquity and that the deed comes from a proper source, is required to justify the admission of an ancient deed in evidence, without proof of execution, is not entirely settled in this country. The
There is an interlineation apparent on the face of the deed. This, it is said, so greatly discredits it that no effect should be given to it. As originally drawn, the deed described the land conveyed as that undivided half of the one-seventh of Squan Beach which David Curtis left to his son John, without saying whether the half which it conveyed was the half of that seventh which Elisha Lawrence had conveyed to the testator, or the half of the seventh conveyed to the testator by Benjamin Lawrence. The half of the seventh conveyed to the testator by Benjamin Lawrence, it will be remembered, was devised to John absolutely, with an immediate right to possession, while the whole of the one-seventh conveyed to the testator by Elisha Lawrence was devised, in the first instance, to Elisha Curtis and the heirs of his body lawfully begotten, with a limitation over to John of the one-half of that seventh in case Elisha Curtis did not have an heir of his body. As originally drawn, the deed deseribed the land which it conveyed as that half of an undivided seventh of Squan Beach which David Curtis left to his son John. With this description unchanged, there can be no doubt, I think, that the deed would have passed that half of the one-seventh in which John had a present absolute estate, and not the half of the other
As to the land in dispute, the complainants’ bill must be dismissed.