49 Cal. 369 | Cal. | 1874
This is an action brought by the administratrix of the estate of Horace Hawes, deceased, to quiet the title to certain real estate of which it is claimed the said Horace Hawes died seized, and which descended to his widow and' heirs-at-law. The defendants by their answer, claim to be the owners in fee of the said real estate; and they found their claim of title upon a certain instrument, called “ the deed of foundation of Mont Eagle University,” which they allege was executed by Horace Hawes in his lifetime, to-wit: on the 24th day of February, 1871. The plaintiff demurred to the answer, on the ground that it did not state sufficient facts to constitute a defense—that is to say, that the deed is void. The demurrer was sustained.
The deed purports to “give, grant, alien and convey ” unto the defendants, their associates and successors, the real estate in controversy, in trust for the establishment and maintenance of Mont Eagle University, “to have and to hold the above granted lands and property, subject to the reservations aforesaid, unto the said parties of the second part, their associates and successors, to be appointed as hereinafter provided forever.” One of the reservations which precede the habendum clause, is as follows: “ Be-serving also unto the said grantor and party of the first part, in all the property herein granted and conveyed, an estate coupled with the possession and the rents, issues and profits thereof, to continue for and during his natural life.” The other reservations need not be noticed.
The instrument under consideration was evidently intended as a deed, and not as a covenant to stand seized to uses, or as a will.
The plaintiff’s position is that the instrument is to be construed as creating a freehold, to commence in futuro, and therefore void. The common law of England was adopted by the statute of this State as the rule of decision. One of the rules of the common law is that an estate of freehold cannot be granted to commence in futuro, without the creation, at the same time, of a particular estate, which vests in
Judgment affirmed. Remittitur forthwith.
Mr. Justice MgKinstry did not express an opinion.