3 Johns. 484 | N.Y. Sup. Ct. | 1808
There was no proof of a payment, or security given for the payment, of any consideration by Hudson to Brown; and the question is, whether the instrument stated in the case, conveyed the land to Hudson. In my opinion it did pot. This instrument cannot have any operation, unless as a bargain and sale, under the statute of uses. In Mildmay's case, (1 Coke, 176.) this point was decided, and it was held, “ that a use cannot be raised by any covenant or proviso, or by any bargain and sale, upon a general consideration ; and, therefore, if a man, by deed indented and enrolled, according to the statute, for divers good considerations, bargains and sells his lands to another, and his heirs, nihil operatur inde, for no use shall be raised on such good consideration, for it doth not appear to the court that the bargainor hath quid pro quo, and the court ought to judge whether the consideration be sufficient, of not; and that cannot be when it is alleged in such generality.” This decision has not been overruled ;
That the words for value received, have a more extensive meaning, or import a consideration with more certainty, than the words, for divers good considerations, can scarcely be pretended. Indeed it has been settled in this courti m the case of Lansing v. M'Killip,
The position so frequently met with in the books, that every deed imports a consideration, is true only with re? spect to such deeds as are sought to be enforced as between the parties. Deeds conveying lands stand on different grounds, and have principles peculiar to themselves ; and I cannot admit, that the instrument under consideration declares the use to Hudson, and that, therefore, a consideration is not necessary; for it is impossible to conceive á more bald and naked deed, (if it deserves that appellation,) in all its provisions.
It may, perhaps, be said, that the want of a precise consideration in the deed, is mere matter of form, and that,
In the case of Bolton v. The Bishop of Carlisle,
This case has been submitted without argument, and the question presented for our decision is, whether the instrument in wridng given by Joseph Brown to Daniel Hudson, be sufficient to convey the title to the premises in question. The want of any consideration either expressed on the face of the instrument, or proved at the trial, is the principal objection to its operation. All deeds by which land may be conveyed, derive their effect from the common law, or from the statute of uses. It cannot be pretended that this instrument can take effect as a common law conveyance, either original or derivative. (4 Cruise, on Real Property, 100.) If it is to have
In the case of Ward v. Lambert, (Cro. Eliz. 394.) the deed recited, “ that whereas L. S. was bound in a recognisance, and other bonds for him, he for divers good considerations, bargained and sold the land to him and his heirs ; and this was held not to be a good bargain and sale. The court said, that in every bargain and sale there ought to be a quid pro quo ; but the vendor there had nothing for his land, and, therefore, it was void. If a man give land, or bargain and sell land to his son, no use arises thereby. If, then, a valuable consideration be necessary to raise a use, the next' question will be, whether the instrument before us, upon the face of it, imports the consideration required in a bargain and sale, under the statute of uses. If it does, it must arise either from the internal force of the words, u for value receroedf or by virtue of the seal. A valuable consideration is defined in the books, to mean money, or any other thing that bears a known value. (4 Cruise, 24.) This court, in the case of Lansing v. M'Killip, (3 Caines, 288.) considered the word® for value received, of little force and importance of themselves, towards making out a consideration. Independently of that decision, however, I cannot discover more efficacy in these words than in many others which have been used in instruments, that have been adjudged inoperative as bargains and sales. All the cases I have cited to show the necessity, of a consideration, plainly indicate, that if it is to be inferred from .the face of the deed, it ought to be
In Mildmay’s case, and also that of Ward v. Lambert, before referred to, the words divers good considerations, were considered insufficient to raise a use, being but general parlance, implying nothing, unless express considerations were shown ; for otherwise none would be intended. So in Fisher v. Smith, (5 Vin. Abr. 406. note.) the court were clear,that if one pleads a bargain and sale in which noconsideration of money is expressed, then he ought to supply it by an averment that it was for money; and that the words for divers good considerations shall not be intended for money, without an averment; "but if the deed expresses, for a competent sum of money, it is sufficient, without showing the certainty of the sum; and none shall say that no money was paid; for against this express mention in the deed, no averment that no money was paid shall be admitted. An acknowledgment in the deed of the receipt of money, ex vi termini, imports value, and the amount óf the consideration is immaterial. It has been repeatedly ruled that, if in pleading a bargain and sale, no valuable- consideration is shown, it will be ill on demurrer. In many cases the verdict has been deemed to cure this defect, which must have been on the ground, that- after verdict, the consideration is presumed to have been proved on the trial, (1 Lord Raym. 111. 1 Wils. 91. 2 H. Black. 261.) From all the cases referred to, it is evident that the court did not gonsider the seal, as virtually importing the requisite con
I am of opinion that the deed from Brown to Hudson was sufficient to convey his interest in the premises.
I agree that the deed, if it operates at all, must operate as a bargain and sale under the statute of uses.
At the common law, a feoffment or lease was valid, without any consideration, in consequence of the fealty or homage which was incident to every such conveyance. The law raised a consideration out of the tenure itself. But after the statute of Quia Emptores, (18 Ed. I.) Perkins says, that a consideration became requisite even to the validity of a feoffment, as none could be implied, since, according to the statute, no feudal duty or service resulted to the immediate feoffor. (Perkins, sect. 528— 537.) The general, and the better opinion is, that the notion of a consideration first came from the court of equity, where it was held necessary to raise a use ; and when conveyances to uses were introduced, the courts of law adopted the same idea, and held that a consideration was requisite in a deed of bargain and sale. This new principle in the doctrine of assurances by deed, met, at first, with a very strong resistance frem the ablest lawyers of the age. Plowden, in his argument in the case of Sharington v. Stroffen, (1 Plowden, 308, 309.) which arose upon a deed under the statute of uses, contended, with great force of reason and authority, that a deed, which
The rule requiring a consideration to raise a use, has become merely nominal, and a matter of form; for if a sum of money be mentioned, it is never an inquiry whether it was actually paid, -and the smallest sum possible is sufficient: nay, it has been solemnly adjudged, that a pepper-corn was sufficient to raise a use. (2 Vent. 35.) Since, then, the efficacy of the rule is so completely gone, we ought, in support of deeds, to construe the cases which have modified the rule, with the utmost liberality.
The deed in the present case states, that for value received of the grantee, he doth grant," &c, and can it now be permitted to the grantor to say there was no value received? Value received is equivalent to saying, money
The law from the beginning has been very indulgent in helping out deeds, on the ground of consideration. If no consideration be expressed, one may be averred in pleading, or proved upon the trial. (Mildmay’s case, 1 Co. 175. Fisher v. Smith, Moore, 569.) In pleading a bargain and sale, in which no consideration is expressed, it was held, (in Smith v. Lane, Moore, 504.) that the bargainee need not aver payment of money, because it was implied. This was afterwards held otherwise ; but it has been lately held by the court of C. B. (2 H. Black. 259.) that this averment was but matter of form, and the omission of it cured, on a general demurrer. This last decision seems to have almost done away even the form of the old rule, for it can hardly be necessary to prove upon trial, under the general issue, a fact which is matter of form, and not of substance. A plaintiff is bound to prove only what would be considered as material averments, and matters which go to the substance of the action.
But I place my opinion on the ground that the deed contains a sufficient averment of a consideration, to estop the grantor, and to give the deed operation, under the statute of uses. I am not apprized of any case which is an authority against this conclusion. In Lansing v. M'Killip, (3 Caines, 286.) two of the judges intimated that value received did not supersede the necessity of averring, and proving a consideration in a special agreement; but another of the judges went largely into the support of a contrary opinion. The case, however, was not decided upon that ground,, but upon another, via. that where the plaintiff alleges two good considerations in his declaration, he must prove them as laid.
My opinion on both points, accordingly, is, that the plaintiff is entitled to judgment.
Van Ness, J. and Yates, J. were of the same opinion.
Judgment for the plaintiff.
Vide 1 Lec. 170. 2 Roll. Abr. 786.
Sand. 340 a.
2 Bl. Comm.296.
5 Caines, 287.
2 H. Black. 261.