Jackson ex rel. Howell v. Delancey

4 Cow. 427 | N.Y. Sup. Ct. | 1825

Curia, per

Savage, Ch. J.

In my opinion, the Judge properly admitted the testimony of Mrs. Buice. Her interest, if any, was extremely remote and contingent. Craw-buck was properly admitted, if his conveyance was merely a quit-claim; though otherwise, if he had warranted the title. How the fact was, the case does not inform us ,• and it lay with the plaintiff to show the warranty, if it existed.

But the important question is upon the validity of the deed from Deitz to Buice. It cannot operate as a bargain and sale for want of pecuniary consideration, (1 flmmn's Rep. 622,) and if it cannot operate as a covenant to stand seised, it is void, because it purports to convey a freehold in futuro. (7 Mass. Rep. 384.) It certainly cannot operate as a covenant to stand seised, for want of the considerations of blood or marriage. It is settled, that where there is a consideration stated in a deed, and it is not said, for other considerations, you cannot enter into proof of any other; for that would be contrary to the deed. (7 John. Rep. 342.) The consideration stated in this deed is as follows: “ in consideration of the performances hereinafter mentioned.” Those performances were expressed by way of condition to this effect: 1. That the grantor should occupy and enjoy for life. 2. That after his death, Buice should pay Frederick Howell, £100, &c. 3. That Buice should find and provide for the grantor, meat, drink, &c. 4. That Buice should occupy one house, and pay £60. In consideration of performing these things, after the death of the grantor, Buice was to have an estate of inheritance.

The case then comes within the principle of Jackson v. Florence, (16 John. Rep. 47,) unless the stipulation, or rather condition, that £100 be paid to Howell, distinguishes it. In that case, the lessor was a blind and infirm old man, and the consideration was his support for life. Here Deitz was an old man, extremely intemperate, and the only pecuniary consideration is a condition to be performed after the grantor’s death, until which event the estate is not' to vest. There was no covenant whatever, on the part of Buice, to perform the conditions; and his going into possession of one house and lot cannot raise an implied agreement to perform them. He was to pay rent for the use of the house. It was, then, perfectly optional with him to perform the conditions, or not.

It was contended on the argument, that the conveyance was of a present estate absolutely, to be defeated by the non-performance of conditions subsequent. It is certain, however, that no estate passed till the death of the grantor. The support of the grantor must have been his inducement for malting the deed. The grantee was under no obligation to afford such support, nor was he obligated to make the payment. The deed, then, when -.executed, was inoperative and void.

The premises in question are not designated hy the deed, except under the general description of all my estate. S uch a description has been adjudged insufficient in a sheriff’s deed; but the same considerations do not apply as between individuals. On the whole, however, I am of opinion, that, all other objections aside, the deed in question is inoperative as a bargain and sale, for two reasons: 1. Because there is no pecuniary consideration; and 2. because it purports to convey an estate in fee simple; to commence in futuro, without any other less estate to support it.

Judgment for the plaintiff.