33 Pa. 247 | Pa. | 1859
The opinion of the court was delivered by
If the instrument dated July 7th 1834, was an executory contract, then the absence of words of inheritance does not prevent its passing a fee simple in equity. The primary question in this case, therefore, is, whether that instrument is to be construed as a conveyance, or as an agreement to convey. And the rule is, that whether an informal instrument, transferring an interest in real estate, shall be held a conveyance, or only an agreement for a conveyance, depends not on any particular words or phrases found in it, but on the intention of the parties, as collected from the whole contract. The intent of the parties will control the technical words used: Jackson v. Myers, 3 Johns. 389 ; Neave v. Jenkins, 2 Yeates 107 ; Sherman v. Dill, 4 Yeates 295; Kenrick v. Smick, 7 W. & S. 41.
There are words in this instrument which import a present conveyance. We think there are others which indicate that it was not intended as a final disposition of the subject-matter; and if it was not, then the contract must be regarded as executory. If it take effect at all, as a present assurance, it must be as a deed of bargain and sale. It is not easy to see, however, how it can so operate, for while there is a bargain to declare an use, there is no consideration paid to raise one. The land is said to be conveyed in consideration that the vendee pay unto the vendor one-third of the produce during her natural life. It is not in consideration of his having paid it, nor of his promise to pay it, but rather upon condition precedent that he should pay it. If he complied with the condition, then he was to have free and peaceable possession, clear of all encumbrances. Stephen Wilcox, the vendee, did not sign the paper, and therefore there was no express engagement, on his part, to pay the consideration. Mrs. Cranmer took no security for it. There was not enough in the case for the law to imply a promise, on the part of the vendee, to pay, for he did not take possession under the instrument, and was not entitled to it until he should have delivered one-third of the produce during the natural life of the vendor. The purpose of the instrument was so evidently to make provision for Mrs. Cranmer, while she should live, that it can hardly be presumed her intention was to part with her interest irrevocably, without effectuating her purpose. This presumption seems still less reasonable, when it is noticed that she reserved for herself a life interest, which might have survived the estate of her grantee, if a present conveyance was intended. It is true, that in most cases where an informal instrument, containing words of present conveyance, has been held to be only an agreement to convey, there have been other words expressive of a
The judgment is affirmed.