9 Wend. 611 | Court for the Trial of Impeachments and Correction of Errors | 1832
The following opinion was delivered:
The deed from Deitz to Buice, in relation to premises other than those now in question, was examined by the chief justice in Jackson v. Delancey, 4 Cowen, 427, and was considered by him inoperative as a bargain and sale for the want of a pecuniary consideration; as a covenant, to stand seized for the want of consideration of blood or marriage ; and as a common law conveyance, being an attempt to convey a freehold in futureThe principal ground upon which the decision upon the deed in that case is put, is the
While uses were the subject of exclusive equity jurisdiction, and before the statute, they might be limited over upon the happening of future events to an indefinite extent, Bacon’s Reading on the Stat. Uses, 18, n. 130; 210, n. 131, 226; Cruise, tit. 14, ch. 5, § 16; and a use might be limited after a fee, or might be created in futuro without any preceding estate. 2 Black. Comm. 330. Cruise, tit. 14, chap. 5, § 16. 4 Kent’s Comm. 287. The statute of uses having annexed the possession to the use, the courts were at first inclined to apply the rules of the common law concerning the conveyances of real estate to this new conveyance, and decided in opposition to the strict doctrine of uses, that limitations of uses in remainder should be void in those cases where common law remainders would be, for the reason to have permitted future uses to take effect after as before the statute, would have established perpetuities. Chadleigh’s case, 1 Co. 134, 138. Bacon’s Read. 110, n. 130. Cruise, tit. 16, ch. 5, §15. This construction was afterwards departed from; and upon an expression in the statute, many of the limitations which had been allowed by the court of chancery in declarations óf uses, before they were united to the legal estate, were supported by courts of law. Cruise, tit. 23, ch. 5, § 16. Mutton’s case, Dyer, 274, S. is said to be the first case of a limitation of uses to arise in futuro without any preceding estate to support them since the statute. They are called since, as they were before the statute, springing uses, and may be limited to arise within the period allowed by law in the case of an executory devise. Cruise, tit. 32, ch. 36, §11, 12, 13. Among other things necessary to execute a use, there must be a person seized to the use of the person in whom it is to be executed. 1 Co. 126, a. Cruise, tit. 11, ch. 3, § 7. In a conveyance which operates by transmutation of the possession of the land, such as feoffment, fine, <&c. the use is raised out of the seisin of the grantee created by the conveyance. A feoffment to A. in fee to the ase of B. in fee at the death of C. is good, and the use
I assume that the deed under consideration may be considered a bargain and sale, if there was a sufficient consideration to support it, as this was not, and indeed could not be questioned upon the argument. It in terms conveys an absolute estate in fee to Buice of all the real estate of the' bargainor, with a reservation to him for life, and gives the immediate possession and occupation of the lot in question to Buice, at an annual rent of £60 during the life of the bargainor. Whether we view the deed as to the lot in question as a bargain and sale to the use of Buice in fee after the death of the bargainor, or to be deemed to operate as an immediate conveyance in fee, taking the whole deed together, is, according to the principles above laid down, and which are I tiiink beyond question, unimportant; for in either case, without a consideration it would be inoperative, and with on^ it would be valid. In the former case, the use would nfemain by implication, as it is called, in Deitz, the bargainor, and on his death would be executed in Buice as a future and springing use, and in the latter it would be executed in him immediately. It was a maxim in equity in relation to uses, and which has been adopted by courts of law since they became the subject of common law jurisdiction, that so much of the use as the owner of the land does not dispose of remains in him; therefore, if a person seized in fee levies a fine, or suf
Was there a sufficient consideration to support the deed as a bargain and sale ? Bince the statute of uses, a rent may be reserved upon a bargain and sale, because it is the land which is conveyed, and not merely the use upon which rent could not bo reserved, as. the bargainor could not have recourse to it for the rent bydisiress. 2 Co. 54. Wykes v. Tyllerd, 2 Cro. Eliz. 595. This last case is an express adjudication upon the point, and the reservation, however trifling, (twelve pence, 10 Co. 34, a. or a pepper corn, 1 Mod. 262, 3, 3 Salk. 386, 7, or a penny, 1 Co. 24,) is a sufficient consideration to raise an use upon a bargain and sale. Sand.on Uses, 341, n.a. Cruise, tit, 32, ch. 11, § 35. In England bargains and sales must be by indenture, which is’an instrument signed by all parties, or there are as many parts as parties, and which are inter
It may be said that the rent reserved upon the lot in question is only a consideration for the use and occupation of the same during the period of time it is reserved, and that it cannot be deemed a consideration for any interest in the land beyond that time. It has been fully shewn that the consideration sufficient to support a bargain and sale has become purely technical, without substance or value, and of course it is not important that courts should be over astute in the enforcement of the rule. A penny, a pepper corn, or red rose, has generally been adjudged a good consideration. The amount or value of the rent resen ed, then, not being material, the length of time for which it is reserved would seem to be of no importance, within the spirit and meaning of the rule. But the deed as to this lot is in effect a conveyance by bargain and sale in fee, in consideration of the payment or obligation to pay an annual rent of £60 for the life of the bargainor. This is a sufficient consideration to satisfy the technical rule of law, and upon the whole deed it is manifestly the intent of the bargainor to convey an estate in fee.
It is said a bargain and sale void in part is void in the whole. This no doubt is true as a general proposition, but the principle of the rule is not applicable to this case, if the view I have taken of it be correct. On the ground that this lot is an exception from the reservation of the life estate in the deed, and that there is a sufficient consideration to support it, the title passed immediately upon taking possession of the lot, or accepting the deed by Buice, while the title to the residue of the lands remained in Beitz; and within the principles of Fairfield v. Rogers, 1 Cro. Eliz. 340, and which are fully stated in Knight’s case, 5 Co. 55, the deed may be viewed in the light of two distinct conveyances : the one of the lot in question, the other of the remainder of the lands. In that case, the tenant in tail demised two distinct pieces of land for 21 years for separate rents; the lease as to one parcel was void under the 32 Henry 8, and the only question was whether the whole lease was thereby void. It was adjudged good
I have not deemed it important to examine at large the question of possession. The evidence on this point is loose and unsatisfactory. Admitting the deed to be inoperative and void, 1 think the possession taken by Buice must be deemed to be in the character of tenant to Deitz, and being such tenant, those succeeding to his interest or possession would be in under the same character. Such possession could not avail the lessors in establishing their title as against those claiming or holding under Deitz. If in possession, they would be estopped from setting it up, and it can be of no moré avail to them, being out of possession.
Upon the whole, my opinion is that the lot in question is an exception from the reservation of the life" estate to the grantor, and as to this lot, the deed is an immediate conveyance in fee to Buice, with the reservation of an annual rent during the life of Deitz ; and that the reservation of the rent is a sufficient consideration to give effect to the deed as a bargain and sale, upon the possession being taken under it. The legal estate, therefore, became vested in Buice, under whom the lessors of the plaintiff claim. The plaintiff is therefore entitled to judgment.
Judgment was accordingly rendered for the plaintiffs; whereupon the case was turned into a special verdict, and the defendant sued out a writ of error.
The cause was argued in the court for the correction of errors by
B. F. Butler & S. Talcott, for the plaintiff in error.
G. Wood S. Boyd, for the defendants in error.
Points presented and argued by the counsel for the plaintiffin error:
1. The plaintiff in ejectment can recover only upon a legal title: and in the present suit no such title was shewn in the plaintiff or his lessors.
3. The consideration, if any, upon which the fee was to vest in Buice, was the performance” during the life time oí Beitz of certain conditions specified in the deed, and theynry have not found that these conditions were, in any part, performed.
4. There was no immediate grant of the fee of the premises now in question, as supposed by the supreme court; but tho fee of this lot, as well as of the others, depended upon the performance of other conditions than the payment of the £00 á year for the use of it during Bcitz’s life. The payment of the £60 a year “ to occupy and be in possession of” the premises during Deitz’s life was not a consideration entitling Buice to claim the fee of the premises after Deitz’s death; nor could it be recovered from him as such.
5. Even if the annual payment of £60 a year (expressly for the a occupation and possession” of the premises during Deitz’s life) could be a consideration or condition upon which thejfec was to pass to Buice after Deitz’s death, still it could pass only on the performance,” (the payment by Buice of the £60 a year,) and would not pass upon or in consequence of any act of Buice merely rendering him liable to he sued * in case of non-performance or non-payment; and it is not found by the jury that he ever did perform or pay any part of it.
6. It is not found that the mortgage under which the lessors of the plaintiff claimed was forfeited, or that any thing had become due on it at the commencement of the suit, or at any other time.
7. Rogers, the defendant below and the plaintiff in this court, shewed a good title under the will of Beitz and the deed from Howell
8„ The prior possession of Buice under the void deed, or that of those claiming under him, cannot avail against one in possession having the true title ; and that too under the same
Points presented and argued by the counsel for the defendant in error:
1. The deed from Deitz, the acknowledged former owner of the premises in question to Buice, is a deed of bargain and sale; and if it pass a fee simple estate, to take effect at a future period, it is good for that purpose, being a deed operating under the statute of uses.
2. The deed in respect to the premises in question in this cause passes a present estate in fee simple, to take effect not in expectancy, but immediately, upon the execution of the instrument.
3. There is in the deed a valuable consideration to support it, viz. the rent of £60 a year reserved to Deitz during his life, which is a valuable right recognized in the law, and for the recovery of which actions would lie ; also the other acts to be done on the part of Buice the grantee, and for the performance of which he became liable in an action of assumpsit upon the acceptance of the deed, which was the consummation of its delivery.
4. The lessors of the plaintiff acquired a title to the premises in question by twenty years adverse possession thereof under a claim of title.
The following opinions were delivered:
The right of the lessors of the plaintiffin this case depends upon the validity of the deed of the 3d of July, 1799, from J. Deitz to A. Buice. If the deed was valid, as to any part of the premises contained therein, it was a revocation of the will of November, 1798,pro tanto, and nobody but the heirs at law of the testator had any title to the land, or the right to enter for the breach of a condition subsequent, even if it had been expressly found, by the special verdict, that the grantee did not provide meat, drink, washing and lodging for the grantor during his life, or pay to the nephew the £100 mentioned in the deed, and that Howell en=
These principles are equally applicable to the claim of the lessors of the plaintiff, arising from the statute of limitations. To bar the right of the real owner by adverse possession, it is necessary that the premises should have been held adversely for the space of twenty years, by the person who seeks the benefit of the statute, or by those under whom he claims title. Although it is found that Buice'was in possession of the premises, and that he conveyed to Crawbuck in July, 1803, it is not found when the latter entered under that conveyance : neither is it found that he held adversely to the claim of the devisee, or that the possession was continued for the term of twenty years before the devisee entered under his writ of possession. If the facts of the case were sufficient to authorize the jury to find that Crawbuck entered at the date of his deed, under a claim of the title in himself, and that he and his tenants or assigns continued to hold the premises adversely for the term of twenty years, the special verdict should have been drawn up and settled in such a manner as .to make it- appear upon the record that the jury found the fact of such entry and adverse holding. Where a case for the opinion of the court is turned into a special verdict, every fact which the court or the jury were authorized to find from the evidence stated in the case, and which if found by the jury in a special verdict would go to support the judgment of the court, should be stated in the special verdict as having been thus found by the jury.
It was not necessary for the jury to find that the money which was secured to be paid by the mortgage was not in fact paid. If the defendant wished to defeat the title of the lessors of the plaintiff by the fact of the payment of the mortgage money, he should have established that fact by proof. It was sufficient for the jury to find the execution of the mortgage ; and as the time for the payment of the money was past, the mortgagees were entitled to enter. The payment of the mortgage money cannot be presumed against the lessor of the
The two principal objections to this deed as a conveyance under the statute of uses are, that it attempts to convey a freehold in futuro, without any particular estate to support it as a remainder, and that there is no sufficient consideration in the deed to constitute a valid bargain and sale» If I am right in supposing that as to this lot it is a conveyance for the life of the grantor, reserving rent, with a remainder in fee without rent, the question whether a freehold in futuro can be conveyed by a bargain and sale, cannot arise here; but as other members of the court may have arrived at a different conclusion as to the construction of the deed, I shall proceed to examine this question which was so fully argued by the counsel. It is admitted that a future estate may be created under the statute of uses, by virtue of a covenant to stand seized to the use of the grantee, founded upon a consideration of blood or marriage ; but it is contended that such an estate cannot be conveyed by virtue of a bargain and sale, in which there is only a pecuniary consideration. For the purpose of testing the correctness of this supposed distinction, it may be necessary to examine the nature of each species of conveyance as a trust in equity previous to the statute of uses, and the effect of the statute upon each, as a conveyance of the legal estate. The learned and able commentator on American law has so fully explained the nature of equitable uses previous to the passing of the statute, 27th Hen. 8th. ch. 10, that it is unnecessary to refer to any of the English writers on that subject. Where the ase was created by a common law conveyance, or the feoff
Although there does not appear to be any express adjudication on this point, I find that most, if not all of the elementary writers take it for granted that a freehold in futuro may be created by a bargain and sale operating under the statute of uses. Barnes lays it down as a general rule, that a freehold may be created to commence in futuro by a limitation to a use under a common law conveyance, or under any of the conveyances which have grown out of the statute of uses. Barnes on Real Prop. 246. Burton says the only essential difference between a covenant to stand seized to uses and a bargain and sale, setting aside the external formalities required to give validity to the latter, that is, the enrolment thereof, is the nature, of the consideration; and hence the deed may operate for the benefit of the different parties, both as a bargain and sale and a covenant to stand seized. Burton on Real Prop. 45, pl. 145. Cornish also takes it for granted that there is no difference between,a bargain and sale enrolled, and a covenant to stand seized, in conveying a future freehold under the statute of uses; hence he concludes that a grant of lands generally by either of these modes of conveyance, with an habendum limiting a freehold to commence in futuro, will be valid to
The only remaining question to be considered is, whether there is any sufficient consideration to raise a use appearing upon the face of this deed, which is found by the jury to have been executed and delivered to Buice. The efficacy of a bargain and sale appears never to have depended upon the amount of the consideration ; and if any pecuniary consideration whatever is expressed in the deed, it is not necessary to prove actual payment, neither will the bargainor or his heirs or devisees be permitted to show that nothing was in fact paid. In the ordinary case of a bargain and sale by a lease for years, on which to found the common law conveyance of a release by the owner of the revision, it has been held that the reservaron of a pepper corn rent, to be paid, if demanded, was sufficient to raise the use. The case of Baker v. Keete, Freem. Com. Law R. 250, 2 Mod. R. 249, 2 Vent. 35, S. C. arose upon a common recovery 5 and the question was whether the reservation of a pepper corn rent, if demanded, was a sufficient consideration under the statute of uses to constitute a bargain and sale, so as to enable the lessee to take a release of the fee without actual entry. As the object of this conveyance was to make a tenant to the precipe, it followed of cQurse that if the reservation was not sufficient to raise a use
If the concurring opinions of these several legal writers are correct and may be relied upon, there can be no doubt that here was a sufficient consideration to raise a use as to the lot which is now in controversy, and the sanctioning of a dif
I shall therefore vote for the affirmance of the decision of the supreme court.
The difficulty which there really is in deciding this case correctly arises, I think, from the loose and unsatisfactory form in which the special verdict is made up. It might have been decided without doubt or controversy, if the fact of continued possession for twenty years under the deed from Buice to Crawbuck, which, from what is found by the verdict, is altogether probable, had been distinctly and affirmatively stated ; but it is not so stated by the jury, and we cannot without intending or presuming something which, although morally satisfactory is not legally certain, that the possession under the deed to Crawbuck did continue for 20 years uninterruptedly, and the rule at law is well settled that no intendment or presumption is to be inferred in a special verdict. 6 Wendell, 191. There is another fact which I have little doubt the jury might have found, and which also would have settled the whole controversy, and that is, that Buice was enfeoffed or had livery of the premises. It was a fact which the jury might have presumed from a possession of twenty years under the deed from Deitz, which purports on its face to be a feoffment; but as there is no pretence that the verdict contains the latter fact, and as the former is not stated, in my opinion, with sufficient positiveness and precision, we are compelled to go back to the deed from Deitz to Buice for the purpose of ascertaining if by its terms it conveyed a legal estate in the premises in question. In examining this question, it is, I think, unnecessary to pursue the learning which the argument has educed on both sides of it relative to the origin, progress and principles of the doctrine of uses, or to perplex the mind with the nice discriminations of the books between the various kinds of uses, such as shifting, secondary, springing or contingent, dec. dec. to which an age, fruitful of subtleties and technical distinctions, has given birth.
It is admitted on all hands that as a feoffment, in the common law signification of the term, it could not take eff feet, notwithstanding, on its face, it purports to enfeoff the grantee, for the want of livery of seisin ; and it is likewise conceded that it will not operate under the statute of uses as a covenant to stand seized, technically speaking, for the want of “the weighty consideration of blood or marriage,, though it is expressed to be from a father-in-law to his son-in-law ; and it is denied that it can take effect as a deed of bargain and sale; 1st, because it purports to convey a freehold in futuro; and 2d, for the want of a sufficient consideration. In this presentation of the case, the first inquiry is, whether the deed operates as a conveyance of a present freehold with conditions subsequent, for the non-performance of which the estate might be defeated, or as a conveyance of a freehold in futuro upon conditions precedent, the performance of which is requisite to vest it ?
The first impression on my mind produced by reading the deed was that Deitz intended, as the granting terms at the commencement of the deed express, to convey immediately
It is not denied that a freehold in futuro would not pass by a common law conveyance, for as it operated in regard to freeholds, only by transmutation of the possession, livery was an indispensable accompaniment, which of course could be made only of a present esiate : but as bargain and sale was not a conveyance of the common law, but one introduced by the statute of uses, 2 Black. Comm. 338, and was always deemed to operate by the transmutation of the use, and not of the pos
On returning from this digression, which an examination of the statute of enrolment and its consequences has induced, to the pursuit of decisions to sustain the proposition that a freehold, in futuro can be conveyed by bargain and sale, I must confess myself at a loss to determine why it should ever have been doubted, in as much as this mode of conveyance, having its origin in the statute of uses, was in its nature but another term for a covenant to stand seized, the great object of which, was the conveyance of future estate. And if blood or marriage was suffered to constitute a consideration, as they undoubtedly have been always esteemed, it is incredible that money, which in worldly matters valet super omnia, should not be deemed equally potential. In 2 Salk. 675, we find it decided that a person may covenant to stand seized, or bargain and sell to the use of another at a future day; and in the same case, 2 Wilson, 75, it is stated that the whole court were clear of opinion that a man seized might covenant to stand seized
The second objection that is made against this deed taking effect as a bargain and sale is the alleged want of a sufficient consideration. But before considering this objection, I will present two principles that have had the sanction of all the sages of the law for their support, and which I think ought to have some bearing on this case, and especially on the part of it that relates to the sufficiency of the consideration. The first
It cannot be denied that by the partial transfusion of the principles of equity into the courts of law on the passing of the statute of uses, a valuable consideration having been in fact the essence of a use by bargain and sale in equity, was still considered indispensable to give it effect in its legalized form: and therefore Cruise, in his treaties on uses, page 104, lays it down that no use can be raised on a bargain and sale without some pecuniary consideration. And Preston on estates, page 156, observes, “ The effect of the statute of uses was to give a legal right and a legal estate, instead of an equitable one ; the qonsequence is that the same qualities which were proper to Uses w'hen thdy were fiduciary or equitable, follow them since they have become legal interests.” But notwithstanding these high authorities and many others which might be cited to the same effect, it is undeniable that the principle that the same qualities were requsite for uses in their legalized as in their equitable form, has all along been regarded as rather theoretical than practical; and when legal estates were permitted to be created by the statute of uses, the principles which had governed them whilst they were only equitable interests were treated more as forms than substances. Chancellor Kent, 4 Com. 465, observes, “ although it has long been settled law that a consideration expressed or proved was necessary to give effect to modern conveyances to uses, yet the consideration
But before examining this point, I will suggest another expression of the deed, which, in the absence of this provision for the payment of £60 a year, I should have been strongly inclined, under the circumstances of this case, to have construed so as to constitute it the evidence of sufficient consideration to support a bargain and sale. The expression to which I refer is “ in consideration of the performances herein after mentioned,” which is found at the commencement of the deed. The word “ performances,” when construed in connection with the whole deed and with facts found by the verdict, may fairly, I think, be taken to mean the performances of promises or engagements made by Buice the grantee, and the circumstances connected with the transaction fortify this construction. Deitz being the father in law of Buice, wished to make a disposition of his property very common between parents and children. He had obviously two objects in view; one was to secure for himself a support during life, and the other to secure his property to his son in law. From the nature of the arrangement and of the relation subsisting between them, Buice must have been privy to it, and we can have no moral doubt that he had promised that he would fulfil the obligations imposed on him by it. This promise, on the part of Buice, I admit, does not appear in the deed ; but if there were such a promise, whether it be in the deed or out of the deed, by writing or by words, I suppose it would constitute a consideration sufficient to sustain the deed. It is not necessary that the consideration should be mentioned in the deed, Cruise, tit. 32, ch. 9, § 23; nor is it necessary that any thing should have been paid or done ; a promise to pay or do is equivalent: as if a man, in consideration of so much money to be paid at a future day, bargains and sells, the use pass
The most material question to be decided in either view on this point, is whether the provision for the payment of the £60 is in such form as to create an obligation on Buice to pay it, so as to constitute a legal consideration for the conveyance. The supreme court have supposed that Buice by taking possession of the lot under the deed, affirmed the contract and subjected himself to the payment of the money in an action of assumpsit; but to this is replied that the fact is not found by the jury that Buice did take possession under the deed, and if such had been the case, yet it must have been subsequent to the execution of the deed, the valid
But whatever may be thought of this suggestion, that the expression alluded to implies a consideration, I atn satisfied that the provision for the payment of £00 a yearfor the house is a sufficient consideration to sustain the deed. Without deciding whether Buice did or did not take possession under the
But if this reasoning be deemed too subtle, the other view of this provision for the payment of the £60, by which it is to be regarded as "a reservation of rent, is to my mind entirely satisfactory. It is objected to it, as a reservation of rent, that it cannot constitute a consideration to sustain the deed, inasmuch as it being by deed poll, Buice, considered in this light as lessee, has in no form covenanted to pay the rent, and that Deitz, the lessor, has no legal remedy for enforcing its pay
I am therefore of opinion that the deed in question was valid as a bargain and sale, and consequently the judgment of the supreme court should be affirmed.
The court being unanimously of opinion that the judgment of the supreme court ought to be affirmed, it was accordingly affirmed.