3 N.H. 432 | Superior Court of New Hampshire | 1826
delivered the opinion of the court.
The grounds, on which the counsel of the demandants have contended, that the verdict is to be supported, are, that the instrument, under which they claim the land, was delivered to Harrington as an escrow, tobe delivered to the grantees upon the death of the grantor ; provided he should not sooner revoke it; that upon the death of the grantor, he never having revoked the instrument, Harrington delivered it to the grantees as the deed of the grantor ; that this last delivery made the writing the deed of the grantor, from the first delivery ; that the grantor is, therefore, now to be considered as having stood seized of the land, from the first delivery, to his own use during life, and after his decease to the use of the grantees in fee ; and that these uses are now to be considered as executed by the statute of uses, from the first delivery.
And to show, that a writing may be delivered as an escrow
And the demandants rely upon the case of Ruggles vs. Lawson, (13 Johns. 285,) as an authority to show, that an instrument may be thus delivered as an escrow, subject to be revoked by the grantor.
And to establish the proposition, that, notwithstanding the deed seems to purport to convey a freehold in futuro, yet it may operate, according to the intention of the grantor, as a covenant to stand seized to uses, thecase of Wallis vs. Wallis, (4 Mass. Rep. 135,) is cited as directly in point.
If the cases, thus cited, on the part of the demandants, are sound law, they seem to us to establish all the points, which are necessary to be maintained, in order to support the verdict. We shall therefore proceed to examine the objéctions, which are made to the verdict, on the part of the tenants.
It is contended for them, that this instrument did not, and was not intended, to operate as a deed ; but was a testamentary disposition, or devise, and void, not being executed with the formalities required by the statute ; and that to give effect to it, as a deed, would render nugatory the statute relative to the execution of wills.
It may be conceded, that the law requires no particular form of words in a will. In West's case, (Moore 117) which was decided in the reign of Queen Elizabeth, and, of course, before witnesses were essential to the validity of a will, to pass real estate, it was held, that a letter, declaring in what manner the writer intended his real estate should gos was a good devisei It is very probable, that, if this instrument bad been executed in the manner the statute requires, it might have operated as a will to pass the land. It may also be conceded, that if this instrument can be held to pass the land as a deed, the conveyance does, in its operation, very much resemble a devise. The grantees, in fact, had no vested interest, until after the death of the grantor ; and the
But it is said, that this conveyance, if the instrument can operate as a deed, so precisely resembles a devise, that it Will render the provisions of the statute, relative to the execution of wills, nugatory. If this be so, it will certainly deserve consideration, whether this case should not be held to be an exception to the rule we have just stated.
In Order to determine the weight of this argument, it becomes necessary to ascertain in what this resemblance consists, and what were the views of the legislature in those provisions of the statute. The resemblance, on which counsel rely, is, that this instrument, if valid, makes a disposition of the land to take effect after the death of the grantor, he still retaining a power to revoke and alter the grant. In these respects, there is certainly a close resemblance between the disposition of the land, attempted by this grantor, and a devise ; arid if the statute requires, that wills shall be executed in (he presence of three witnesses, because a devise is to tale effect afler the decease of the testator, and because he has a right to revoke and to alter his will, the argument., which counsel draw from this resemblance, is entitled to great weight. But it has always been understood.
Deeds may be, and sometimes are, procured from the aged and infirm, by fraud and imposition. But this has not been so frequently the case, as to induce the legislature to enact any particular provisions to prevent it. Deeds and wills stand on grounds entirely distinct, in this respect. Every man, therefore, who is competent to dispose of land, may convey all his real estate by a deed in any form, which the statute or common law of the state allows ; he may thus grant a present estate, or a future interest; he may thus convey absolutely or conditionally ; and he may do all this without infringing, in the least, upon the policy of the provisions of the statute, relative to the making of wills.
The argument of the counsel, which we are now examining, seems to us to prove too much. For if the conveyance of a future contingent interest, by deed, has a tendency to render nugatory the provisions of the statute in relation to the execution of wills, most surely the conveyance of all a man’s estate by deed, abstlfttely, must have the same tendency, in
For these reasons, we are of opinion, that, this objection, which counsel have urged against the conveyance, in this case, is not a sufficient answer to the authorities, which have been cited in support of the deed.
But it is further urged, that the instrument, under which the demandants claim, is void, because it, in fact, attempts to convey a freehold in futuro.
It is by no means clear, that this instrument would be void, if it must be considered as a common law conveyance, and if the reservation must be considered as a reservation of a freehold. For the whole estate is granted in the premises of the deed, and the reservation would be repugnant to the grant. Now, in such a case, it seems always to have been supposed, that the reservation, and not the grant, was void;
But we entertain no doubt, that if this instrument can have any operation, it may take effect as a covenant ⅛ stand seized ; in which case, this objection vanishes altogethér.—4 Mass. Rep, 135, Wallis vs. Wallis.—2 Sanders uses, 90.—4 Taunt. 20, Doe vs. Whittingham-Willes Rep. 692, Roe vs. Tranmarr.
It is insisted, that, if the maker of the writing reserve to himself a control over its ultimate disposition, it cannot be an escrow ; and the case of Hooper vs. Ramsbottom, (6 Taunt. 12,) is cited as establishing this point conclusively. But an attentive examination of that case will shew, that the only point decided was, that where writings are deposited as escrows, by contract between two parties, tobe delivered as deeds upon the payment of the money, they were lodged to secure ; when that money is paid or tendered, the writings become deeds, and the grantee may maintain trover for them :
Another argument against the validity of this instrument is, that it could not be delivered after the death of the grantor ; because the authority of Harrington, the agent, ceased upon the decease of Shed, the principal. But the answer to this is, that no authority to deliver the writing after Shed’s decease was necessary to give it effect. It was delivered to Harrington to be the deed of the grantor at his decease ; provided he did not revoke it. And when he died without revoking it, the writing became his deed ; whether Harrington delivered it over to the grantees or not. Suppose he had refused to deliver it, can there be a doubt, that the demandants might have maintained trover for the conversion of the deed ? In the case of Hooper vs. Ramsbottom, cited by the counsel of the tenants, trover was maintained for the deeds ; although there was no second delivery. And there are, in the books, many other cases to the same effect. Perkins 139-140.—Shep. T. 59.—3 Coke 35.—5 ditto 85.
Another argument against the validity of this instrument is, that it requires a relation by fiction of law to the first delivery, which ought not to be permitted in this case ; because the struggle is between innocent parties standing on the same ground. It is said, that it would be great injustice to give
These are the principal objections, which have been urged against the title of the demandants, in the very able argument in favour of the tenants. We have examined them with much care and attention, but they do not seem to us to shake the authority of the cases, on which the demandants rest their cause. We are of opinion, that the instrument may be considered as the deed of the grantor, from the first delivery ; and that the estate passed to the grantees by way of covenant, to stand seized.
If this deed could be considered only as a common law conveyance, other difficulties might hereafter arise out of it. It is a maxim of the common law, that no estate in fee can be made to cease as to one, and take effect, by way of limitation upon a contingent event, in favour of another person.— In this deed, a fee is given to the grantees with a proviso, that, in case one dies before a certain time, his estate shall
Judgment on the verdict.