| Mass. | Oct 15, 1841
The demandant seeks, by a recovery in this action, to defeat a family arrangement, made by him and his brother Phinehas, now deceased, with the consent and knowledge of their father. And in this respect this case is like that of Fitch v. Fitch, 8 Pick. 480, wherein it was held, that a covenant by an heir expectant that he will convey the estate which shal. come to him by descent or otherwise, is valid, if made with the consent of the ancestor, and for a sufficient consideration, and without any advantage being taken of the covenantor.
In the case at bar, the agreement between the brothers, John and Phinehas, was made upon a good and legal consideration. The price, which Phinehas was to pay to John for his right in expectancy to his father’s estate, was ascertained by disinterested referees; and the money was paid to and received by the demandant accordingly . Whereupon the deed, mentioned in the statement of facts, was made by the demandant to Phinehas. The tenants have the same right to the estate which Phinehas had, and which he could have and maintain if he were living. And the question upon the whole matter is, whether the demandant is by law entitled to recover.. It has been contended for him, that no estate passed from him by his deed to his brother : That it was a mere expectancy, and that the deed could operate on the realty only to convey the present right , and that the covenant should be restrained or limited in such manner, as that the grantor, and those under him, should not claim any part of the estate thereafter, .which he then had; but that he should be permitted to acquire, by grant or devise, any right to the estate thereafterwards, to his own use. And if that were the true construction of the deed, the consequences would follow. It may be conceded that the covenant should be limted to the premises — the subject matter of the conveyance. And it is perfectly clear, that the premises in that deed embraced what right the grantor should thereafterwards acquire, as well as what present right he had.
It is well settled, that if the heir releases with warranty, i bars him when the right descends. In Co. Lit. 265 a, the law is clearly laid down. "If there be a warranty annexed to the
Now the covenant, in the case before us, was in effect a coy enant real. The law does not require any particular form of words to constitute such a covenant, which shall run with the land. In Fairbanks v. Williamson, 7 Greenl. 96, it was held, that a covenant that neither the grantor nor his heirs should makt any claim to the land conveyed, was a covenant real, which ran with the land. In effect it is a warranty, that the grantor wilt not, and that his heirs and assigns shall not, thereafterwards claim the premises granted or released, or any part of the same. An<f although the grantor or releasor had not then a present right, yet the subsequent acquisition of it shall enure to the use of the grantee : or, in the better words of Lord Coke, the grantor shall be rebutted and barred, when he afterwards shall so claim against his own warranty. There is nothing to the contrary in the case of Comstock v. Smith, 13 Pick. 116, cited by the demandant’s counsel". The grantors, in that case, conveyed nil their right, title and demand in the premises, with warranty against all persons claiming by, from or under them, and not otherwise. The court construed that to be a conveyance of the interest and right which the grantors then had ; and of course that it should not conclude them from subsequently purchasing or acquiring a title to the same estate. But, in the case at bar, the deed from the demandant to his brother expressly embraced future rights to be acquired. Indeed, those rights wote the substantial matter relating to which the deed and the r oveaant were made.
Demandant nonsuit.