| S.C. | May 15, 1804
The court took further time to advise, and in May, 180-5, at Charleston, present, Wattes, Bay, Brevard, arid Wilds, Justices, in the absence of Guimke, J. and Trbzevant. J.. delivered their opinions seriatim. viz. Watibs, Bay and Brevard, and the opinion of Trezuvajyt, J was read by consent of parties. Wilds,, J. not having heard the arguments, declined giving any opinion.
In delivering my opinion in this case, I think it unnecessary to premise a statement of the facts, or of the points of law involved in it. The case has been several times fully and ably argued in court, and must be familiar to all who are interest, ed in its discussion and determination. The question of most difficulty and importance to be discussed, arises on the words of the grant of John Breton to Elizabeth Withers. The words in question are these : “ to the said El zabeth Withers, and to the heirs of her body, and the survivors of them for ever ; to have and to hold, to the said Elizabeth Withers, and the heirs of the body of the said Elizabeth Withers, and the survivors of them, and their heirs and
In the construction of legal conveyances, the following rules are to be observed :
1. That the Words should be taken most strongly against the donor, or party conveying, and in favor of the donee, or party conveyed unto ; but nevertheless, the construction should be reasonable, and so as to satisfy the intent of both parties.
2. That effect should be given to all the words if possible, as agreeable to reason and confoimable to law ; and a consistent operation to the whole : and that words which may appear repugnant or contrariara should be reconciled, if it can be done, without violating the principles of law, or the rules of legal construction. See Plowd. 152 et seq. Ib. 10, 103, 140, 243, 290, 396, 540. 1 Rep. 65, 96. Hard. 94.
In the interpretation of the words in question, I shall endeavor to adhere to the true sense and spirit of these rules.
The first words, “ to the said Elizabeth Withers; and the heirs of her body,” clearly create an estate tail, or fee-conditional, the limitation being restrained to lineal, in exclusion of collateral heirs. The next words, “ and the survivors of them forever,” have no fixed or determinate meaning, or legal effect, as they are employed in this place.
If we take all the words of the premises together, and suppose them to be expressive of an intention to convey an estate to Elizabeth Withers and her two children in joint-tenancy; they must be considered as having taken, all together, a fee-simple absolute, which fell to the survivor, and vested in him as sole and absolute proprietor. In this case, upon the death of the survivor, Richard or Nathaniel, without issue, his next relation of the blood of the male ancestors, in the lineal ascent by the father, became entitled to the estate, by the law of succession as it then stood, and bis heirs of the* blood of the mother could not inherit. See Plowd. 444, 445.
But I think there is no good ground for this construction. The expression, “ survivors of them,” in the plural, seems to preclude the notion, that a joint estate was intended. It appears to me most probable, that the donor intended to convey the estate to Elizabeth Withers, and the heirs of her body; and that the same should continue to descend to such heirs in succession forever : the more remote to fake after the more near by survivorship.
The words superadded in the habendum, and 'claude of warranty; may very well, in my judgment, be reconciled with this construction of the words in the premises; and, it seems to the, a more easy, natural, and beneficial exposition, than any other which can be given to the words in question: more so than that which would make the superadded words operate to enlarge the estate before given in the premises, and superinduce a fee simple absolute in expectancy, upon an estate in fee simple conditional.
The words, “ and their heirs and assigns, forever,” in the lice* bendum, do not, by necessary construction, oppose or contradict the effect of the preceding words, according to the construction given them. The word “ heirs,” although expressed in general, without any qualification, or particular description, to confine the meaning to special heirs, must be understood with reference to the preceding Words, and in conformity with the intention of the donor, and must tnean the same kiud of heirs before described, if this word should be construed to mean any other kind of heirs, as heirs general, the intention manifested by. the preceding words would be contradicted; and a different intent, inconsistent with the prior intent, would be set up, one of which must be defeated, for both cannot be satisfied.
The prior intent seems to be very clearly signified, by plain and effectual words; but, the latter intent, if any latter intent repug. xiant id the former can be supposed, is at least doubtful and uncertain : and, therefore, as an estate in fee simple conditional is clearly given in the premises, by words sufficiently explicit, it shall not be defeated by subsequent doubtful, or contradictory words.- See 2 Ld. Raym. 1437. 2 Str. 729. 1 Fearne, 246-7. This word “ heirs,” cannot be construed to mean the heirs general of any particular
Nothing decisive, or certain, can be infered from the additional words “ assigns.” The donor may have intended by it to convey an assignable estate; but, we are not thence to conclude, that he meant to convey to the donee a fee simple 'absolute. The word “assigns,” is not a word of inheritance. Litt. §. 1. 2 Bl. Rep. 1185.
A man’s assigns are included in himself. The word imports no more than the preceding words. It is a redundant and superfluous word. Plow. 289. 3 Leon. 5. The same may be said of the word “ forever.”
The following authorities support the construction, that the word “ heirs,” in the habendum, must be taken to mean' the same kind of of heirs before described in the premises, viz: heirs of the body of Elizabeth Withers, Wright v. Pearson, Ambl. 358. 1 Fearne. Devise to the use of the heirs male of R. T. a-.d their heirs: Lord Keeper Henley was of opinion that the words, “their heirs,” were redundant and surplusage, and that R. T. took an estate tail. Webb v. Herring, Cro. Jac. 415. See 2 Ld. Raym. 720. 3 Bur. 1103. 2 P. Wms. 341. Doug. 266, 321. 1 Ves. 89. 2 Fearne, 153. 1 P. Wms, 23. Cowp. 234, 308, 410. Dyer 171. 1 Eq. Ca. Abr. 197. 8 Vin. Abr. 272.
Upon the same principle it has been decided, that where there bad been a preceding- devise to issue, or children, the words, “ in default of issue.” afterwards mentioned as a contingency upon which the estate should vest, shall be taken to mean in default of such issue, as would be intitled to take under the devise. 1 Salk. 224. 1 P. Wms. 600. Doug. 251
The rules of law seem to require, that the word “ heirs,” iu the habendum, which occasions the principal doubt in this case, should either be construed to mean heirs of the body, according to the premises, or considered as a word of doubtful intention. In either case, the estate given in the premises, must stand unaltered, and uncontrolled by the habendum. This must be the result, if the decision
It all doubtful and difficult cases, it is wise and safe to abide by former precedents, and the rules marked out by former decisions. It would be mischievous and dangerous to depart from them, and listen to the suggestions of an arbitrary and fluctuating discretion. And for what purpose should we do so in this case? To favor a rigid and hard rule of law, or to give effect to the conjectural intent of doubtful words in a deed 1 See 1 Fearne, 267, et seq. “ It is the duty of the courts of justice, and one of great importance to the community, to expound the law they administer, upon such principles of argument and construction, as may furnish rules which shall govern in all similar and analogous cases.” Doug. Pref. to his Rep.
The strongest argument for the plaintiffs, is bottomed on the rule laid down in Shelly’s case. .1 Rep. 96. “That wherever a freehold estate is limited to the ancestor, and in the same conveyance an immediate, or mediate remainder is thereon limited, to his heirs, the word “ heiis” shall be a word of limitation, and not of purchase, and the heirs shall take by descent.”
It has been strenuously urged, that this rule applies directly to, and must govern the pieseut case. That the word “ heirs.” in the habendum, must he taken to mean heirs general; and especially, being combined witli the words “survivors of them and their assigns,” must be construed to expand and enlarge the estate given by the precedent words, and engraft thereon a fee simple absolute, in expectancy, to Elizabeth W ithers, and her heirs general, upon failure of the special heirs before described. Co. Litt. 183, 299. Plowd. 433. 14 Vin. Abr. 152. 9 Rep. 49. And, therefore, that upon failure of heirs of her body, the absolute estate in fee simple, haying vested in Elizabeth Withers ; and, she having taken the same by purchase, the inheritance, at her death, could not devolve on any one who was not of her whole blood : and, that her whole blood failing, the land escheated to the State ; and, the legislature of the State, by the escheat act of 1787, having.granted the same to the half-blood of the last proprietor, from whom it escheated, the plaintiffs became entitled as next heir of the halt-blood.
By the law of England, a deed in the premises to A., and the heirs of his body, may he enlarged in the habendum, to a fee simpie expectant, by the words, “ to him and Ins heirs;” because# •therwise, the habendum would be void. 2 Bi, Com, 298,
But, if we admit that the donor’s intention, by construction of law, must be expounded with a view to give the land in question to Elizabeth Withers for life, remainder to her two sons in tail, remain, der to her right heirs, as contended for; although, according to the doctrine of the English law, founded on the statute de donis. Elizabeth Withers must have taken the entire estate in fee, divided by, and subject to the estate tail of her issue, see Fearne on Coining. Rem. 6th Ed 105. 14 Vin. Abr. 153, 156, yet, inasmuch as the statute de donis was never oí force with us, no such remainder could be limited.
In England, a fee simple expectant may be limited upon an estate tail, by construction of the statute de donis„ 2 Inst. 335. 2 Woodes. 12, 13. For the statute abridges and divides the estate; and the estate tail cannot merge m, or unite with the fee simple: but, according to the principles of the common law, no such remainder can be limited upon, or after a fee simple absolute, or conditional. At the common law, before the statute de donis, all estates of inheritance were fee simple absolute, or conditional; and, if. a man gave, or devised lands to another, and the .heirs of his body, the donor could limit no remainder. Co. Lift. 19. 22. Plowd. 235, 242. 15 Vin. Abr. 364. 2 Rep. 74. 1 Salk. 338. 2 Bl Com. 178. 4 Com. Dig. Tit. “Estate,” B. 13. 1 P. Wms 74, 366. Co. Litt. 327. Butler’s notes. Fearne on Ex. Dev. 87. Pow. notes.
The condition implied in the donation being if the donee shall nave heirs of his body, when he has issue, the condition is per. formed, and he may alienate the tee; but a limitation over upon failure of heirs of his body, would be inconsistent with this power of alienation : for issue might be born, which would enable die donee to aliene, and afterwards the donee might die withoui issue; and, by the common law, upon having issue, the estate was subject to forfeiture for felony. Plow. 250, 251.
The statute de donis never was in force with us. It is expressly enacted by the act of 1734, “• that estates conditional, at the common law, in fee simple, shall not be construed to be estates ir. fee tail.” P. L. 139. It seems clear, then, ou principies of common
Let us go a step further, and admit that a fee-simple absolute, may be grafted on a fee simple conditional; and that the word heirs, in the habendum, may be construed to enlarge the estate in the premises, to a fee.simple absolute : yet it will not follow, that the rule in Shelly’s case is applicable to, and decisive of the present., According to Mr. Hargrave, see Fearne on Conting. Rem. 6th Ed, 294, “ the rule in Shelly’s case is no medium for finding out the intention of the testator; on the contrary, the rule supposes the intention already discovered, and to be a superadded succession to the heirs general, or special, of the donee, for life, by making such donee the aucestor, or terminus, from which the whole generation, or posterity of heirs, is to be accounted : and whether the conveyance has, or has not, so constituted an estate of freehold, with a succession engrafted upon it, is a previous question, which ought to be adjudged before the rule is thought ot.” The ordinary rules for interpreting the language of wills, which have principally in view the intention of the testator, do not strictly apply in the construction of deeds. See Plowd. 162 — 3. Vaugh. 261. Yet if we allow the same latitude and liberality of construe, tion in this case, as if it were the case of a devise, I believe it would be difficult to collect from the words of the deed in question, an intention to limit over the absolute fee simpl - to Elizabeth Withers, and her heirs general, on failure of heirs of her body. It seems to me clear, that the intention was different, for the reasons before assigned. It is more probable, I think, that the intention was to give the estate in perpetual succession, to her, and the heirs of her body, in case there should continue to be heirs of her body; and in case of the failure of such heirs, then, that the absolute fee» simple should vest in the last surviving heir of her body, and go to his heirs general. This construction gives meaning to all the words; but they cannot be satisfied according to such intent. The limitation, being intended to take place after an indefinite failure of issue, is clearly void, as tending to a perpetuity. 2 Wooddes. 2 Fearne, 73, 115, 129, 324. To say, that in the present case there could be no perpetuity, because Elizabeth Withers had only two children, who survived her, and they both died without issue}
The foundation upon which the principle was adopted, which gave rise to the rule, has long since failed by the abolition of tenures. See Stat. 12, Car. á, c. 8, P L. 99. Yet the technical import of such limitation having been established, the construction of the instrument continued the same. But the courts iri England have been very cautious and subtle, to avoid the rigor of the rule, since the reason of it has ceased ; and therefore admit no cases to be governed by it, but such as come strictly within it. The principle which gave rise to the rule, was founded on a feudal maxim, that an heir should not take a contingent remainder of an estate as purchaser; where his ancestor took a freehold estate by the same conveyance ; because the lord might be defrauded of the fruits of Ms tenure. See 2 Bur. 1107. 1 Fearne, 235. Pow. on Dev. 355 — 8; The coutts of this country, it is presumed, will be little influenced by the fundamental reason of the rule, and not very indulgent to the principle upon which it has arisen. They will hardly be inclined to favor the rule, and stretch it to reach doubtful cases, or those not clearly within it, by giving a rigid technical interpretation to ivords of doubtful import, in order to enforce their subjection to its rigorous operation. The distinction which has been insisted on between trust estates in equity, and mere legal estates, has been induced by the necessity and propriety of curbing the rigor of the rule. 1 Fearne, 168, 183. The effect of the distinction is, to give the heirs of the body of cestui que trust, by 4he description of heirs of the body, she estate as purchaser, á!»
For the defendant it was contended, that under the description of heirs of the body, and survivors of them, thé sons of Elizabeth "Withers took as purchasers ; and that the estate ought to be considered as commencing in them. See I Fearne, 107. But this position, I think, cannot be maintained. The cases cited in support of the position, are very .distinguishable from the present. In Archer’s case, 1 Rep. 06, the estate was given to R. A. for life, and after his decease to the next heir male of R. A., and to the heirs male of the body of such heir male. The words “ next heir male,” were adjudged to be a description of the person to take the fee. But there are no such words of description in the present case. In the case of King v. Melling, 2 Lev. 58, 1 Ventr. 214, 225, an estate was devised to B. for life, and after his death, to the issue of his body by his second wife, and for default of such’ issue, over. There, although the estate was expressly given for life to B., yet it was adjudged that he took an estate tail, and that the words were not sufficiently descriptive of a person, to take as purchaser by the terms of the devise. See Anders. 110 1 Roll 839. 2 Roll. 253. 2 Lev. 60. In the case of Goodright v. Pullyn, 2 Ld. Raym. 1437. 2 Str. 729, the devise was to N. L. for life, and after his decease, unto the heirs male of the body of N. L. and his heirs for ever : but if he should die without such heir male, then over. Here, although it might seem that the words heir male, in the singular number, and his heirs for ever, manifest an intent to describe a person to take by purchase, yet the court adjudged otherwise, and that N. L. took an estate tail, and that the operation of plain and clear words, viz. heirs male of the body; and that a settled rule of law, should not be defeated or bmke into by uncertain and doubtful words, viz. if he should die wvhout such heir male, which do not necessarily imply that the heirs so described shall take by purchase, and not by descent: and heirs in the plural is generally construed a word of limitation, and not a word of description of a particular heir, especially where the intent is uncertain and conjectural. See Pow. on D v. 373. Amb. 344. 1 East, 264, 276,
In the case of a will, if the testator’s intent be clear, from other parts of the will, the word “ heir#” may be construed a word of
In short, my opinion is, 1. That Elizabeth Withers, and her sons, did not take a fee-simple ahsoluteas joint-tenants. 2. That her sons did not take by words of description, as purchasers. 3. That she did not take a fee-simple absolute, expectant, engrafted on a fee-simple conditional by force of the superadded words in question : first, because I think that the s uperadded words may he legally expounded to mean the heirs of her body, in successive generation, ad infinitum; second]}, because, if they cannot beso construed, yet inasmuch as they are uncertain and doubtful, and the precedent words are clear and explicit, and give an unquestionable estate in fee-simple conditional, therefore the estate so given, cannot be defeated by such uncertain and inconsistent words: thirdly, because 1 am of of opinion, that no such estate in expectancy can be limited up. on, or after an estate in fee-simple conditional: and fourthly, because the estate in fee-simple conditional cannot be merged and extinguished in an estate in fee-simple absolute, by force of the sub. sequent words in the habendum of the deed ; as it would be making the deed operate by implication and construction, contrary to a plain and manifest intent. 4. I am of opinion, that the intent of the deed was to give the land in question to Elizabeth Withers, and the heirs ot her body, or posterity, in succession forever ; and that she took a fee-simple conditional, according to the principles
If it could be maintained on any legal principle, that the estate vested absolutely in the sons of Elizabeth Withers, and was transmissable to their heirs general, it must be admitted, that upon failure of lineal heirs, it would go to their collateral heirs by thoir fathers’s side; and that Rand was the rightful heir. But even on this ground, the plaintiffs would have no right to recover. Although the plaintiffs’ deed of eonveyain C from Rand was first recorded in the register’s office, yet there can be no doubt but that he knew, at the time when he accepted this conveyance, that Rand had previously sold and conveyed the laud to the defendant: for Rand’s wife, in a conversation with the plaintiff about the conveyance he was obtaining from her husband, expressed her fears that her husband would be brought into trouble, if be made a-second conveyance of the laud be had already sold. The act to prevent deceits by double mortgages, passed in 1698, declares, that “ that sale, conveyance, or mortgage, of lands and tenements, except original giants, which shall be first registered in the register’s office in Charleston, shall be taken and held to be the first sale, &c. and to be good and lawful in all courts within the province ; any former or other sale, &e. of the same land, notwithstanding.” The design ot this .act, and the mischief intended to be guarded against, appears by the preamble : “ Whereas, the want or neglect of registering and recording of sales and con. veyances of lands, negroes, &c. hath encouraged and given opportunity to several knavish and necessitous persons to make two or more gales, conveyances, and mortgages of the land, &o., to se.
It has been objected, that the authority of this case can have no influence in the decision of the principal case, seeing that it was a determination in equity ; and that it seems agreed by the opinions given in equity, that at law the legal estate must remain where the effect of registering has placed it: also, that the end proposed by registering, was to prevent parol proof of notice. 2 Atk. 275. To this Í answer, that I can discern no good reason why the same principle and doctrine should not apply, as well in the courts of law, as in equity, when the question can be fairly made, and inves. tigated, by the rules of the common law. The courts of law and equity have concurrent jurisdiction in matters of fraud. 1 Bur. 396.
To conclude, I am of opinion, that the verdict is right, and that a new trial ought not to be granted.
New trial refused.
[Note. The notes at the head of this ease must be regarded as an index to-the principles laid down by the presiding judge, in his charge to the jury, and in the opinion subsequently delivered by him in the Constitutional Court, rather than as an abstract of the points of law decided by that court. As the opinions of the other judges are not given, it is impossible to ascertain what points of law were settled by the decision of the court. The plaintiffs may have failed, for want of title originally, or because they were barred by the statute of limitations : and, although it might be inferred, from the refusal of a t.-ew trial, that the charge of the presiding judge was sanctioned by a majority of the court, yet, as the case did not depend upon the weight of evidence, except upon one point in relation to the statute of limitations, if the court were satisfied, that in any view of it, the plaintiffs were not entitled to recover, a new trial would scarcely have been ordered, although there had been a misdirection on some of the points made. The charge, too, presented several distinct and independent