Elizabeth Ivey v. . Sarah A. Granberry

Shade, J. The most ancient and the best kind oí conveyance of land at common law was by foeffrnent, and this might be without writing, and without consideration, it was a gift. It was perfected by livery of seizin. The Ieoffor and feoffee with witnesses, went upon the land, or near it, and the feoffor delivered the latid itself or some symbol of it to the feoffee. By this ceremony of the actual delivery of the possession, the title of the land passed to the feoffee. Subsequently it became common to accompany the feofnnent by a deed or writing, not because it was necessary, but because it was convenient for the purpose of declaring the uses, &o., and describing* the premises, and because the writing was more reliable than the memory of witnesses; but still it was the livery of seizin that passed the title, and not the writing. Subsequently the Statute of frauds and perjuries made a writing necessary. If the mother of the plaintiff had actually gone upon the land with the plaintiff and with witnesses, and made livery of seizin, it cannot be doubted, that at common law, the title would hayo passed. And so, after the statute of frauds and perjuries, if the deed had accompanied livery of seizin,' the title would have passed. Why then does not the deed of the mother pass the title to the plaintiff as at common law ? Evidently because there was no livery of seizin. But then •comes our statute which provides that a deed registered shall have the same effect to pass title to land as if there had been livery of seizin. Sep. Code, title Deed. So that the plaintiff’s deed registered, is just as effectual to pass title to her under om* Statute, as a gift with livery of seizen, would have been at common law. What is there, then, in the way of the plaintiff’s recovery ? *227 1st. it is objected that the conveyance to bur is without consideration ; and that a consideration is nocossan, It is well ■settled that before the statute of uses a consideration was not necessary to support a íeoüment. Rut the construction of that statute was to transfer tho legal (state p> tho use ; and inasmuch in a feoffment there was a ro.-ulf.ing use to the feoffor, the st.atuio immediately revested the, leg-1 estate in tho feoffor, unless tho use was declared in the.deed of feoffment. And the use might bo declared to be to tho feoffee or lo a third person and this might be “ without consideration of marriage, money, kindred or the like; for in this case the wii! of the íooííbr guides the equity of the catíne, or rather, the feoffee cannot controvert the use.'’ 3 Shep. Touch., 507. But, under that «te.tuto, ii there was a deed of bargain and sale, which must bo upon a consideration, then the consideration raised an use for the bargainee, and then the statute transferred tho legal estate to the use, i. e., to the bargainee. It will be seen, therefore, that a consideration was ueee^ary ninter that statute in cases of bargain and sale, and in feoffments where no use was declared in the feoffment, and in this last case only to prevent the implied or resulting use to the feoffor. In the. case before ns the plaintiff’s deed, which, being registered, has all the force oí a feoffment, conveys the land to her ; and although it is without a consideration, there is no resulting use to the feoffor, for the reason that the deed declares the use to the plaintiff and to others. All this is said upon the supposition that the deed is without a consideration. But is it without a consideration '{ 2. It is objected that natural love and affection, for a bastard child, is not a sufficient consideration. A covenant to stand seized to the use of a bastard son in consideration of natural affection, is not good. If a man parts with land in advancement of his issue, and to provide for the contin-genciesand necessary settlements of his family, it will besuppor- *228 ted; for their establishment is a part of the nature and end of government. .But a bastard is not supposed to be of the blood of the father, or to have 1ns natural affection. Bacon, Uses and Trusts, E. But if a man covenants in consideration of natural affection, to levy a fine and that the cognisee shall stand seized to the use of his bastard daughter, though this be not sufficient to raise a use upon- a covenant, yet it is expressive of the intent of the party and therefore shall serve as a sufficient declaration of a use upon the fine which needs no consideration to support it. 2, Roll, Abr., 785, Gilbert Law of Uses 207, quoted-by Bacon, Title Uses and Trusts. And I suppose the same would bo of a feoffment, which requires no consideration. But, however this may have been heretofore, a conveyance of land, under our statute, by a mother to her bastard daughter, will be supported as upon sufficient consideration, either as' a feoffment, or as a covenant to stand seized; ior our statute provides, that, “When there shall be no legitimate issue, every illegitimate child oí the mother, shall be considered an heir, and as such, shall inherit her estate.’’ Rev. C., ch. 38, sec. 10. It is evident from this, that the policy of our law, is to regard bastards, as of the inheritable blood of the mother. And they who are next in blood, are next in love by intendment of law. And, therefore, the same reasons, which make conveyances to other blood relations good, operate in favor of conveyances to bastards. Nor docs it it make any difference, that there arc legitimate children at the time of the conveyance, because, there may he none at the death of the mother. So that, the bastard is capable of inheriting, although, it may turn out, that she might never inherit in fact. She has inheritable blood, and it is that which constitutes the consideration. It is to be noted, that our statute, has not extended the same policy to reputed fathers of bastards, as to 'mothers of bastards, on account ol the uncertainty, probably, as bastards are still considered as having no father. An ! that distinguish *229 es from this case, the case of Blount v. Blount, 2 Car. L. Rep. 587. There is also another ground, upon which the title of the plaintiff may be supported. It is settled, that a deed, as J>e. tween the parties, is good without a consideration. Surely, one may give by deed while he lives, as well as he may by devise, after his death. In either case, no one can be heard to complain, except creditors, or purchasers for value. Harrell v. Watson, 63 N. C., 454. Hogan v. Strayhorn, 65 N. C., 279. There is error. Judgment reversed, and judgment for plaintiff. Pek Oubiam. Juda'inent reversed.