Howard v. Witham

Mellen C. J. delivered the opinion ol the Court at the succeeding term in Cumberland, the action having been continued «¡«for advisement. The premises described in the deed of the plaintiff were either what were called ministerial lands, or in other words lands of which Mr. Rice had been seised in fee, and had conveyed to the plaintiff; or else parsonage lands, or lands of which he had been seised in right of the town and by virtue of his office, and had also conveyed to the plaintiff. It therefore appears that even if a fee simple estate was not conveyed by the plaintiff’s deed, an estate during the continuance of Mr. Rice’s ministry was conveyed ; and we apprehend that on this ground the defence must fail. — In the case of Fowler v. Shearer, 7 Mass. 14. the facts were, that Mrs. Fowler undertook to convey her husband’s estate, under a- power of attorney from him to her; but the deed was so informally executed, that nothing of the husband’s estate passed by it. The next question was, whether the deed was effectual to convey any estate which she held in her own right, and which also she undertook to convey by the same deed; — but the Court decided that such estate did not pass, because her husband did not join with her in the deed. In that case Parsons C. J. observed — “ If the deed be not void, “if any estate of the wife passed to the defendant, the execu- “ tion of it by the wife may be a sufficient consideration for the “ note to the husband.” But as no estate whatever passed by the deed — neither the estate of the husband nor of the wife— the note which was given for the price of the estate was decided to be destitute of consideration, and void ; but it would have been holden as given on sufficient consideration, and binding, if any estate had passed by the deed, though much less than was intended and expected at the time, by the parties to the contract. So also in Greenleaf v. Cook, 2 Wheat. 13. which was an action on a note given by the defendant to the plaintiff for lands conveyed to him without warranty, — the Court decided that nothing short of a total failure of title could constitute a good defence to the action. On this ground we decide the cause, without discussing or deciding the other points which were taken in the argument. The exceptions are overruled, and the judgment of the Court of Common Pleas is affirmed, with additional damages and costs.