Spring v. Parkman

At a subsequent term of the Court, the opinion was delivered by Weston C. J. Much of the argument, on the part of the plaintiff) turns upon the assumption, that the defendant had no title to the land, she undertook to convey, until after the date of her deed, when she filed in the probate office for the county of Lincoln, in this State, an attested copy of the will of her late husband and of the probate thereof; and when by order of the court of probate for that county, upon her petition, the said attested copy, with the probate, was ordered to be there recorded. By the statute of 1821, ch. 51, regulating the jurisdiction and proceedings of the court of probate, <§> 17, it is provided, that where the copy of any will, which has been proved and allowed in any probate court in any of the United States, shall be directed to be filed and recorded in any probate court in this State, pursuant to the act, the filing and recording thereof shall be of the same force and effect, as the filing and recording of an original will, proved and allowed in the same court of probate. And [132] when an original will is thus proved' and allowed, does the title of the devisee under it, to whom an immediate estate is given, date from the death of the testator, or from the time of the probate ? We have no doubt, from the death of the testator. Sometime must necessarily elapse, between bis decease and the probate of the will, Thirty days are allowed to the executor, within which to file it in the probate office. And when it is offered for probate, if the utmost diligence is used, notice must be given to the heirs’ at law, and a day appointed to receive proof of it. If on that day, it is proved, approved and allowed, an appeal may be interposed to the Supreme Court of Probate. It may often be a year, sometimes- more, before the final decree of the appellate court. If the will is ultimately established, the estates and interests, upon which it operates, prove to have been lawfully devised. They cannot, therefore, in the mean time, have vested in the heirs .at law ; for by the statute of 1821, ch. 38, respecting wills, and regulating the descent of intestate estates, <§> 17, such lands, tenements, or hereditaments, or any right thereto or interest therein, of which any person shall die seised in fee simple, or for the life of another, only descend to his heirs, which he shall not have lawfully devised. No estate can or ought to intervene between that of the testator, and that of the devisee. And the doctrine is, that a devise vests on the death of the testator, before entry : Coke Lit. 111 a; 4 Kent’s Com. 533. An entry, or something equivalent, where the possession is not vacant, may be necessary to give the devisee actual seisin. Were the law otherwise ; if, upon the probate of the will, the estate did not vest in the devisee, by relation to the death of the testator, he would not, as he unquestionably is, be entitled to the rents and profits in the mean time; and there would be no one, who could bring an action for an injury to the es^ tate, during that period, or who would be entitled to the damages. The defendant, having authenticated her title in this State, in the form prescribed by law, and that title having relation back to the decease of the testator, it now appears, that when she executed her deed to the plaintiff, she was seised of a life estate at least, with a lawful power to dispose of the fee; so that the plaintiff has, in fact, obtained all the title, contemplated by his [133] purchase. And she had actual seisin of all the lands conveyed here ; for, Seth Spring, in "whose possession such of them were, as were not vacant and unoccupied, held in subordination to her title, and expressly acquiesced and aided in the arrangement, by which the conveyance was made to the plaintiff. It has been contended, that the defendant, having only a life estate, by conveying in fee, forfeited that estate ; but she had a disposing power, coupled with her interest, which was inseparably connected with it, and which she lawfully exercised. But, if the defendant had no right to convey an indefeasible estate, and if the heirs at law of the testator could have recovered the land, the plaintiff received actual possession, and has never been disturbed by the heirs. Nor did he rely entirely upon the efficacy of the conveyance, without taking .covenants to secure his title, which wore effectual for this purpose ; or which would have entitled him to an adequate equivalent in damages. That which he purchased, was the right and interest, of which the testator died seised. If this was not lawfully conveyed by the defendant, his executrix, the plaintiff could be disturbed by no one, but the heirs at law of the testator. The defendant was his widow and the mother of his children. His heirs then were also her heirs. If the plaintiff was protected against them, his title could not be defeated ; and she expressly warrants the estate against her heirs, and all persons claiming under them. It is true that these heirs, if they inherited the estate from their paternal ancestor, would not be so bound by the warranty, that they might not claim and recover it. But she and her estate would be bound to make good the warranty, and if the covenant was broken by a recovery on the part of the heirs, must have been held liable to answer for the damages. And she had an ample estate, as the plaintiff well knew, for his security. He relied, as he well might, upon her covenants ; and they afforded him an effectual remedy, if it had turned out that there was any defect in her title or authority, in regard to that, which she undertook to convey. In this view of the case, as there is no pretence that any fraud or deception was practised upon the plaintiff, if he was disappointed in his title, his proper remedy should have been upon his covenants. And this was so decided in the case of Joyce v. Ryan, 4 Greenl. 101. [134] It does not appear that the will has been authenticated in New Hampshire, by any official proceedings there, if such are required by their laws. Whether, therefore, the plaintiff’s title to that portion of the land, which lies in that State, which the defendant conveyed to him by other deeds, executed at the same time, is subject to any embarrassment, the case does not afford us the means of determining. These lands may be of little value, as the consideration expressed in the deeds, is merely nominal. But they are protected by the same covenants, which are to be found in the deed, conveying the lands in this State. It appears therefore to us to be quite clear from the facts, that the plaintiff has not paid, or secured to pay, the consideration for his purchase, under circumstances, which will enable him to maintain an action of assumpsit to recover it back. Nonsuit confirmed.