Keaton v. Jordan

McCay, Judge. 1. The object of this suit seems to be to set up a trusf created under the will of a man who is not yet dead. This, as it seems to us, is absurd, since the maker of the will may or may not have such a will-as this at his death. There is ’ nothing, so far as we can see, to prevent him from revoking it at any time. The rights of the parties must, as it seems to us, turn on the rights of Mr. Keaton, the maker of the will. Has the defendant got a good title as against him ?. 2. When he put his sons in possession of this land and took from them and spread upon the records of the county the written acknowledgments of the nature of their rights, he and they, as against each other, and the privies of each, are estopped from setting up any title inconsistent with those papers. True, the father signed neither of them.' But he accepted them from the sons as containing the description of the title they had. They are estopped by their deeds — writings signed, sealed and delivered. And the estoppel is mutual, as esioppel by deed always is and ought to be: Cruise’s Digest, Title Estoppel by Deed, and .the cases inferred to. These papers are, in our judgment, to be treated just as if Mr. Keaton had signed them and sealed them himself. And this is eminently true in this case. He puts his sons in possession, and takes and puts upon record these deeds, as describing the title they had to the land. He stands by and sees them trade with each other about them, and finally sees them go into the possession of a third person. Is charged with notice of the possession of that third person, and therefore with notice of his claim to be a purchaser for value, and now, years after, he comes before a court of equity asking that he be again restored to his original title. 3. The quest ion, therefore, is, what is the legal effect of these sealed declarations, made by the sons -and accepted by him and recorded, as descriptive of their right? As we have said, he is bound by them as though he had written, signed and sealed them — as though he had conveyed to the sons the [309] title they describe. And they are to be construed as though he had conveyed these lands to them “as part of their portion of his (my) estate, under his (my) will, and which (they) are to hold as (my) will directs after (my) death, and which is to be taken and considered as a part of (their) portion, directed to be given (them) by the will aforesaid.” The plain meaning of these words would be that they took the property as an advancement, as their own, as their portion of hi's estate, or part of their portion. The reference to the will, if it has any legal meaning at all, is that, notwithstanding the delivery of these lands to the sons as their portion of his estate, the father has still the right to dispose of them by his will. This would make it an advancement and no advancement, a right and no right, a portion and no portion. He might make no will, or he might dispose of it any way he pleased. It would be a grant, reserving a right in the grantor wholly inconsistent with it, and, as we think, would fall within the settled rule that a reservation or condition repugnant to the grant is void. Deeds mean something, and a deed conveying property, reserving to the grantor the right to make or modify the grant at his will, amounts to nothing at all. A reader of these papers, as they stood on the record, would understand that the father had given these sons these lands as their portion of his estate for the love he bore them, reserving to himself the right, at his option, to revoke his gift, and as, in our judgment, this reservation was void, he would have a right so to treat it. It was contended, in argument, that it was a fair inference, from the words used, that the will was referred to as a will then'existing, and that one reading the paper was thus notified that the paper on record did not purport to set forth the whole rights of the son, and that the reader, by calling on the father, might see the will, and thus see the real character of the son’s title. But this, as it appears to us, is not a fair construction of'these papers. Had this been intended, why not set out the precise nature of the title in the deed? And this involves,-too, the absurdity of assuming [310] that a man has an effective, irrevocable will, years before his death. 4. What might be the effect of the understanding (parol) of the father and sons at the time, as between them, we do not say. If they have used words that did not convey their true, meaning, perhaps, as between them, the mistake could bo corrected; but this defendant is a purchaser for value, and innocent, and equity will not correct a mistake, or set up a concealed equity against such a defendant. Judgment affirmed.