Sturgeon v. Ely

Gibson, C. J. The devise before us is an obscure one ; but the legal construction of it is, that it did not give the widow, who was devisee for life, a power to part with the ground. The devisor gave her, while she lived, the personal property and the two lots with the buildings on them, and also power to sell the buildings and lease the ground. “And, if my wife,” said he, “ can lease the whole, or any part, of the said lots to advantage for her and the children, I do authorize hér so to do, or to sell the buildings and keep the ground on ground-rent.” What need of a special power to sell the. buildings, if she could sell the ground on which they stood? or why distinguish between.them for any purpose whatever ? A sale is not the less so because it is a sale on ground-rent; and a special power to sell, coupled with it, would be superfluous and absurd. But she was at liberty to sell the buildings and keep the ground on ground-rent — a provision which shows she had separate powers which were intended to be exhibited in contrast. The difficulty-is in the word ground-rent, which we use to signify the redditus, or render, reserved in a perpetual lease ; but the devisor was little skilled in the use of terms, and, in a clause immediately preceding the word, he spoke of the power as simply a power to lease. It is difficult to see how the words “keep the ground” cbuld be satisfied by raising half the value from it for present purposes, and keeping the value of the residue for the family in the shape of a fee-farm rent. It must be admitted, however, that the actual intention of the testator is by no means clear. On the other hand, the deed of family settlement bars, for the present, all who, executed it. It is true, that neither the mother’s grantee, nor the defendants who ■ claim by title derived from him, are party to it; but it is a plain agreement between the heirs, made in consideration of a valuable property received on the foot of it, to prevent the mother from being called to account for what she had done in respect to the estate. She was to be “released from all responsibility” — to whom ? To any person. Though the 409 parties used words of release, the contract is evidently an agreement. There seems to have been a doubt about the' extent of the power, and the agreement was intended to bé a confirmation, of, her execution of. it. It was an act of family repose. But she was bound by a covenant of general warranty which passed with the ground to the defendants; and which would be broken .by a recovery in this ejectment; the consequence of which would be an immediate liability of her personal representative to the extent of her assets, including the property received by th.e plaintiffs. To prevent this circuity,' their agreement bars them, on the principle that a release of one joint obligor bars an action against the other. They were bound to .protect her in the only.way they could — by not pressing their title against the defendants. The agreement was a family settlement and ratification of past transactions, which a chancellor would enforce in all its relations for the sake of peace. ' It consequently bars Robert Sturgeon forever, and the husband of each daughter '; but not his wife, or her heirs, after his death. Judgment affirmed!