Ogden v. Brown

The opinion of the court was delivered by Strong, J. If the instrument dated July 7th 1834, was an executory contract, then the absence of words of inheritance does not prevent its passing a fee simple in equity. The primary question in this case, therefore, is, whether that instrument is to be construed as a conveyance, or as an agreement to convey. And the rule is, that whether an informal instrument, transferring an interest in real estate, shall be held a conveyance, or only an agreement for a conveyance, depends not on any particular words or phrases found in it, but on the intention of the parties, as collected from the whole contract. The intent of the parties will control the technical words used: Jackson v. Myers, 3 Johns. 389 ; Neave v. Jenkins, 2 Yeates 107 ; Sherman v. Dill, 4 Yeates 295; Kenrick v. Smick, 7 W. & S. 41. There are words in this instrument which import a present conveyance. We think there are others which indicate that it was not intended as a final disposition of the subject-matter; and if it was not, then the contract must be regarded as executory. If it take effect at all, as a present assurance, it must be as a deed of bargain and sale. It is not easy to see, however, how it can so operate, for while there is a bargain to declare an use, there is no consideration paid to raise one. The land is said to be conveyed in consideration that the vendee pay unto the vendor one-third of the produce during her natural life. It is not in consideration of his having paid it, nor of his promise to pay it, but rather upon condition precedent that he should pay it. If he complied with the condition, then he was to have free and peaceable possession, clear of all encumbrances. Stephen Wilcox, the vendee, did not sign the paper, and therefore there was no express engagement, on his part, to pay the consideration. Mrs. Cranmer took no security for it. There was not enough in the case for the law to imply a promise, on the part of the vendee, to pay, for he did not take possession under the instrument, and was not entitled to it until he should have delivered one-third of the produce during the natural life of the vendor. The purpose of the instrument was so evidently to make provision for Mrs. Cranmer, while she should live, that it can hardly be presumed her intention was to part with her interest irrevocably, without effectuating her purpose. This presumption seems still less reasonable, when it is noticed that she reserved for herself a life interest, which might have survived the estate of her grantee, if a present conveyance was intended. It is true, that in most cases where an informal instrument, containing words of present conveyance, has been held to be only an agreement to convey, there have been other words expressive of a [250] design to execute other assurances, but this has not been uniformly the case. Where there is a covenant for a future conveyance, the intention is clear; but the intention may he manifested without such a covenant. Thus, in Foster v. Foster, 1 Levinz 55, the operative words of the writing were as follows: “ The said Margery, in consideration of £20, hath bargained, demised, and granted, and doth hereby bargain, sell, demise, and grant to Matthew Poster, the tenements, &c., to have and to hold to him and his heirs for ever — she to have it during her life, and also she to have his barn during her life, for her third part.” There were no words which spoke of a future conveyance. Yet this was held to be only an agreement, and not an executed conveyance. It was ruled, that the instrument raised no use, but rested only in covenant — that it was preparatory to further assurance. The reasons given for this conclusion were three — first, that the writing was entitled “ articles of agreementsecondly, that “ she to have all for her life, was but an agreementand thirdly, that the provision “ that she should have the vendee’s barn, rested only in covenant, and if the estate should pass by way of use, and she have covenant only for the barn, it would- be unequal.” In some respects, that case presents fewer evidences of an intention not to pass the estate, than does the present. There, there was, at least nominally, a present consideration in part, and only a part w'as to be received. There, it was admitted that the vendor had the benefit of a covenant, and the writing contained an habendum and tenendum to Matthew Poster and to his heirs. Here we have an unsealed instrument purporting to convey, in consideration that the grantee would deliver one-third of the produce during the life of the grantor, and stipulating that then he should have free and peaceable possession, clear of all encumbrances. We think there is enough in it to manifest an intention that Stephen Wilcox should not have an absolute title until he should have delivered the produce, and until the death of Mrs. Cranmer. The contract was, therefore, executory, and the jury were rightly instructed that it passed a fee in equity. The judgment is affirmed. Thompson, J., dissented.