Chenery v. Stevens

Bigelow, C. J. Taking the return of the officer as it stands, the levy was clearly invalid by reason of a seizure of more land than was sufficient to satisfy the execution by the sum of five dollars and eighty-nine cents. No amendment to the return has been properly made by an application to the court since the execution has become matter of record. Welsh v. Joy, 13 Pick. 477, 482. But the proposed amendment would not cure the difficulty. There would still have been more land set off than the officer had a right to take in order to satisfy the execution with all lawful fees. This is fatal to the validity of the levy. Pickett v. Breckenridge, 22 Pick. 297, is a decisive authority on this point, and also that the amount of the excess for which the levy was made is not so inconsiderable as to fall within the maxim de minimis non curat lex. The counsel for the tenant is in error in supposing that the validity of a levy, where land has been set off for too large a sum, may be made to depend on the proportion which such excess bears to the whole amount of the execution ; or, in other words, that if the error is relatively small as compared with the debt, it is immaterial that more laud has [84] been set off to the creditor than he is justly entitled to. But this cannot be so. In the transfer of title to real estate by virtue of a statute power, the requisitions of law must be strictly complied with. The sheriff can take no more land than is exactly sufficient to satisfy the execution. If he errs in this respect, as a levy cannot be void in part and valid in part, the whole is void. We are also of opinion that the demandant has a good title to the premises by virtue of the conveyance made to him in pursuance of the decree of this court by his cestui que trust. It is contended on the part of the tenant that the deed from Samuel Putnam and wife to'Almira Richards and others, under which the demandant derives title, did not convey l;o the said Almira an estate for life, but that she acquired under it only an estate in one seventh thereof in common with her children. We doubt very much whether, on the facts stated in the exceptions, this objection is open to the tenant. As his levy is void and he did not enter into possession of the estate until seisin was delivered to him by the officer, the demandant would be entitled to recover by virtue of the earlier possession of said Almira, his grantor, under the deed from Putnam and wife. This would be clearly so, but for the fact stated in the exceptions that said Almira “was not in personal possession of the premises” at the time of the levy. By this we understand only that said Almira had not actual pedis possessio of the estate. It does not mean that she had not such seisin by virtue of the paper title as would give her a valid claim to the estate as against all persons not showing a better title or an earlier seisin. But passing by this answer to the tenant’s claim, on a careful consideration of the terms of the grant we entertain no doubt that the deed in question did pass a valid title to the grantees, and that the demandant can well maintain this action to enforce the right which is vested in him as trustee of said Almira. The deed is inartificially drawn, but the intent of the parties is unequivocally manifested, that under it the entire use and enjoyment of the premises were to vest in Almira during her natural life The single inquiry then is whether this intent can be carried out [85] in accordance with the rules of law and consistently with other parts of the deed by which the estate is granted to her and her children and their respective heirs: and we are of opinion that it can. Taking the whole deed together, we think it may be construed to be a present grant to all the grantees, taking effect immediately in them all. The grant is to Almira and to the other grantees, (her children,) nominatim, who together pay the consideration, and to their heirs and assigns; and the habendum is also to them and to their heirs and assigns. If the conveyance stood thus, it would clearly vest an absolute estate in fee in all the grantees as tenants in common, one seventh in each. But this grant is qualified by the clause which provides that said Almira is to have exclusive control of the premises and the income thereof “ for her own support and use during her natural life.’’ So far as Almira is the grantee of one seventh, we do not see that her absolute title in fee is at all affected by these words. They are consistent with her enjoyment of the aliquot part granted to her in common with the other grantees; but they cannot have effect consistently with an absolute grant in fee of the other six sevenths to her children. Applying the well settled rule of interpretation, that effect is to be given to every part of a deed so as to carry into effect the intent of the parties, if it can be done consistently with the rules of law, we think the grant to the children of the six sevenths, in connection with the clause providing for the enjoyment of the estate by the mother during her life, may well be held to be a conveyance of so much of the estate to the use of the mother during her life and remainder to said grantees on the expiration of her life estate. To this extent the grant has all the essential qualities of a conveyance to uses. There are persons seised to the use of another, to wit, the six children named as grantees; there is a cestui que use, to wit, the said Almira; and a use in esse, to wit, the life estate which is executed immediately to said Almira. Cruise Dig. tit. 11, c. 3, § 5. Crabb Real Prop. § 1646. No precise form of words is necessary to create a conveyance to uses. It is sufficient if the intention to create one is clearly indicated, although the words ‘use, confidence or trust” are not used. The conveyance in [86] the present case being to the grantees in fee of six sevenths of the premises to the use of one for life is executed within the meaning of the statute of uses “ according to the form of the gift.” A conveyance of land may always be construed to be that kind or species of conveyance which may be necessary to vest the title according to the intention of the parties, if such interpretation is not repugnant to the terms of the grant. Marshall v. Fisk, 6 Mass. 24, 32. 2 Washb. Real Prop. 146. It was objected to the validity of a life estate in the premises in the said Almira that, by the terms of the deed, the grant to her was not to take effect presently, but that it was limited in terms so as to commence in futuro, and, being a freehold estate, Was therefore void. This objection is founded on a clause in the deed by which it appears that possession of the estate was not to be given to said Almira until the first day of May subsequent to the date of the deed. But we do not understand that by this it was intended that the seisin and title were not to take effect in presentí according' to the terms of the grant. On the contrary, looking at the connection in which these words are inserted, it is apparent that they have reference only to the time when the said Almira is to take on herself the expenses of repairs, taxes and insurance bn the premises, and they would seem to have been used as indicating that by reason of some outstanding lease, or the condition of the estate, or some other accidental cause, the actual beneficial occupation of the premises could not be had until this date. It follows from this view of the true meaning of the grant to Almira Richards and her children that the rulings of the court below were right. The levy of the tenant was void. The conveyance by Samuel Putnam and wife passed all the title which the original owners of the premises had, she being his residuary devisee, and it vested a valid title in the grantees. The one seventh which the said Almira owned in fee, as well as her life estate in the other six sevenths, were duly conveyed to the demandant, and he can well maintain this action against the defendant, who shows no valid title. Exceptions overruled.