Barrett v. French

Swift, Ch. J. In this case, the plaintiffs claimed as heir at law, in right of the wife, to Anna French ; and the defendants claimed by deed from said Anna and her husband William French. The deed is in usual form, with a reservation of the use of the land to the grantors during their natural lives. It is contended, that this is an attempt to create a freehold estate to commence in futuro, and that the deed is void. But this mode of conveyance has been practised in this state from a period beyond memory ;(1) and no inconvenience [363] has resulted from it. This constant and immemorial usage is sufficient to make it a part of our common law ; and a deed of this description may be deemed one of the common assurances of real estate. Nor was this intended to innovate upon the common law, or impugn the maxim that a freehold cannot be created to commence in future. That originated from the circumstance that livery of seisin was essential to constitute a freehold estate. But prior to the emigration of our ancestors from England, methods had been devised to supersede the necessity of conforming to that regulation. It is well known, that to avoid forfeitures, it was a common expedient to vest the fee of lands in one, to the use of another ; and that to counteract this, the statute of the 27 Hen. 8. was passed, declaring that the fee should vest in him to whom the use was granted. It then became only necessary to convey to the use of one, and the statute transferred the use into possession, and the title passed without livery of seisin. Among the various modes devised was a covenant to stand seised to uses. This is where a man seised of lands in fee, covenants, in consideration of blood or marriage, to stand seised of the same to the use of his child, wife, or some other relation. In the construction of deeds, courts adopted the liberal principle, that greater consideration was to be had for the [364] passing of the estate, which is the substance of the deed, than the manner how, which is the shadow; and that a deed should never be laid aside as void, if by any construction it could be made good. Thus, a grant by one seised in fee of lands to his brother to be holden after the death of the grantor, with a covenant that he was well seised in fee, and that it should be lawful for the grantee to enter after the grantor’s death, and peaceably to hold the same, has been construed to be a covenant to stand seised to the use of the grantee, and to pass the estate. Roe d.Wilkinson v. Tranmarr, Willes 682. So in the state of Massachusetts, it has been held, that a deed from father to son to have and to hold after the death of the grantor, with a covenant that he was seised in fee, and that he would warrant and defend the premises after his decease to the grantee, his heirs and assigns, was to be considered in law as a covenant by the grantor to stand seised to his own use during his life, and after his decease to the use of the grantee and his heirs. Wallis v. Wallis, 4 Mass. Rep. 135. The deed in question was from a mother, with the assent of her husband, to her sons, expressed to be for the consideration of love and good will; and though it cannot operate as a feoffment, because it is calculated to create a freehold estate after the death of the grantor, yet being between relations, in consideration of blood, it may be deemed to be a covenant on the part of the grantor with her husband to stand seised to their use during life, and after their decease to the use of the grantees and their heirs ; and then the legal effect of the deed is, that the grantor was tenant for life, and that the grantees had an estate in remainder in fee-simple. The plaintiffs offered two witnesses, who were tenants in common with them, if they had title, to shew that the deed was not valid ; who were rejected by the court as interested in the event of the suit. Where one tenant in commom brings an action of disseisin, and grounds his claim to recover on the common title, he recovers for the benefit of the whole ; the possession of one tenant in common recognizing the title of his co-tenants, is, in legal consideration, the possession of all. Of course, if a tenant in common in such action obtains possession of the land, his co-tenants become likewise possessed. In this case, the [365] witnesses were called upon to testify in support of their own claim of title to the land ; and if the plaintiffs had recovered, they would, with the plaintiffs, have obtained possession of the land of which they were then disseised, and could have maintained an action of partition, or of account for the rents of the land. They were, therefore, directly interested in the event of the suit, and were properly excluded. Party to furnish three copies of motion or writ of error for use of the Court. An abridgment may be substituted, on obtaining an order Court for that purpose. Counsel to furnish three copies of their briefs for use of the Court. Regule Generales. Ordered, that the party who shall move for a new trial in any case which shall be reserved for the opinion of the Judges of the Supreme Court of Errors, and the plaintiff in a writ of error which shall be brought to that Court, shall furnish three copies at least of such motion or writ of error, and lodge the same with the clerk thereof, for the use of the Court, at or before the second opening of the Court : Unless the party moving for a new trial shall obtain an order of the Court which shall allow such motion, dispensing with the same, and substituting in lieu thereof an abridgment of the case approved by said Court ; and a like order by the Judge who shall sign said writ of error ; in which cases lodging said abridgment shall be a compliance with this rule. Ordered, that it shall be the duty of the counsel on both sides, in every case to be argued before the Judges of the Supreme Court of Errors, to furnish for their use three copies of a brief containing a statement of the points on which they rely, and of the authorities intended to be used in support of them. It has uniformly been decided, that the declarations of the grantor, when the grantee is not present, prior or subsequent to the execution of the deed, cannot be admitted in evidence to invalidate the deed. The principles of law relating to the case were correctly stated by the court in their charge to the jury. In this opinion the other Judges severally concurred. New trial not to be granted. Footnotes [(1)] Many proofs of this observation are to be found in our state and town records. It may not be amiss to refer the reader to one or two instances of an early date. The first is a conveyance in consideration of marriage, dated April 20th, 1644, about eight years only after the establishment of the colony at Hartford. William Lewes, sen. of Hartford covenanted with Mary Whitehead of Windsor, in consideration of a marriage to be solemnized between William Lewes, jun. and Mary Hopkins, daughter of the said Mary Whitehead, to give unto his son and the said Mary, if God dispose of a marriage betwixt them, one moiety of his house and land in Hartford, now in his possession, together with one half his household goods, &c. to them and their heirs forever ; “ and after the natural lives of the said William Lewes sen. and Felix his now wife, to give unto his son and Mary his intended wife, the other moiety of his land in Hartford, with the houses built or to be built thereon, in possession and reversion, to them and their heirs forever.” Colony Records, vol. 1. p. 417. The other instance is a conveyance in consideration of blood, by a deed dated August [363] 1st, 1673. The words of the grant are as follows : “ This writing witnesseth, that I Thomas Curtice of Wethersfield in the county of Hartford, for and in consideration of the natural love and affection which I have and bear unto my son Samuel Curtice of the same town and place, have given, granted, assigned, set over and confirmed, and do by these presents fully, clearly and absolutely give, grant, assign, set over and confirm unto my said son Samuel Curtice, his heirs, executors and assigns forever, all the estate, right, title, use, property, possession, claim and demand whatsoever, I the said Thomas Curtice have, or in time to come might or should have, in or to a dwelling-house, and land three acres and an half, bounded, &c, ; and also that barn which standeth within the land thereunto appertaining, containing forty perches, more or less, bounded, &c.; and also one piece of upland lying in the little west-field, containing twelve acres three roods ; and thirty perches, bounded, &c.; to have and to hold the said dwelling-house, home-lot, barn and that rood of land, and the twelve acres three roods, and thirty perches of upland, with all the profits, privileges and appurtenances to the same belonging, immediately after my decease, and the decease of my now wife Elizabeth, unto my said son Samuel Curtice, his heirs, executors and assigns forever, and to his and their only proper use and behoof forever, my own life, and the life of my wife as aforesaid only reserved in the premises.” Then follows a covenant of warranty. Colony Records, vol. 1. p. 436. R.