Francis Gowdy Distilling Co. v. Grant

Baldwin, J. The plaintiff’s right to use the pass-way in question rested upon a mere license, not executed or acknowledged in the manner required for conveyance of land. By its express terms it was to cease and determine if Gowdy should sell or dispose of the' farm. The answer alleges that he did dispose of it by conveying it to William C. Messinger, who on the same day conveyed it to Helen J. Gowdy, who now owns it; and the issue, upon a traverse of these averments, was found for the defendant by the Superior Court. The plaintiff claims that it is apparent that the deed to Messinger was given merely as a step in the process of transferring the farm to Mrs. Gowdy; and that as, upon her acquiring title, her husband became a tenant by the curtesy, and it is found that both conveyances were made on May 3d and recorded on May 4th, the whole proceeding was plainly a device of Mr. Gowdy to terminate the license, while virtually retaining the land. [477] No such question appears to us to arise upon the pleadings, which do not even state that Helen J. Gowdy was the wife of Francis Gowdy. But had they done so, the conveyance to Messinger is none the less a disposition of the farm because he afterwards conveyed to her, whether he did so in pursuance of a previous understanding with her husband, or not. The deed to Messinger was expressed to be given “for divers good causes and considerations thereunto moving, especially for one hundred dollars, received to my full satisfaction of William C. Messinger; ” habendum to him and his “ heirs and assigns to the only use and behoof of the said Messinger, his heirs and assigns forever, so that neither I, the said Gowdy, nor any other person or persons in my name and behalf, shall or will hereafter claim or demand any right or title to the premises or any part thereof, but they and every of them shall, by these presents, be excluded and forever barred.” Upon the execution and delivery of this conveyance, the grantor was wholly divested of the title. He had disposed of the land to a person competent to take, and who accepted the conveyance. As between him and Messinger, the recital of a valuable consideration and the habendum clause, prevented any resulting trust in his favor, whether in fact the conveyance was voluntary or not. Belden v. Seymour, 8 Conn., 304. Whether Messinger was under an obligation, enforceable in equity, to convey the land to Mrs. Gowdy, was a question with which the plaintiff has no concern. Elston v. Schilling, 42 N. Y., 79. He could only convey to her what he owned, and what he owned his grantor could not own. The notice to the plaintiff that the license was determined was given by the defendant and Mrs. Gowdy, during the life of her husband, and at a time when he was tenant by the curtesy of the farm. If any notice by the owners of the land was requisite for the termination of the license, that given was insufficient, because he did not join in it, although he was at the time the holder of a freehold estate in his own right, which gave him the power to manage or dispose of the farm for the term of his life. But by its express terms, if at [478] any time the farm should be sold or disposed of, the license was thereupon, to cease and terminate. If this provision could be construed as meaning that it was to continue until due notice from the purchaser of his election to terminate it, a sale and conveyance would not pass an unincumbered estate to any one having knowledge of the license, nor could the vendor safely give a deed with the usual covenants. The words which the parties to the license have used to express their agreement, if taken in their ordinary and natural sense, put an end to the right of way as soon as the land was alienated. To give them any different meaning would be contrary to the general policy of our law, by which the free transmission of the absolute title to real estate from one owner to another is always favored. The license, therefore, was ipso facto determined, when the conveyance to Messinger took effect. There is no error in the judgment appealed from. In this opinion the other judges concurred.