Sanders v. Hartzog

The opinion of the Court was delivered by Moses, C. J. The Act of 1795, (General Statutes, 423,) while it prescribes the form of a release which shall be effectual for the transfer of real estate, provides “that it shall beso construed as not to invalidate the forms heretofore in use in this State.” Among those in use at its passage were not only lease and release, but bargain and sale, and a covenant to stand seized to uses. — Lessee of Ruggs vs. Ellis, 1 Bay., 109; Craig vs. Pinson, 1 Chev., 272; Chancellor vs. Windham, 1 Rich., 161. The statutory form created by the Act may be said to embrace both a lease and release, and a bargain and sale, by the introduction of modes usually employed in both. The instrument by which the land conveyed by Counts to Burrill Sanders was transferred to Eliza G. Sanders, the appellant, while it cannot take effect as a conveyance at common law, nor as a covenant to stand seized, because it failed in the consideration of marriage or consanguinity, [484] may, nevertheless, be effectual as a bargain and sale, which, alike with the covenant to stand seized, owes its creation to the Statute of Uses, if the words employed are sufficient to sustain the instrument as a contract for the sale of the land, in consideration of money or its equivalent paid. The Statute of Uses, which, immediately on its enactment, converted what had been equitable into legal estates, gave rise to new modes by which the title to land could be as securely transferred as by any form of conveyance at common law then recognized and in use. Among these was a title derived through a bargain and sale; for the use being given by the deed, the statute conveys the legal estate, and thereby confirms in the purchaser the title as well as the use. Can the deed to Eliza G. Sanders take effect as a bargain and sale ? It recites a money consideration paid, and an intention beyond dispute to vest in her the land covered by the conveyance to her grantor from Counts. While it may not employ technical words, its language is sufficient to express the purpose which the party paying the money and the party executing the deed had in view. It was evidently the design of Burrell Sanders that his grantee should “have and hold” the land in fee simple; for if any estate is conveyed it is one of inheritance. He makes no reservation, and clearly manifests his purpose to part with all “his right, title and interest” in the land. But to maintain an instrument as a valid bargain and sale, it is not necessary that technical words should be employed. Chancellor Kent, in the fourth volume of his Commentaries, 496, says: “ Nothing can be more liberal than the rules of law as to the words requisite to create a bargain and sale. There must be a valuable consideration, and then any words that will raise a use will amount to a bargain and sale.” Mr. Washburne, in his work on Real Property, (3 voh, 620,) quoting from 2 Wood Com., says: “The elementary writers insist upon the importance of the words of grant being suitable to the nature of the deed, and it is accordingly stated that for a feoffment the proper words are ‘ give,’ ‘ grant,’ ‘ en feoff,’ &c., and for bargain and sale, ‘grant,’ ‘ bargain’ and ‘sell,’ &c. But the words ‘bargain and sell’ are not essential to such a conveyance, and any words of equivalent signification, which would at common law raise a use, will be sufficient, if they show the intent of the parties.” [485] In Roe vs. Tranmarr, (Willes, 682,) the judgment of the Court, resting, as it says, on.the general rules of law in respect to the exposition of deeds laid down in many of the books, and which are collected out of them by Shephard on Common Assurances, gives effect to the maxim that verba intentioni et non e contra debent inservire, and that, “ therefore, deeds which are intended and made to operate one way, may operate another way, if the intention of the parties cannot take place, unless they operate a different way from what they were intended.” Parke, B., in ex dem Lewis vs. Davies, 2 M. & W., 516, referring to Roe vs. Tranmarr, cites, with approbation what is there said by the Lord Chief Justice, quoting from the opinion in Osman vs. Sheafe, 3 Lev., 370, “ that the Judges in these latter times (and he thinks very rightly) have gone further than formerly, and have had more consideration for the substance, to wit, the passing of the estate according to the intent of the parties, than the shadow, to wit, the manner of passing it.” In Jackson and others vs. Fish and others, 10 John., 457, it was said by the Court, of which Mr. Kent was then the Chief Justice: “ There are no precise technical words required to raise a use. If the words amount to a present contract of sale or bargain, a trust is instantly raised on which the statute operates.” We think that the words in the deed before us amount to such a contract, and the motion to set aside the nonsuit is granted, and the case is remanded to the Circuit Court for a new trial. Wright, A. J., and Willard, A. J., concurred.