Majority
p. 427Jackson, ex dem. Howell and others, against John and Mary Delancey.
Headnote
The widow of a grantor of laud with warranty, he having died insolvent, is an admissible witness in support of the title of the grantee, on being released by him, and without her releasing her interest in her husband’s personal estate.. The grantor deed Taco™ Petent witness the grantee’s
consideration g¡V6 effect to a conveyance of lfinds as a oar* gain and sale ¡^pTIciTTo be. in considerture perform-conditions"tho* one of them be ¡° nofvaiTas ¡^bargain and
a bargain o£* t* vest in futuro ¿therwiseT^ seems, of a coyenant to stand seised.
When a deed states a consideration, and does not say, for other considerations, none othe* than the one expressed can be shown.
A deed cannot operate as a covenant to stand seised, unless the consideration of blood or marriage be expressed on its face.
Ejectment for-a lot of ground in the Bowery, city of* New York, tried before Edwards, C. Judge, at the New York Circuit, July 1st, 1823.
John Deitz, being seised in fee of the premises in question, died, leaving, the lessors of: the plaintiff, his heirs at law. During his lifetime, Deitz executed and delivered to Abraham Buice, his sonfin-law, a deed., of the premises in question, which, so far as it is material here, was thus: “ To all to whom these presents shall come, or may concern. Know ye, that I, John Deitz, of, &c. in consideration of the performances hereinafter mentioned, have given, granted, aliened, enfeoffed and confirmed; and, by these presents, do give, grant, alien, enfeoff and confirm unto my son-in-law, Abraham. Buice, all. my estate, real and personal; and the reversion, &c. to have, «fee. to the said, Buice, his heirs, <fcc. Provided always, and upon this special trust and confidence, nevertheless, and.upon this express condition, that he, the said Abraham Buice, his heirs, executors, administrators and assigns, shall and do permit and suffer me to be and remain in.possession, and * a j to use and enjoy all and every my said estate, both real and personal, during my natural, life, without paying cr yielding anything therefor, or in respect, thereof, and" not otherwise; and further, that from and after, my decease, the said Abraham Buice, his heirs, <fcc. shall well and truly pay unto Frederick Howell £100, and also deliver unto the said Frederick Howell two feather beds, and all my, wearing apparel; and further, that during my natural life, the said Ahrahgm Buice, his heirs, <fcc. shall and will find and provide me with good.meat. and drink, washing and lodging; and.- the said Abraham Buice is to occupy and be in possession of my house* situate' at the corner of, Eagle-street, for which he is to allow me £60 a year during ■ o
p. 428
my natural life; and further, I am to assist the said Abraham Buice jn repairing the buildings; and further, I do hereby promise that I will pay and discharge all debts and incumbrances on my said estate, except £345, which is to be paid out of my estate, for which I am to allow the said Abraham Buice interest after my debts are paid; and that from and after my decease, he, the said Abraham Buice, his heirs, &c. shall or lawfully may have, hold and enjoy the premises hereby given and granted, and every part, &c. and dispose thereof, and convert the' same to his and their own proper use and behoof, &c.”'
Abraham Buice and his wife, by deed of indenture, dated July 11th, 1803, conveyed the premises in question to Peter Crawbuck, with covenants of seisin and quiet enjoyment, a covenant against incumbrances, and for further assurance. Crawbuck conveyed to one of the defendants.
In the course of the trial, Margaret Buice, the widow of Abraham Buice, who had died since the execution of the deed to Crawbuck, was offered as a witness by the defendant, but objected to, on the ground of interest. The defendant thereupon, executed to her a general release, and especially a release of all claims by reason of her being a grantor in the deed from her husband. The objection was persisted in, on the ground that her interest consisted in a claim to a residuary share in her husband’s personal estate. The defendant then proved that her husband died insolvent, and she was sworn.
Peter Crawbuck was also offered as a witness on the part of the defendant. He was objected to, as being the immediate grantor of Mary Delancey, one of the defendants; but it did not appear that the deed, by which he conveyed, contained any covenants, and he was sworn.
The defendant examined Margaret Buice, Peter Craw-buck, and other witnesses, to show that Buice had fulfilled the conditions in the deed from Deitz; that Buice intermarried with the grantor’s daughter, and that the conveyanee was judicious, under the circumstances of the case, &c.
Verdict for the plaintiff, subject to the opinion of the .Court, on a case, with leave to turn it into a special verdict.
p. 429argued five different points whigh they made upon the case, among which were these two : 1. That the evidence of Mrs. Buicc and Orawbuck should have been rejected. 2. That the deed from Deitz and Buice was void, both as a common law conveyance, and under the statute of uses; because, first, there is no consideration, either of blood or money; secondly, because it pretends to convey an estate of freehold to commence in future ; thirdly, because the subject of the conveyance was not sufficiently located or described. To show that the deed from Deitz could not be valid as a covenant to stand seised, there being no consideration of blood expressed, or existing in fact, they cited Johnson v. Florence, ( 16 John. Rep. 47 ,) and the cases there cited; Jackson v. Cadwell, (1 Cowen’s Rep. 622 ;) Vin. Abr. Uses, (Z. a) pl. 8 ; Cruise’s Dig. Deed, ch. 12, s. 20 ; Jackson v. Sebring, ( 16 John. Rep. 515 ;) Wallis v. Wallis, ( 4 Mass. Rep. 135 .) That no other consideration could be shown than what is expressed, Maigley v. Hauer, ( 7 John. Rep. 341 ;) Schermerhorn v. Vanderheyden, ( 1 John. Rep. 139 ;) Howes v. Barker, (3 id. 506.) That an estate of freehold cannot be conveyed to commence in futuro, Barwicks Case, (5 Rep. 95, 3 res.) Roe v. Tranmer, (2 Wils. 75 ;) Pray v. Pierce, ( 7 Mass. Rep. 384 .) That the deed cannot take effect as a bargain and sale, for want of a pecuniary consideration, Jackson v. Sebring, ( 16 John. Rep. 515 ;) Jackson v. Alexander, ( 3 John. Rep. 488 ;) Jackson v. Saunders, (1 Cowen’s Rep. 622 ;) there being no livery of seisin. (Shep, Touch. 209, 220. Litt. s. 59.) As to the effect of the condition in the deed, they cited Butler v. Lady Bray, (Dy. 189, 190 ;) Shep. Touch. 219, 220. R. Bogardus, and J. O. Hoffman, contra, insisted that
On the argument at the bar,
A. Burr and L. Mitchell, for the plaintiff,
p. 430the testimony of Mrs. Buice and Crawbuck was admissible; (M'Donald v. Neilson, 2 Cowen’s Rep. 139,) and that the' deed in question was valid and effectual under the circumstances and facts in the case ; and a bar to the lessors of the plaintiff, who claim as heirs at law of the grantor. They insisted that this was a conditional estate in fee, vesting presently, and defeasible by condition subsequent. (2 Bl. Com. 154. Co. Litt. 201.) They never had contended that this was a covenant to stand seised ; because it wanted the consideration of blood upon the face of the deed ; but it was a bargain and sale, supported by a pecuniary consideration. It is not necessary for the deed to say that money is paid. That it is to be paid is enough. (Dy. 336, 6. 337, a.) Suppose the grant to be of a freehold to commence in futuro ; the conveyance is good under the statute of uses, and this has been so held, ever since the decision in Jackson v. Dunsbagh, (1 John. Cas. 91.) At page 96, this very case is put by Lewis, Ch. J. who delivered the opinion of the Court. He says, “ here is a conveyance to the bargainee, to take effect at the decease of the bargain- or, which creates a resulting use to the latter, during life, with a vested use in remainder to the bargainee in fee, both uses being served in succession out of the seisin of the bargainor. An authority to this effect will be found in Saunders on Uses and Trusts, 133, where it is said, that if a man bargains and sells his lands after seven years,, the grant is good, and until it takes place the use results.” (Bac. on Uses, 63.) The description is sufficiently certain. On the whole, it refers to the lot as being in possession of Buice.
Curia, per
In my opinion, the Judge properly admitted the testimony of Mrs. Buice. Her interest, if any, was extremely remote and contingent. Craw-buck was properly admitted, if his conveyance was merely a quit-claim; though otherwise, if he had warranted the title. How the fact was, the case does not inform us ,• and it lay with the plaintiff to show the warranty, if it existed.
But the important question is upon the validity of the deed from Deitz to Buice. It cannot operate as a bargain and sale for want of pecuniary consideration, (1 flmmn's
p. 431
Rep. 622,) and if it cannot operate as a covenant to stand seised, it is void, because it purports to convey a freehold in futuro. ( 7 Mass. Rep. 384 .) It certainly cannot operate as a covenant to stand seised, for want of the considerations of blood or marriage. It is settled, that where there is a consideration stated in a deed, and it is not said, for other considerations, you cannot enter into proof of any other; for that would be contrary to the deed. ( 7 John. Rep. 342 .) The consideration stated in this deed is as follows: “ in consideration of the performances hereinafter mentioned.” Those performances were expressed by way of condition to this effect: 1. That the grantor should occupy and enjoy for life. 2. That after his death, Buice should pay Frederick Howell, £100, &c. 3. That Buice should find and provide for the grantor, meat, drink, &c. 4. That Buice should occupy one house, and pay £60. In consideration of performing these things, after the death of the grantor, Buice was to have an estate of inheritance.
The case then comes within the principle of Jackson v. Florence, ( 16 John. Rep. 47 ,) unless the stipulation, or rather condition, that £100 be paid to Howell, distinguishes it. In that case, the lessor was a blind and infirm old man, and the consideration was his support for life. Here Deitz was an old man, extremely intemperate, and the only pecuniary consideration is a condition to be performed after the grantor’s death, until which event the estate is not' to vest. There was no covenant whatever, on the part of Buice, to perform the conditions; and his going into possession of one house and lot cannot raise an implied agreement to perform them. He was to pay rent for the use of the house. It was, then, perfectly optional with him to perform the conditions, or not.
It was contended on the argument, that the conveyance was of a present estate absolutely, to be defeated by the non-performance of conditions subsequent. It is certain, however, that no estate passed till the death of the grantor. The support of the grantor must have been his inducement for malting the deed. The grantee was under no obligation to afford such support, nor was he obligated to make
p. 432
the payment. The deed, then, when -.executed, was inoperative and void.
The premises in question are not designated hy the deed, except under the general description of all my estate. S uch a description has been adjudged insufficient in a sheriff’s deed; but the same considerations do not apply as between individuals. On the whole, however, I am of opinion, that, all other objections aside, the deed in question is inoperative as a bargain and sale, for two reasons: 1. Because there is no pecuniary consideration; and 2. because it purports to convey an estate in fee simple; to commence in futuro, without any other less estate to support it.
Judgment for the plaintiff.