Grout v. Townsend — 2 Hill & Den. 554

Majority

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Grout and wife vs. Townsend.

Headnote

Where a testator by will, after giving to his wife during her widowhood the income and profits of certain lands, devised the latter to R., his daughter, and the heirs of her body forever, from and after the decease or re-marriage of the wife, with a limitation over to the children of one N. in case R. died without issue : Held, .that R.’s interest under the will was not a mere life estate, with remainder to her issue, but a fee simple.

The usual acknowledgment in a deed of lands of payment of the consideration, cannot be contradicted by the grantor or those claiming under him, for the purpose of destroying the effect and operation of the deed; though otherwise, where the object is merely to recover the purchase money.

Though a feme covert cannot bind herself by a covenant, yet if she convey her lands in the forms prescribed by law, she is concluded from denying any admitted fact essential to the deed, to the same extent as other grantors j and So with regard to those claiming under her.

The possession of a tenant for life is not adverse to the remainder-man; and hence, the latter may make a valid conveyance notwithstanding such possession.

One claiming lands as heir of his mother cannot recover in ejectment against an occupant who* entered under the father, while there is an outstanding estate for life in the latter as tenant by the curtesy.

Even before the revised statutes, a tenant for life did not forfeit his estate by leasing in fee; and since those statutes no form of conveyance will work such forfeiture.

Ejectment to recover 500 acres of land in the town and comity of Saratoga, tried before Willard, C. Judge, at the Saratoga circuit. Nanning H. Visscher, being seized in fee of the premises in question and of other lands, on the 21st of September, 1808) made his last will and testament executed in due form for passing real estate, by which he devised a farm in the town of Stillwater to his son-in-law John Knickerbaclrer, Junior, and his daughter Rachel, the wife of Knickerbacker. In the third clause of the will, the testator gave his wife, Alida, during her widowhood, the income and profits of all the residue of his real estate. The fourth clause was as follows : “ I give and devise to my beloved daughter, Rachel, and the heirs of her body forever, from and after the decease or re-marriage of my wife, the one equal half or moiety of all

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the residue of my real estate; and in case of her death without such heirs, then I give and devise the same to the lawful children of my beloved uncle, Nicholas Visscher deceased, and their heirs forever.” By the fifth clause, he gave the remaining moiety to Francis Drake, in trust for his grand-child, Nanning Visscher Knickerbacker. The premises in question are a part of the residue mentioned in the 3d, 4th and 5th clauses of the will. The testator died November 10, 1808, leaving his wife surviving him, and leaving also Mrs. K. his only child. The widow of the testator entered and took the profits of the land until her death in May, 1814. On the 14th of January, 1809, Knickerbacker and his wife, by deed of bargain and sale, for the consideration, as therein expressed, of" fifty dollars, conveyed in fee to Harmanus Bleecker all the estate which they or either of them acquired under the will: and on the same day, Bleecker, by a like deed, and for the like consideration, re-conveyed the property to Knickerbacker in fee. No consideration in fact passed between the parties on the execution of these deeds; but their object was to vest the title in Knickerbacker.

On the 16th of February, 1815, Knickerbacker leased the premises in question to Isaac B. Payne in fee, and the defendant claimed as assignee of the lessee. Mrs. Knickerbacker died on the 8th of January, 3816, leaving her son Nanning Visscher, and her daughter, Rebecca Ann, one of the plaintiffs, her only children and heirs at law. Rebecca Ann married the plaintiff, Grout, in May, 1832. The plaiiltiffs claimed an undivided share of the premises, in right of the wife as one of the heirs at law of Mrs. Knickerbacker. John Knickerbacker junior, and his son Nanning Visscher, are still living. These facts were found by special verdict, referring the matter to the judgment of this court.

8- Stevens, for the. plaintiffs,

insisted: 1. That Mrs. Knickerbacker took only an estate for life under the will of her father, .Nanning H. Visscher; and on her death the

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land descended to her two children in fee, and so the plaintiffs are entitled to recover a moiety. (Pells v. Brown, Cro. Jac. 590 ; 7 T. R. 589, 592; 1 John. 441 ; 10 id. 16; 16 id. 435; 3 T. R. 145; Fearne, Cont. Rem. 341.) 2. But if she took a fée, the plaintiffs are still entitled to recover; for the deed to Bleecker did not pass her interest, for the want of a consideration. (Cruise, tit. Deed,ch. 9, § 22, 25, 26; Cro. Eliz. 374; Cro. Jac. 127; 16 John. 515 ; 14 id. 210; 3 id. 484; 20 id. 338; 1 Cowen, 622; 4 id. 427; 9 id. 266.) 3. The deed was not operative, because the grantors were not in possession. The widow of the testator then held the land. [Com. Dig. Bargain and Sale, B. 3.) 4. There is no outstanding title in John Knickerbacker junior. He forfeited his life estate as tenant by the curtesy, by leasing in fee to Payne. (4 Kents Com.. 34.)

M. T. Reynolds, for the defendant.

1. The will of N: H. Yisscher gave to Mrs. Knickerbacker a vested remainder in fee simple, to be enjoyed on the death or re-marriage of the widow. (2 Bl. Com. 110; 4-Kents Com. 6, 11, 14; 1 R. S. 717, § 3,2d ed.; Patterson v. Ellis, 11 Wend. 279 , 293, 4.) 2. The deeds from Knickerbacker and wife to Bleecker and from him to the former, vested all Mrs. Knickerbocker's interest in the premises in question in her husband. 3. If otherwise, Knickerbacker still has a life estate as tenant by the curtesy.

By the Court,

There is no room for a serious doubt in this case. The. testator gave an estate of freehold in the land to his wife, with a remainder in fee tail to his daughter Rachel, which was immediately turned into a fee simple by the operation of our. statute to abolish entails. (1 R. L. 52, § 1.) He did not give his daughter a mere life estate, with a remainder to her issue, but he gave her a fee in the plainest possible terms. Whether the limitation over to the children of Nicholas Yisscher, in the' event of Rachel’s dying without “ heirs of her body,”

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was or was not good by way of executory devise, is a question which, in the event that has happened, can never arise, and we need give ourselves no concern about it. The cases to which we are referred all go to that question. Mrs. Grout does not claim under the limitation over, but as heir at law to her mother.

The title passed by the conveyance to Bleeeker and the re-conveyance to John Kuiekerbacker Jun., in 1809. There is no doubt that a consideration is necessary to raise a use and give effect to a deed of bargain and sale. . The deed to Bleeeker acknowledges that there was a consideration, and the grantors and those claiming under them are estopped from denying that a consideration was paid. They may disprove the payment for the purpose of recovering the consideration money, but they cannot do so for the purpose of destroying the effect and operation of the deed. The cases on this subject were reviewed in McCrea v. Purmort, (16 Wendell, 460.) The case of Jackson v. Alexander, ( 3 John. 484 ,) does not conflict with, but confirms this doctrine. The prevailing opinion was delivered by Kent, Ch. J. He cites the case of Fisher v. Smith, (Moore’s R. 569,) to prove that where a consideration is mentioned in the deed, “no averment or evidence shall be admitted to say that no money was paid.” And the court held, that the words “for value received,” in a deed of bargain and sale, showed a sufficient consideration to estop the grantor and give the deed operation under the statute of uses. It is true that Mrs. ICnickerbacker was a feme covert at the time, and she would not be estopped by any covenants in the deed, because a feme covert cannot bind herself by a covenant. (Jackson v. Vanderheyden, 17 John. 167 .) But a married woman may convey her estate by deed, and when she makes a conveyance in the forms prescribed by law, she is as effectually concluded as any other grantor from denying any admitted fact which is essential to the effect and operation of the deed.

The tenant for life does not hold adversely to the remainder-man, and there is nothing in the objection that the

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widow of the testator was in possession at the time of the conveyance to Bleecker.

The conveyance to Bleecker, and the reconveyance to John Knickerbacker Jun., vested the fee in the latter, and Mrs. Grout took nothing by descent from her mother. But if the deeds were inoperative the plaintiffs cannot recover, because there is an outstanding estate for life in the father as tenant by the curtesy. He did not forfeit his estate by leasing in fee to Payne. (Jackson v. Mancius, 2 Wendell, 357.) A tenant for life only forfeits his estate when he conveys a fee by feoffment with livery of seisin, or by matter of record, as a fine or recovery. No form of conveyance can hereafter work a forfeiture. (1. R. S. 739, § 143,145.) And under the old law, the lease was a harmless conveyance which only passed such estate as the lessor had to convey.

In any view of the case, the defendant is entitled to judgment on the special verdict.

Judgment for defendant.