Majority
p. 462Jackson, ex dem. Salisbury and another, against Fish and another. NEW YORK, Oct. 1813.
Headnote
T'CTHtoc, vc lease, and/or* claim, or'tiie Iniá¿¿$¡X a deed, are sufficient to raise a trust, constitute^*a Ini'1 tST’St lands. And sideration be sufficient* tho’ no consideraUqh is expressed in the precise 'form. of words is re-a uses and if moiint to *a tract of saie°or bargain, a use Js riiscd which' the transfer into possession, The wordsTHIS was an action of ejectment for lot No. 6. in the town of T_ e ° Hannibal, m the county of Onondaga, At the trial of the cause a verdict was taken for the plaintiff, subject to the opinion of the following case:
The plaintiff gave in evidence letters patent for the lot in ques-,1 , r -r , „ * * non, dated 3d ot July, 1790, to Caleb Cornwall; also a deed dated 2d of April, 1783, from Cornwall to Edward Taylor, as follows: “ Know, See. that I, Caleb Cornwall, of, &c. have re-raised, released, and forever quitclaimed to Edward Taylor, of, &c. his heirs, Sec. whatsoever lands or claim may be made by me f°r m7 servitude as a soldier in the service of the United States. In witness whereof,” See. The plaintiff also produced in evidence ^ i the following assignment or conveyance: “ I, the above-named Ed-mard Taylor, do hereby release and assign unto Abraham Salisbxin, 0f &c. his heirs, &c. all such lands and claim to lands on which the above Caleb Cornwall became entitled to, as a soldier in the service of the United Slates of America. In witness whereof, &c. 18jK day of May, 1789.” The plaintiff also produced an instrument under the hand and seal of Caleb Cornwall, dated 2d of April, 1783, in which he acknowledged to have sold his claim °f whatever lands may be due to him as a soldier in the service of the United States, to Edward Taylor, and bound himself to a forfeiture of 40 pounds, in case of any claim made from him. These instruments from Cornwall were proved by the subscribing witnesses who testified to his identity, and that Taylor paid him 10 dollars in monej'and 3 dollars in depreciation notes, as a consideration for his claim, at the time the writings were executed. Ji was proved, also, that Salisbury, the lessor, paid Taylor 40 pounds in cattle for the lot in question, and another military lot.
The cause was submitted to the court without argument.
The conveyance from Cornwall to Taylor, in 1783, was sufficient to pass his interest in the premises. It was a bargain and sale by the words remise, release, and forever quitclaim, and these words were sufficient to raise a trust or use for the benefit of the bargainee; and by the statute of uses, the use was
p. 463
transferred into possession. The same may be said of the words release amd assign, in the deed from Taylor to the lessor of the plaintifC It was shown upon the trial that both of those deeds were founded upon a valuable consideration; and if a consideration be proved, it is sufficient, though none be expressed. 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. The cases show that the courts have not required any peculiar words in the raising of a use. Thus in 4 Leon. 2. pl. 3. a feoffment in fee on condition, and with intent that the wife should have the land for life, was held to be an estate executed presently according to the intent. And in Broughton v. Langley, (2 Ld. Raym. 373.) a devise to A. to the intent and purpose to permit B. to take the profits, was held to be the creation of a use in B. which the statute executed.
The plaintiff is, accordingly, entitled to judgment.
Judgment for the plaintiff