M'Kee's Leffee v. Pfout

Syllabus

THIS was an ejectment tried at the Nifi Prius for Dauphin county in October 1795, when a verdict was given for the Leffor of the Plaintiff, fubject to the opinion of the Court, on a cafe, ftating the following facts.

On the third of January 1794, a warrant had iffued for the lands defcribed in the declaration in favor of James Chambers; who, on the 6th of January 1758, made his will, and, inter alia, devifed, “that ail his eftate, after' payment of his debts, be equal- “ ly divided between his wife Sarah, and his children Rowland, “ jinn, Sarah, James, Elizabeth, Benjamin, and .J'ofeph, each “ one eighth part." The Leffor of the Plaintiff claimed one eighth part of the premifes under the .teftator’s daughter Ann, who had intermarried, twenty years ago, with Oliver Ramfay, by whom (he had iflue, and' died. Before her death, however, oil the 23nd of Oflober 1779, fhe had joined, with fame of the other devifees, in conveying their refpeiSive ihares in the eftate, for a valuable consideration, to Andrew Str.oui, the real. De-ftndant j but, at the time of executing the conveyance (touching which, fhe was feparately examined by a Judge of Dauphin county) ihe had iseen driven away Oy her hufaand, and lived ieparate from him ;—.a fa£l with which the Leffor of the Plaintiff was well acquainted. On the *ftof Qdtober. 17.85, Oliver. Ramfay (wjio is ftill' living) executed an indenture between him and the Leffor of the Plaintiff, wherein it is fet forth, “that “the faid Oliver hath granted, bargained, fold, aliened, releafed, “ enfeoffed and Confirmed, and doth grant, bargain, fell, alien, “ releafa, enfeoff and confirm, unto Robert M’-Kee, in his ac~ “ tual poffeftton now being, by virtue of a bargain and fide to “ him made, by the faid Oliver, as thefe prefartts, and by vir- “ tue of the ftatute, for transferring ufes into poffeffion, and to his heirs and alfigns, wzy undivided part and refpeéiive ihare “ and purparts of him the faid Oliver Ramfay, of, in and to “ that certain piece or tract of land, before defcribed, with all “ and fingular ways &c.' and rcverfions' and remainders.

“and alfo all the eftate, right', title, intereft, claim and dé- “ man'd, whether at law or in equity, of him the faid Oliver, “ of, in and to the fame, to have and to hold the faid refpeélive “ ihare and purpart, of in and to the faid plantation, and tract “ of land, hereditaments, and premifes, hereby granted, mentioned or intended to be, with the appurtenances, unto “ the faid Robert MdKee, To the only proper ufe, benefit and be-u hoof of them the faid Robert M-Kce, his heirs, and affigns Mforever. And the faid Oliver Ram/dy for himfelf, his heirs, “ executors and adminiftrators, not jointly, do covenant, proa “ mife, and grant to and with the faid Robert MlRee, his heirs “ and affigns. That he the faid Oliver Ramfay, hath not done “ or committed any a<ft, matter, deed, or thing whatfoeyer* “ whereby or wherewith his faid and refpeélive ihare and purpart of, in, and to the faid piece or traift of land, heredi- “ taments, and premifes, are or fhall or may be impeached^ “ charged or incumbered, in title, charge, eftate, or otherwife “ howfoever. And the faid Oliver, for himfelf, his heirs, ex- “ ecutors, and adminiftrators, not jointly, do covenant, promife, “ and grant, to and with the faid Robert Mf-Kee, his heirs and M affigns, that the faid Oliver, his heirs, executors andadmiriif- “ trators, his ihare and purpart,.of him the faid Oliver Ram- “fay, of, in, and to, the piece or trail of land aforefaid, heredi-' “ taments and premifes, againft them, their, and each and every “ of his heirs and affigns, and all and every perfon.and perfons “ whatfoever, lawfully claiming, or to claim by from or tinder “ him, or either of them, his or any of his heirs tr affigns fhall* ‘‘ and will warrant, and forever defend by thefe preients. And “ that faid Oliver, and his heirs, not jointly, do further “covenant, promife, and grant, to and with the faid Robert,. “ that they, him, hervor any of them, fliall and will, at anytime or times hereafter, at and upon the reafonable requeft, proper “ cofts and charges, in law, of the faid Robert MiKee, his heirs “ or affigns, make, execute and acknowledge, Or caufe fo to be, “ all, and every fuch" further and other reafonable act or ails,- “ deed or dee'ds, device or devices, in the law whatfoever* either “ by fine or recovery, or otherwife howfoever, for the further “■ and better conveyance, afi’urarice a,nd confirmation cf his “ refpeélive ihare and purpart of him the faid Oliver, of in and “ to the faid piece/or traél of land aforefaid, hereditaments, and u premifes, unto'the fai'd Robert, his heirs, r¿nd affigns, as by “ him or them, or his or their counfel learned in the law, ihaH “ be reafonably advifed, devifed, nr Required.” *

There is no confideration mentioned inTnis deed ; but there was a feparate receipt for ¿.6a, given by Olive- Riimfdy to

Robert MlKee-y and the deed was acknowledged, and recórdec, on the day of its date.

. The general queftion fubmitted to the Court, was—whether a conveyance in fee% by a tenant by the curtefy, is not a forfeiture of-his eftate ? And it was argued by Tngerfolty for the Lef-íor.óf the Plaintiff, and by Dúncan^nvid C. Smithy for the Defendant.

The fpecial warranty ihews the intention of the party; it Tecures the grantee againft any previous incumbrances by the grantor, and againft perforis claiming under hini, his heirs, or affigns; but there is no covenant, not even a declaration, that he is feized in fee; and, in ef-feft, he íiniply convevs his own right, whatever that may be A freehold,though not a fee, maybe made defcendibie to heirs and the nature of the conveyance under-the ftatutes, and with the claufe of warranty under tne aft of AfTembly (1 Pol. in. Dali, edit.) conveys only fuch eftate as the vendor might lawfully part with. If a tenant for his own life aliens bv feoffment, or fine, for the life of another, or in tail, or in fee, it is a forfeiture ⅞ 3 Black. Cam.i¡\. Co'. Litt. 251. Litt. f. 415. but the reafon is, that fuch an alienation tends to defeat and diveft the remainder. In a feoffment, by the word Dediy fincethe ftatute ttfuia Emptoresy the feoff only is bound to the implied warranty; and in other-forms of alienation, no warrant whatfoever is implied. 2 Bl. C. 300. 1. Co. Litt. 384. Co. Litt. 102. Litt. f. 733. The prefent deed is a bargain and falea contradi to convey for a valuable confideration; 2 Bl. Com. 338. and it has its force and operation by the ftatute of ufes. 2 Bl. Com. 327. 337. The force and operation of the words “ grant, -bargain, and fell,’' under the aft of AfTembly, (1 Fol. in. Dali, edit.) do not apply where a fpecial warranty is introduced into the deed ⅜ and the previous feftionof the aft only gives to deeds acknowledged and recorded the effeft of a feoffment, or a deed inrolled intEnglandy to perfeft the .title and feifen of the grantee; a mere bargain and fale not being before fo ftronga conveyance, as livery. Shep. 7. 219. n. (1.)

The aft of AfTembly declares, that deeds recorded {hall be of the fame force and effeft here, for the giving poffeffion and feifen, and making good the title and affurance of lands, tenements and hereditaments, as deeds of Feoffment with livery of feifen, or deeds enrolled in any of the Courts of record at- WeftminJlery are or ¡(hall be in the kingdom of Great Britain. 1 Vol. p. in. Dali. edit. The prefent deed is, therefore, an-abfolute and efficient conveyance in fee, whereas the grantor had only an eftate for life, as tenant by the cur-tefy, in the premifes. But if tenant for- life, or years, conveys a

greater eftate, than he can lawfully do, whereby the reverfiori,. or remainder is divejled, it will be a forfeiture of his eftate, as if he makes a feoffment. Co. Litt. 251.0. b. The law is the fame in the cafe of an alienation by a tenant by the curtefy. ibid, 252. o. The recording a deed is made, by the aft of Aflembly, equal in folemnity to livery if fefen, as public and notorious, and as operative to pafs and veil the eftate. So, if tenant for life bargains and fells his lands by deed enrolled, although no fee paffes, yet it is a forfeiture, and that by réafon of the enrollment, which is matter of re.cordi 2 Leon. 64. 5- In Pennfylvania* the deed on recoid is itfclf a record, and a copy of it is evidence. So, if a tenant for years make a feoffment, it is a forfeiture of his eftate; 3 Mod. 151, and, when it is Raid, in the cafe cited, that if he makes a leale and releafe, though it is of the fame operation, it will not amount to a foifeiture; the rea fon is, nf-figned in 1 T. Rep. 744. that a leafe and releafe is a lawful con-Veyán'ce; and palles 110 more than á man may lawfully part with. 2 Bl. Com. 274. 5. The paiticular tenant, by granting; a larger eftate than his own, has, by his own act. determined and put an end to his original intereft; and ón fuch determina-tión the next "taker is entitled to enter regularly, as in his remaindel, or reverfion. The criter-ion of the forfeiture is the tiilualpafp'ng an eftate, which the grancor has no right to pafs, to the prejudice of him in remainder ;—it amounts to a dif-feifin. Feoffment without livery, is faid to pafs no intereft, which is the reafon why fuch a feoffment is not a forfeitures but by the-ail of Aftcmbly, a deed recorded is equal to a feoffment with livery; and it is the matter of record, that makes the forfeiture. liarg. Co. Litt. 59. a. it. (3.)