Curtis v. Gardner

54 Mass. 457

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1847
• Status: Published

Opinion

Wilde, J.

At the trial of this cause, it was agreed by the parties that Elijah Clap 2d was the owner of a tract of land, including the demanded premises, and that, in August 1815, he, with Peleg and Joseph Curtis, built the saw mill, described in the demandant’s writ, on a dam crossing a stream within said tract of land. Afterwards, in 1831, said Clap conveyed the- said tract of land, with one half of said saw mill, to Edward Curtis, reserving the other half by the following clause in the deed : “ The said saw mill being in common and undivided with Peleg and Joseph Curtis, (the owners of the other half,) who have the privilege of using the same in equal shares with the said Edward until it shall run down, and taking water for that purpose when it is not wanted for the use of the grist mill.”

Whatever might be the intention of the parties to this conveyance, it is very clear, that nothing was reserved in the land but an estate for life, during the lives of the said Peleg and Joseph Curtis, and the life of the survivor; and as both have since deceased, the demandant’s title, who claims under

them, fails. It is true that only one half of the saw mill was conveyed to Edward Curtis, and the other half has been conveyed to the heirs of Peleg and Joseph Curtis, of whom the demandant is one. Whether they have a right to a half of the mill, considered as personal property, and, if they have, what remedy they may have against the tenant, if he should refuse to suffer them to occupy, are questions not to be decided in the present case. But as to the title to the land, the rule of law is inflexible. To create an estate of inheritance by deed, except by a deed to a corporation, and one or two other special exceptions not applicable to this case, the land must be conveyed to the grantee and his heirs ; and no words of perpetuity will supply the omission of these necessary words of limitation. A grant to a man to have and to hold to him forever, or to have and to hold to him and to his assigns forever, will convey only an estate for life. Lit. § 1. 2 Crabb on Real Property, §§ 955, 956. Wright v. Dowley, 2 W. Bl. 1185. Gould v. Lamb, 11 Met. 86. And the same rule applies to words of reservation or exception. If the reservation had been to Clap and his heirs, for the use of Peleg and Joseph Curtis, until the mill should run down, that would have been the reservation of a detérminable estate in fee; but the words “ his heirs ” are as essential in the reservation of such an estate, as in that of an absolute fee simple

Nonsuit confirmed.