Gorham v. Daniels

23 Vt. 600

Opinion

The opinion of the court

Footnotes

•

* was delivered by

Redfield, J.

This case has been twice argued, and mainly upon the question how far the statute of Henry VIII of England, called the statute of uses, is to be considered in force in this state. It seems to me very much to be regretted, that so important a question should have come to a final determination in a case so utterly insignificant in pecuniary consequence. But I have given my best attention to the subject, during the two arguments, and notwithstanding, it seems to be conceded, that the statute of uses is considered in force in most of the other American states, and would answer a good purpose, in many cases, in effecting, at law, the real intention of the parties, without the necessity of a resort to a court of equity, and the farther consideration, that it is known, that the late Mr, Justice Thompson, of the United States’ Supreme Court, while presiding in the circuit court, in this state, upon argument, and after a deliberate consideration, in a written opinion of considerable labor, decided that it was in force here, still I cannot bring my mind to that conclusion. See 1 Greenleaf’s Cruise 349, and the learned editor’s elaborate note upon the subject, where the matter is fully discussed.

But so far as the'conveyance of lands, in this state, is concerned, it seems to me, that our statutes are fully adequate to all the ordinary incidents of the subject, and that in those extraordinary occasions, where the statute of uses might answer a good end, it will be safer, and better every way, to have resort to a court of equity, than to introduce a portion of the ancient common law system of convey-, ing real estate, most of the incidents of which having been materially modified, even in England, since the separation of this country from that, it would become necessary immediately to resort to very extensive legislation, in order to render this addition to our present laws even tolerable.

This view is certainly confirmed by the history of our jurisprudence upon this subject. Nothing ever existed in the history of this state, calling, in the slightest degree, for the use of such a statute, except in those cases, where, by some mistake, the parties have failed fully to effect their intention in the prescribed mode. The statute of uses would no doubt aid somewhat this class of cases. But its original purpose and design had not the remotest bearing, or purpose, in that direction even. And to adopt a portion of a system of laws, which will in its train, very likely, draw in the whole, for the mere purpose of effecting some collateral purpose in a particular cause, seems almost absurd.

We entertain no doubt, that our system of conveyancing, so different from the English, so simple and intelligible to all, and so intended to be, by means of a thorough system of registry, from the very first, was designed to be entire in itself. And although most of its terms, and many of its forms of deeds even, like that of bargain and sale, derived their meaning and operation, to some extent, from the common law and the English statutes, and that of uses among others, yet it was no doubt the purpose of the framers of our laws upon conveyancing to have them “ understanded” of the people, without the necessity of resorting to the study of the subject in other quarters. Such has been the practical construction of the subject by all, professional, or unprofessional, ever since. With rare exceptions, the profession in this state have never supposed any of the common law modes of conveyancing could be regarded as in force here. The attempt to bar an entail,. in this state, by a common recovery, or the rights of a married woman, by a fine, would, I think, strike the profession with some surprise.

The late Chief Justice Chipman, who knew more, perhaps, of the probable purpose of the legislature, in passing the statute of conveyancing, when first adopted, than any other man ever did, in his dissertation on this subject, published nearly contemporary with the first statute upon this subject, which formed the basis of all our subsequent legislation in regard to the matter, says in express terms, that our deed of bargain and sale did not derive its force from the statute of uses, but from the common law, and that “ none of the statutes of Great Britain, as such, have any force in this state.” Edition of 1793, pp. 145, 146. And from that time forward such has no doubt been the general sense of the profession and of the people. And this court have often expressed similar opinions, and the whole course of our decisions upon this subject has been based upon this view. Wheelock v. Moulton, 15 Vt. 519. Isham, Adm’r, v. Bennington Iron Co., 19 Vt. 230. The frequent resorts made to the court of chancery, from the earliest times, to perfect a conveyance of real estate, defectively executed, very strongly confirm this view. For if the statute of uses had really been in force in this state, from the first, it seems wonderful no one should have suggested the aid of that statute, in this class of cases.

In regard to the remainder of the case, the authority of Adams v. Dunklee seems to me decisive of the plaintiff’s title, under the deed of Amaziah Richmond to Warren Richmond. The most, which could be made of that deed, is a reservation of an estate during the the life of the grantor and his wife. This would of course leave the estate in his personal representative after his decease. And the only right, which the widow could have, would be by way of dower. This, at common law, would give her no right of entry, until after the assignment of her interest therein. But in Grant v. Parham, 15 Vt. 649, it was considered, that the dowress, upon the decease of her husband, had a present vested estate, which she might convey. And in Connecticut it is considered the widow is a tenant in common with the heirs; and if the law is so to be regarded here, she has a good right of entry, whether as against a stranger, or her co-tenant. And by Revised Statutes, chap. 51, sec. 11, the widow has secured to her, in express terms, a concurrent right with the heirs. “ She may continue to occupy the same with them.” That is giving her the same right of occupancy with the heirs, and must of necessity extend to all cases of land, of which the husband died seized. The form of expression, “ continue to occupy,” has reference only to the connection kept up between the title of the dowress and the husband. I should therefore be inclined to think, that, as dowress, she had the same right of entry, which the husband had during his life.

The granting of an estate in fee, to take effect after a particular estate reserved, as an estate for life, or lives, is not inconsistent with the law of England. And if it were, it could have no application here; for under our statute of conveyancing, there being no livery of seizin in fact necessary to invest the grantee with the title, but only the seizin resulting from the due execution and recording of the deed, there is no objection whatever to the creating of a freehold estate, in terms, to take effect in future. This has been expressly decided in some of the American states, and we see no valid objection to holding the same, under our statute.

Note ev Redfield, J. The point, upon which this case was finally determined by the court, not having been so much discussed by the counsel, as that in relation to the operation of the statute of uses in this state, some question might be made, whether the estate of the husband here was such, whereof the wife is entitled to dower. But it seemed to us, no reasonable doubt could be entertained upon that point. The statute of this state is very extensive, endowing the wife of all “ real estate of which her husband died seized in his own right,” the latter clause being intended to exclude trust estates doubtless. Now it could not, with any degree of fairness, be argued, that this was not an estate, of which the husband died seized in his own right, although intended for the benefit of another. That must include all estates, which descend to heirs. And although this reservation was doubtless intended for the benefit of the wife, yet in law it was the estate of the husband in his own right, and descendible to the heirs, as much as if its duration had been measured by the life of any other person.

This is substantially the principle of the rule of the common law, as to the estate of which the widow is dowable, notwithstanding the text writers have laid down the rule in more limited terms. For instance, in 2 Bl. Com. 131,it is said, she is endowable of all lands, of which the husband was seized “ in fee simple, or fee tail.” And in 1 Greenleaf’’s Cruise 152 the rule is laid down much in the same terms, upon the authority of Littleton, sec. 36; but this is merely the English statute. But the principle of the right of dower at common law seems to have been based upon the wife being of such age, that she might by possibility have children, which could inherit the estate of the husband. Lift., sec. 53, 40 a 1 Co. Litt. 578, (Thomas’ Arrangement.) So that, if the estate were limited in tail to the issue of another venter, or if the wife did not attain the age of nine years, or if the wife were an alien, in all these cases she was not entitled to dower. And by parity of reason, if the estate were inheritable by the wife’s issue, although less than a fee simple, the wife should be endowable ; and the statute in this state has so defined her right of dower, in all estates of which the husband died seized.

X have spoken of dower in one third of the husband’s real estate of inheritance, as a common law right, which strictly it is not. That is now fixed by a succession of English statutes, and in that country extends to all the dowable estate, of which the husband was seized during the.coverture. At common law the husband might endow his wife of such portion of his estate, as the terms of the marriage contract required, and this was done before the priest, as a part of the marriage service, as the ritual .of .the English church still indicates, — “Of all my worldly goods I thee endow,” — which is now regarded as of no other significance, than to give the wife, in form, what she is in law entitled to claim, — a maintenance out of his property, during life; but formerly it was essential to the wife’s rights. The incidents attending the estate of dower in the English law, before Magna, Cliarta, are rather matters of curious speculation to the learned antiquary, than of any practical value towards a correct understanding of the subject, here or in England, where it has for many centuries been dependent exclusively upon statutes, and which has always been the case in the American states.

Kellogg, J., having been of counsel, did not sit upon the trial of the ease.