Spencer, Ch. J. delivered the opinion of the court.
If the deed of the 11th of September, 1786, from Clark, the soldier and patentee, to Belknap, can operate as a bargain and sale, then the title of the lessor, Robert Troup, is defeated. The 5th section of the act of the 6th oí April, 1790, (sess. 13. ch. 59. 2d Greenl. 333. Ed. Laws. ) requires the letters patent to be issued in the names of the persons Who have actually served in the line of the army of the United States ; and it provides that the lands so to be granted, shall be •deemed and adjudged to have vested in the respective [175]*175grantors, or their heirs and assigns respectively, on the 27th of March, 1783. And all grants, bargains, salen, devises, and other dispositions, made by any of the said grantors, of the said land, so to be granted to them respectively, or any part thereof, between the 27th day of March, in the year last aforesaid, (1783,) and the date of such letters patent respectively, shall be as good and effectual as if the said letters patent had been granted on the said 27th day of March, in the year last aforesaid.
The title set up by the defendant is under a deed of the 11th of September, 1786 ; and if it is effectual to pass Clark’s interest in the land, as a conveyance, (Jackson v. Fish, 10 Johns. Rep. 456.) the act gives it effect, although the legal title was not then vested in Clark by letters patent. In considering this instrument, the lessor of the plaintiff must be viewed as standing precisely in the situation Clark would have stood, if he were the lessor of the plaintiff, and had never conveyed ; I mean as regards the legal title to the premises, and the construction to be put on the deed of the 11th of September, 1786.
The plaintiff’s counsel have seen fit to rest their cause on the decision of this Court, in Jackson v. Myers, (3 Johns. Rep. 388.) and Jackson v. Clark, (3 Johns. Rep. 424.) The latter case does not require comment. The writing there was clearly a contract to sell, and not a sale of the land.
In the former case, it appeared, that Van Kleeck and Ludlow entered into articles of agreement, under their hands and seals, in which Van Kleeck, for the consideration therein after mentioned, granted, bargained, sold and conveyed certain premises to Ludlow, to hold in trust for William and Gabriel Ludlow, their heirs and assigns, for ever; and Van Kleeck covenanted to make a good and sufficient deed by the first of May then next; in consideration whereof, Ludlow covenanted, that he and William Ludlow, or one of them, would assign bonds given by persons in the counties of Dutchess and Albany, (including Van Kleecks bond to Wm. Ludlow) to the amount of 1,700 pounds ; and the parties mutually agreed to secure the said lands and bonds to he severally conveyed and assigned, against all confiscations; [176]*176and the articles provided for other contingencies, which it is neecMess to detail. Kent, Ch. J. who delivered the opinion °f the Court, placed the decision on two points : 1. That the deed was to be considered as a mere article of agreement, and not a conveyance of an estate ; and, 2. That it would not operate as a bargain and sale, because a use, on bargain and sale, could not be limited to any other person than the bargainee.
Though I concurred in result of the opinion expressed on both points, in this case ; yet, I do not agree, that it governs the one now under consideration. I do not assent to all the illustrations made use of by the Chief Justice, though I have no doubt that the deed, in the case cited, ought not to have been considered as a conveyance of the estate. One of the considerations urged by the Chief Justice is decisive, that there was no consideration paid or acknowledged for the conveyance, but only an agreement that bonds should thereafter be assigned, and a mutual covenant to secure the lands and bonds to be conveyed and assigned, from confiscation; and he pointedly asked, “ after this who can doubt of the intent ?” It was a controling circumstance; for Van Kleeck not having received his ■consideration money, never meant to part with the estate until that was paid. The agreement was executory, and to have construed it to be executed, would have perverted the intention of one of the parties, who intended to retain the estate, until he was paid. The case was compared to agreements relative to leases, and cases were cited, showing that where the whole instrument imported that something ulterior to the agreement was to be done, by way of a regular lease ; it showed the intent to be, notwithstanding the words of the demise were in presentí, that the writing was to operate as an agreement for a lease, and not for the lease itself.
The only case cited where the question arose upon an instrument set up as a deed, was, that of Foster v. Foster ; (1 Lev. 55. 1 Sid. 82.) and on the peculiar phraseology of the instrument, and the discrepancies which occurred in considering it a conveyance, though there were words of [177]*177conveyance in presentí, the Court held, that the articles rested in covenant, andas preparatory agreements. Even in reference to what shall be an agreement for a lease, or a lease, no general rule can be laid down. Each case must depend very much on its own circumstances. " This is abundantly verified by the case of Jackson v. Kisselbrack, (10 Johns. Rep. 336.) and the cases there cited. In the principal case, there were words of present demise, and an express stipulation that the demised premises were to be surveyed, and a lease to be given; yet we held, that it amounted to a lease in presentí. In that case I laid down this proposition, that “ none of the cases will be found to contradict the position, that when there are apt words of present demise, and to these are superadded a covenant for a further lease, the instrument is to be considered a lease, and the covenant as operating in the nature of a covenant for further assurance.” In all the cases cited by the Chief Justice, in Jackson v. Myers, relating to agreements for leases, there were (I observed,) no words aptly, and precisely importing present demises; and I referred to the case of Bracey and Nugent, in error from the Kings Bench in Ireland, stated by Lord Kenyon, in 5 Term Rep. 163. in which there were apt words of present demise, and an express agreement that leases should be drawn and signed. Lord Kenyon, speaking of that case, said, the words were express and unequivocal, and could have no other meaning than that given to them j namely, that it should operate as a present demise. The case of Baxter v. Browne, (2 Bl. Rep. 973.) was referred to, as a strong case supporting the same doctrine.
In considering the deed of the 11th of September, 1786, it is evident, that the parties did believe, that no legal conveyance could be made of the lands to which Clark might be entitled, under the concurrent resolution of the legislature; hut, though this was their opinion and belief, it is equally evident to me, that they meant to have the instrument operate both as an agreement for a conveyance, and also as a present conveyance.
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Spencer, Ch. J. delivered the opinion of the court.
If the deed of the 11th of September, 1786, from Clark, the soldier and patentee, to Belknap, can operate as a bargain and sale, then the title of the lessor, Robert Troup, is defeated. The 5th section of the act of the 6th oí April, 1790, (sess. 13. ch. 59. 2d Greenl. 333. Ed. Laws. ) requires the letters patent to be issued in the names of the persons Who have actually served in the line of the army of the United States ; and it provides that the lands so to be granted, shall be •deemed and adjudged to have vested in the respective [175]*175grantors, or their heirs and assigns respectively, on the 27th of March, 1783. And all grants, bargains, salen, devises, and other dispositions, made by any of the said grantors, of the said land, so to be granted to them respectively, or any part thereof, between the 27th day of March, in the year last aforesaid, (1783,) and the date of such letters patent respectively, shall be as good and effectual as if the said letters patent had been granted on the said 27th day of March, in the year last aforesaid.
The title set up by the defendant is under a deed of the 11th of September, 1786 ; and if it is effectual to pass Clark’s interest in the land, as a conveyance, (Jackson v. Fish, 10 Johns. Rep. 456.) the act gives it effect, although the legal title was not then vested in Clark by letters patent. In considering this instrument, the lessor of the plaintiff must be viewed as standing precisely in the situation Clark would have stood, if he were the lessor of the plaintiff, and had never conveyed ; I mean as regards the legal title to the premises, and the construction to be put on the deed of the 11th of September, 1786.
The plaintiff’s counsel have seen fit to rest their cause on the decision of this Court, in Jackson v. Myers, (3 Johns. Rep. 388.) and Jackson v. Clark, (3 Johns. Rep. 424.) The latter case does not require comment. The writing there was clearly a contract to sell, and not a sale of the land.
In the former case, it appeared, that Van Kleeck and Ludlow entered into articles of agreement, under their hands and seals, in which Van Kleeck, for the consideration therein after mentioned, granted, bargained, sold and conveyed certain premises to Ludlow, to hold in trust for William and Gabriel Ludlow, their heirs and assigns, for ever; and Van Kleeck covenanted to make a good and sufficient deed by the first of May then next; in consideration whereof, Ludlow covenanted, that he and William Ludlow, or one of them, would assign bonds given by persons in the counties of Dutchess and Albany, (including Van Kleecks bond to Wm. Ludlow) to the amount of 1,700 pounds ; and the parties mutually agreed to secure the said lands and bonds to he severally conveyed and assigned, against all confiscations; [176]*176and the articles provided for other contingencies, which it is neecMess to detail. Kent, Ch. J. who delivered the opinion °f the Court, placed the decision on two points : 1. That the deed was to be considered as a mere article of agreement, and not a conveyance of an estate ; and, 2. That it would not operate as a bargain and sale, because a use, on bargain and sale, could not be limited to any other person than the bargainee.
Though I concurred in result of the opinion expressed on both points, in this case ; yet, I do not agree, that it governs the one now under consideration. I do not assent to all the illustrations made use of by the Chief Justice, though I have no doubt that the deed, in the case cited, ought not to have been considered as a conveyance of the estate. One of the considerations urged by the Chief Justice is decisive, that there was no consideration paid or acknowledged for the conveyance, but only an agreement that bonds should thereafter be assigned, and a mutual covenant to secure the lands and bonds to be conveyed and assigned, from confiscation; and he pointedly asked, “ after this who can doubt of the intent ?” It was a controling circumstance; for Van Kleeck not having received his ■consideration money, never meant to part with the estate until that was paid. The agreement was executory, and to have construed it to be executed, would have perverted the intention of one of the parties, who intended to retain the estate, until he was paid. The case was compared to agreements relative to leases, and cases were cited, showing that where the whole instrument imported that something ulterior to the agreement was to be done, by way of a regular lease ; it showed the intent to be, notwithstanding the words of the demise were in presentí, that the writing was to operate as an agreement for a lease, and not for the lease itself.
The only case cited where the question arose upon an instrument set up as a deed, was, that of Foster v. Foster ; (1 Lev. 55. 1 Sid. 82.) and on the peculiar phraseology of the instrument, and the discrepancies which occurred in considering it a conveyance, though there were words of [177]*177conveyance in presentí, the Court held, that the articles rested in covenant, andas preparatory agreements. Even in reference to what shall be an agreement for a lease, or a lease, no general rule can be laid down. Each case must depend very much on its own circumstances. " This is abundantly verified by the case of Jackson v. Kisselbrack, (10 Johns. Rep. 336.) and the cases there cited. In the principal case, there were words of present demise, and an express stipulation that the demised premises were to be surveyed, and a lease to be given; yet we held, that it amounted to a lease in presentí. In that case I laid down this proposition, that “ none of the cases will be found to contradict the position, that when there are apt words of present demise, and to these are superadded a covenant for a further lease, the instrument is to be considered a lease, and the covenant as operating in the nature of a covenant for further assurance.” In all the cases cited by the Chief Justice, in Jackson v. Myers, relating to agreements for leases, there were (I observed,) no words aptly, and precisely importing present demises; and I referred to the case of Bracey and Nugent, in error from the Kings Bench in Ireland, stated by Lord Kenyon, in 5 Term Rep. 163. in which there were apt words of present demise, and an express agreement that leases should be drawn and signed. Lord Kenyon, speaking of that case, said, the words were express and unequivocal, and could have no other meaning than that given to them j namely, that it should operate as a present demise. The case of Baxter v. Browne, (2 Bl. Rep. 973.) was referred to, as a strong case supporting the same doctrine.
In considering the deed of the 11th of September, 1786, it is evident, that the parties did believe, that no legal conveyance could be made of the lands to which Clark might be entitled, under the concurrent resolution of the legislature; hut, though this was their opinion and belief, it is equally evident to me, that they meant to have the instrument operate both as an agreement for a conveyance, and also as a present conveyance. It is expressly recited, that Clark had no legal title in, or right to, convey the lands by deed j hut the instrument goes on to state: “ yet, notwithstanding, [178]*178for the consideration of 4 pounds, paid by Belknap, hath, and these presents doth grant, bargain, and sell, all and singular my right, title, and interest of, and in the 600 acres of land, unto the said Isaac Belknap, jun. his heirs and assigns for erer.”
I cannot resist the conclusion, that the parties prudently and cautiously intended to take every chance, that the deed should operate as a present conveyance, if it legally could 5 but at all events, as an agreement secured by a penalty for a future conveyance.
, It is not doubted, I believe, that if the parties intended this as a conveyance, that it could legally operate as a bargain and sale. The case of Jackson v. Fish and another, (10 Johns. Rep. 456.) is to this point. The deed there was from the soldier, to whom a patent had been granted for military lands: the patent issued the 3d of July, 1790, andr the conveyance was on the 3d of April, 1783. The words of conveyance were remise, release, and for ever quit claim, and we held these words sufficient, as a bargain and sale, to raise a trust or use, for the benefit of the bargainee.
If we advert to some of the settled and well-defined rules of construction, as applicable to conveyances of land, the conclusion, I think, is inevitable, that we are bound to construe the deed from Clark to Belknap as a present conveyance of the land.
The construction ought to be made on the entire deed, and not merely upon any particular part of it; and, therefore, every part of a deed ought, if possible, to take effect, ‘and every word to operate. A deed, and especially a deed poll, is always construed most strongly against the grantor. If a deed cannot operate in the manner intended by the parties, the judges will endeavour to construe it in such a way as that if shall operate in some other manner; it being a maxim quando quod ago, non valet ut ago, valeat quantum valere potest, Upon this principle, it has been determined, that a deed which was intended to operate as a lease and release, but could not take effect in that manner, was good as a covenant to stand seised. Where a deed may enure in different ways, the person to whom it is made shall have his election which way to take it, and he may take it that way [179]*179as shall he most for his advantage. (4 Cruise's Dig. tit. 32. c. 23. Shephard's Touchst. 82, 83.) These principles are the landmarks on which real property essentially depends. In Goodlitle v. Bailey, (Comp. 600.) Lord Mansfield said, the rules laid down in respect to the construction of deeds are formed in law, reason, and common sense; that they shall operate according to the intention of the parties, if by law they may, and if they cannot operate in one form, they shall operate in that which by law will effectuate the intention.
Now, I cannot bring my mind to doubt that it was the intention of the parties to the deed of 1786, that Belknap should acquire and have the bounty lands to which Clarke was to be entitled. They adopt two modes to effectuate that purpose; the one by an agreement for a future conveyance, supposing that the lands could not then be conveyed; the other, lest, peradventure, they were in an error, by a direct and immediate conveyance. When the deed given is sufficient to carry their primary intention into effect, by upholding it, as a present conveyance, I am at a loss for a reason why we should not construe the deed so as to effectuate the intention of the parties, when, by law, we may.
I think I have shown, that the leading features of this case, are entirely dissimilar to that of Jackson v. Myers. In this case ff¡e consideration was paid, and nothing more was to be done by the grantor than to make a further assurance : in that case, the consideration money was to be paid, and to have construed the instrument as a conveyance, would have been inequitable and unjust, as between the parties.
If the patentee himself was seeking to recover the lands, can there be a doubt that we should, as against him, construe his deed to be a conveyance ? If so, the lessor of the plaintiff stands in no better situation, and cannot, with more success, object to the deed.
Judgment for the defendant,