Jackson v. Cary

New York Supreme Court

Jackson v. Cary

16 Johns. 302

New York Supreme Court·Decided May 15, 1819·Published·Cited by 16 cases

Opinion

Spencer, Ch. J. delivered the opinion of the Court.

The first objection to the deed from the Kips is, that it is a deed of bargain and sale, and that upon such a deed a use cannot be limited to any other person than the bargainee. This Court adopted and recognized that principle, in Jackson v. Myers, (3 Johns. Rep. 396.) Sanders, in his Treatise on Uses and Trusts, gives this question a very full discussion. He says, (p. 315.) “ that the nature of the estate since the statute is the same as it was befojre; that the bargainee is still but a cestui que use, and though he has a legal, instead of a fiduciary estate, since the statute, yet, that legal estate is made such by force of the statute of uses, and not accordindg to the rules of the common law; Upon this principle, it has been held, and is now established, that, no use can be limited to arise out of the estate of the bargainee to a third person,

(a) for that would be to limit a use to arise upon a use. Therefore, if A. bargains and sells in fee to C., to the use of A., (the bargainor,) orto any other person, for life, or in fee, this limitation to the use is [305]*305void. But though this declaration of the use is void as a use, yet it has been a question, whether it would not be supported as a trust, in Chancery’’: And he apprehends it would be supported in that Court. Shepherd, in his Touchstone, (505, 506, 507.) holds the same doctrine. He observes, that if one seised of land in fee, bargain and sell it, or make a lease of it to another in trust, or for the benefit of a third person, this is but a Chancery trust, in this third person, as was clearly held in 8 Car. B. R. / and he proceeds to show that a fine, feoffment, or recovery, may be had of land, to the use and intent, that either the parties thereto, or others, shall have it for any time or estate. Cruise, (tit. 12. ch. 2d sec. 11. 12. 24.) confirms the positions of Shepherd and Sanders ; and, indeed, there is no case to the contrary. This doctrine receives full and complete confirmation from the observations of Lord Hardwicke, in Hopkins v. Hopkins. (1 Atk. 591.)

The legal estate, therefore, was in. Cary and wife, under the deed from the Kips; and it is the settled doctrine of this Court, that we look only to the legal estate in an action of ejectment, disregarding the equitable interest. (8 Johns. Rep. 488. and the cases there cited.)

Mrs. Cary having survived her husband, and the estate granted to them being neither in joint-tenancy nor tenancy in common, and so not affected by the statute, she, as survivor, takes the whole legal estate. This point was decided at the last term, in Jackson v. Stevens.*

• Independently of these considerations, the case shows that the defendant deduced a legal title to himself, as the heir of Cornelius P. Low, who, it was proved, acquired a complete title to the premises under the original patentee ; and, most certainly, she was not concluded by the deed from the Kips, from asserting her title. Without stopping, therefore, to inquire whether, under any circumstances, the lessor of the plaintiff could avail himself of that deed, as an estoppel, which I am clearly of opinion he could not, the defendant never could be estopped by it, as she was a feme covert when it was given.

The evidence of declarations made by the defendant avail nothing, for although parol declarations of tenancy [306]*306have been received, with certain qualifications, parol proof jiag never yet been admitted to destroy pr take away a title. To allow parol evidence to have that effect, would be in-traducing a new and most dangerous species of evidence.

The statute, to prevent frauds and perjuries, which has been considered the magna charla of real property, avoids all estates created by parol, and all declarations of trust, excepting resulting trusts, regarding any lands, tenements, or hereditaments. Yet, in defiance of this statute, we are asked to devest the defendant of what appears to be a complete title to the premises, by her parol declarations. This cannot be listened to.

Judgment for the defendant.

Though a use cannot be limited, on a bargain and sale, to any person but the bargainee; yet, by- a lease and release, a use may be limited to third persons, the possession of the releasee being sufficient to serve such uses: As if A. bargains and sells land to B. for a year, and releases to him; habendum to B., his heirs and assigns, to the use of C. for life, remainder to D. for life, &c.; for the statute intervenes and transfers the possesion to C. the cestui que use. But if the first use is declared to the releasee himself, in fee, (as in the above case,) he is in by the common law, the release operating by enlarging the estate of B. to a fee, and the seisin is no longer open to serve uses to third persons;■tGo. JAtt. 276. a. Butler’s note. Sanders on Uses, 864; 365,366; 367.1

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Spencer, Ch. J. delivered the opinion of the Court.

The first objection to the deed from the Kips is, that it is a deed of bargain and sale, and that upon such a deed a use cannot be limited to any other person than the bargainee. This Court adopted and recognized that principle, in Jackson v. Myers, (3 Johns. Rep. 396.) Sanders, in his Treatise on Uses and Trusts, gives this question a very full discussion. He says, (p. 315.) “ that the nature of the estate since the statute is the same as it was befojre; that the bargainee is still but a cestui que use, and though he has a legal, instead of a fiduciary estate, since the statute, yet, that legal estate is made such by force of the statute of uses, and not accordindg to the rules of the common law; Upon this principle, it has been held, and is now established, that, no use can be limited to arise out of the estate of the bargainee to a third person,

(a) for that would be to limit a use to arise upon a use. Therefore, if A. bargains and sells in fee to C., to the use of A., (the bargainor,) orto any other person, for life, or in fee, this limitation to the use is [305]*305void. But though this declaration of the use is void as a use, yet it has been a question, whether it would not be supported as a trust, in Chancery’’: And he apprehends it would be supported in that Court. Shepherd, in his Touchstone, (505, 506, 507.) holds the same doctrine. He observes, that if one seised of land in fee, bargain and sell it, or make a lease of it to another in trust, or for the benefit of a third person, this is but a Chancery trust, in this third person, as was clearly held in 8 Car. B. R. / and he proceeds to show that a fine, feoffment, or recovery, may be had of land, to the use and intent, that either the parties thereto, or others, shall have it for any time or estate. Cruise, (tit. 12. ch. 2d sec. 11. 12. 24.) confirms the positions of Shepherd and Sanders ; and, indeed, there is no case to the contrary. This doctrine receives full and complete confirmation from the observations of Lord Hardwicke, in Hopkins v. Hopkins. (1 Atk. 591.)

The legal estate, therefore, was in. Cary and wife, under the deed from the Kips; and it is the settled doctrine of this Court, that we look only to the legal estate in an action of ejectment, disregarding the equitable interest. (8 Johns. Rep. 488. and the cases there cited.)

Mrs. Cary having survived her husband, and the estate granted to them being neither in joint-tenancy nor tenancy in common, and so not affected by the statute, she, as survivor, takes the whole legal estate. This point was decided at the last term, in Jackson v. Stevens.*

• Independently of these considerations, the case shows that the defendant deduced a legal title to himself, as the heir of Cornelius P. Low, who, it was proved, acquired a complete title to the premises under the original patentee ; and, most certainly, she was not concluded by the deed from the Kips, from asserting her title. Without stopping, therefore, to inquire whether, under any circumstances, the lessor of the plaintiff could avail himself of that deed, as an estoppel, which I am clearly of opinion he could not, the defendant never could be estopped by it, as she was a feme covert when it was given.

The evidence of declarations made by the defendant avail nothing, for although parol declarations of tenancy [306]*306have been received, with certain qualifications, parol proof jiag never yet been admitted to destroy pr take away a title. To allow parol evidence to have that effect, would be in-traducing a new and most dangerous species of evidence.

The statute, to prevent frauds and perjuries, which has been considered the magna charla of real property, avoids all estates created by parol, and all declarations of trust, excepting resulting trusts, regarding any lands, tenements, or hereditaments. Yet, in defiance of this statute, we are asked to devest the defendant of what appears to be a complete title to the premises, by her parol declarations. This cannot be listened to.

Judgment for the defendant.

Though a use cannot be limited, on a bargain and sale, to any person but the bargainee; yet, by- a lease and release, a use may be limited to third persons, the possession of the releasee being sufficient to serve such uses: As if A. bargains and sells land to B. for a year, and releases to him; habendum to B., his heirs and assigns, to the use of C. for life, remainder to D. for life, &c.; for the statute intervenes and transfers the possesion to C. the cestui que use. But if the first use is declared to the releasee himself, in fee, (as in the above case,) he is in by the common law, the release operating by enlarging the estate of B. to a fee, and the seisin is no longer open to serve uses to third persons;■tGo. JAtt. 276. a. Butler’s note. Sanders on Uses, 864; 365,366; 367.1

Jackson v. Cary, 16 Johns. 302 (N.Y. Super. Ct. 1819).

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