The Chancellor.
The facts in this case are few and simple.
Rachel Hunt, the wife of Andrew Hunt, was seised in fee of certain houses and lots of land in the city of New-York.She inherited this real estate from her father, who had acquired it by purchase. She died without issue, on the 29th. of September, 1805, and the plaintiffs in this suit are her heirs at law, being the children of her father’s brother, who was her next immediate heir, and who died subsequently to-her. These children of her uncle would have a clear and unquestionable title to the estate, if the deed executed by Mrs. Hunt, on the day preceding her death, did not interpose to bar them. The case then turns entirely upon the legal operation of that deed.
When Mrs. Hunt made the deed, she lay sick of the yellow fever, and she died the day after she had executed it. The deed secured the use of the property to her, and her husband, during their joint lives, and absolutely to her, in case she survived her husband. It was a deed not intended to affect the estate, until the death of her, or her husband;, and from that circumstance, and from the fact that "the deed-was made when she lay upon her death-bed, we are warranted to conclude, that the deed which she had. the power to make, was a substitute for a will which she had not the power to make. We may, therefore, look upon it as a deed, intended to.supply the place of a will, and made.purposely [528]*528in avoidance of the statute of wills. Whether it be reasonable or useful, to except married, women out of the statute wiU»> may be a question. As a court of justice, however, we have nothing to do with the expediency of the statute, or wiih the inconsistency of the law, which forbids a married woman to make a will, and allows her, even in her last moments, to make a deed. As judges, we are not to make, or unmake the law j we are only to declare it as we find it; and without taking any interest in this family struggle between the claimants, under the deed, and the claimants as heirs, I shall now proceed to examine the deed upon the strict principles of law; and if it will stand that test, we must affirm it; and if it will not, we must reject it.
This deed was intended as a conveyance by bargain and sale, in fee, to James Davidson, upon certain trusts therein declared. But it is agreed, that the deed is not good by way of bargain and sale, for want of a pecuniary consideration. There is no dispute about this rule. If the deed operates at all, it must operate by way of covenant, to stand seised, to uses, and that species of conveyance is good when made upon the consideration of blood, or marriage. Thus, if a man covenants that he will stand seised of land to the use of his child, or wife, or brother, or other relation, the statute of uses transfers the title to the use appointed, and whether any consideration be expressed or not, if the parties be of one blood, the law implies a good one arising from the natural love and affection between the parties. (Lord Bacon on the Use of the Law, p, 151. Goodtitle v. Petto, Sir. 934.)
The deed considered as a covenant to stand seised, is a deed to James Davidson, upon trust, and the character of this grantee creates the great difficulty in the case. The consideration of natural love and affection is founded upon-the ties of blood, or marriage ; and it is conceded, that here, no such tie existed. between Hunt• and his wife, on the one part, and Davidson on the other. Davidson was .what the law calls a stranger, unconnected by blood or marriage; the deed would seem then to fail, as a covenant to stand seised, from the want of a good consideration, in like manner,OS it failed as a. deed of bargain and sale, from the want [529]*529of a money consideration. The object of the deed was to vest the title in Davidson, as a trustee for the family, and the question is, whether this deed, in any view of it, can execute that intention, consistently with principles of law. One of the earliest cases on this subject, of a covenant to stand seised, in which the covenant was with a stranger, is Lord Paget’s case, in 31 and 32'Eliz. (1 Leon. 195. TCo. 154. a.) Lord Paget there covenanted with Trentham and ■others, that-he would stand seised to their use, for the term of 24 years, and then to the use of his son in tail ; and it was held, that the term was void, because there was nb consideration to raise an use, as T. and others were strangers to the consideration of blood.
The same point was decided in Wiseman’s -case, in the 27thof Eliz. (2 Co. 15.) The party there, in consideration, that his lands should continue in his family name andblood, and for other good considerations, Covenanted that’he would stand seized to the use of himself and of his heirs male of his body, and after, to the use of his brothers in tail,'and for default of such issue, to the use of the queen, her heirs and successors. In this case the Court of Common Pleas resolved, that no use was raised to the queen, because there was no pecuniary consideration, and the consideration of blood did not apply to the queen.
We have here two strong and ancient cases 'bowing that no use can be raised ón a covenant to stand seized in favour of a stranger not connected by blood. And with what firmness did the Court of C. B. maintain the rule, even under the reign of Elizabeth, though the doctrine-went to defeats use raised in favour of that arbitrary princess ?
But those two cases do not come closely to the point now under discussion. The stranger in those cases was intended, to take a beneficial interest under the conveyance, upon his o7on account, whereas, in this case, Davidson was to take only as a trustee for the family. The next case, then, in the- order of time is, Smith v. Ridley, (Cro. Car. 529. Wm. Jones, 418. 2 Roll. Abr. 783. pi. 4. S. C.) which was in the 14th of Charles I., and which-does not comequite up, in principle, to the case before us. The case was this : a man by indenture between him and four others, (of whom onewas [530]*530íns brother, and the other three were strangers,) covenanted, in consideration of love and affection for his wife and chib dren, to stand seised to the use of himself for life, and then after his death to the use of his wife for life, and then to the use 0f four covenantees in fee,.in trust, that they should apply the rents, and profits to raise portions for his younger children, and then to the use of his son and the heirs of his body. After the death of the grantor, the three covenantees, who were strangers, sold the land, by deed, to the cove-' ■nantee, who was the brother, to the intent "that he* should perform the trusts, and the question was, whether the covenant to stand seised was valid, seeing that all the covenantees, except one, were strangers in blood to the covenantor. This question was argued several times. at the bar, and the . Court of K. B decided that the uses.were well raised, and vested solely in the covenantee, who was a brother, because he was of the blood; but that they were not well vested in the other covenantees, and no estate passed to them be» cause they were strangers, though the estate was limited to them in trust to raise portions for other persons. s
This case is cited by Baron Gilbert, in his Treatise on Uses, as a good authority; and Mr. Sugden,
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The Chancellor.
The facts in this case are few and simple.
Rachel Hunt, the wife of Andrew Hunt, was seised in fee of certain houses and lots of land in the city of New-York.She inherited this real estate from her father, who had acquired it by purchase. She died without issue, on the 29th. of September, 1805, and the plaintiffs in this suit are her heirs at law, being the children of her father’s brother, who was her next immediate heir, and who died subsequently to-her. These children of her uncle would have a clear and unquestionable title to the estate, if the deed executed by Mrs. Hunt, on the day preceding her death, did not interpose to bar them. The case then turns entirely upon the legal operation of that deed.
When Mrs. Hunt made the deed, she lay sick of the yellow fever, and she died the day after she had executed it. The deed secured the use of the property to her, and her husband, during their joint lives, and absolutely to her, in case she survived her husband. It was a deed not intended to affect the estate, until the death of her, or her husband;, and from that circumstance, and from the fact that "the deed-was made when she lay upon her death-bed, we are warranted to conclude, that the deed which she had. the power to make, was a substitute for a will which she had not the power to make. We may, therefore, look upon it as a deed, intended to.supply the place of a will, and made.purposely [528]*528in avoidance of the statute of wills. Whether it be reasonable or useful, to except married, women out of the statute wiU»> may be a question. As a court of justice, however, we have nothing to do with the expediency of the statute, or wiih the inconsistency of the law, which forbids a married woman to make a will, and allows her, even in her last moments, to make a deed. As judges, we are not to make, or unmake the law j we are only to declare it as we find it; and without taking any interest in this family struggle between the claimants, under the deed, and the claimants as heirs, I shall now proceed to examine the deed upon the strict principles of law; and if it will stand that test, we must affirm it; and if it will not, we must reject it.
This deed was intended as a conveyance by bargain and sale, in fee, to James Davidson, upon certain trusts therein declared. But it is agreed, that the deed is not good by way of bargain and sale, for want of a pecuniary consideration. There is no dispute about this rule. If the deed operates at all, it must operate by way of covenant, to stand seised, to uses, and that species of conveyance is good when made upon the consideration of blood, or marriage. Thus, if a man covenants that he will stand seised of land to the use of his child, or wife, or brother, or other relation, the statute of uses transfers the title to the use appointed, and whether any consideration be expressed or not, if the parties be of one blood, the law implies a good one arising from the natural love and affection between the parties. (Lord Bacon on the Use of the Law, p, 151. Goodtitle v. Petto, Sir. 934.)
The deed considered as a covenant to stand seised, is a deed to James Davidson, upon trust, and the character of this grantee creates the great difficulty in the case. The consideration of natural love and affection is founded upon-the ties of blood, or marriage ; and it is conceded, that here, no such tie existed. between Hunt• and his wife, on the one part, and Davidson on the other. Davidson was .what the law calls a stranger, unconnected by blood or marriage; the deed would seem then to fail, as a covenant to stand seised, from the want of a good consideration, in like manner,OS it failed as a. deed of bargain and sale, from the want [529]*529of a money consideration. The object of the deed was to vest the title in Davidson, as a trustee for the family, and the question is, whether this deed, in any view of it, can execute that intention, consistently with principles of law. One of the earliest cases on this subject, of a covenant to stand seised, in which the covenant was with a stranger, is Lord Paget’s case, in 31 and 32'Eliz. (1 Leon. 195. TCo. 154. a.) Lord Paget there covenanted with Trentham and ■others, that-he would stand seised to their use, for the term of 24 years, and then to the use of his son in tail ; and it was held, that the term was void, because there was nb consideration to raise an use, as T. and others were strangers to the consideration of blood.
The same point was decided in Wiseman’s -case, in the 27thof Eliz. (2 Co. 15.) The party there, in consideration, that his lands should continue in his family name andblood, and for other good considerations, Covenanted that’he would stand seized to the use of himself and of his heirs male of his body, and after, to the use of his brothers in tail,'and for default of such issue, to the use of the queen, her heirs and successors. In this case the Court of Common Pleas resolved, that no use was raised to the queen, because there was no pecuniary consideration, and the consideration of blood did not apply to the queen.
We have here two strong and ancient cases 'bowing that no use can be raised ón a covenant to stand seized in favour of a stranger not connected by blood. And with what firmness did the Court of C. B. maintain the rule, even under the reign of Elizabeth, though the doctrine-went to defeats use raised in favour of that arbitrary princess ?
But those two cases do not come closely to the point now under discussion. The stranger in those cases was intended, to take a beneficial interest under the conveyance, upon his o7on account, whereas, in this case, Davidson was to take only as a trustee for the family. The next case, then, in the- order of time is, Smith v. Ridley, (Cro. Car. 529. Wm. Jones, 418. 2 Roll. Abr. 783. pi. 4. S. C.) which was in the 14th of Charles I., and which-does not comequite up, in principle, to the case before us. The case was this : a man by indenture between him and four others, (of whom onewas [530]*530íns brother, and the other three were strangers,) covenanted, in consideration of love and affection for his wife and chib dren, to stand seised to the use of himself for life, and then after his death to the use of his wife for life, and then to the use 0f four covenantees in fee,.in trust, that they should apply the rents, and profits to raise portions for his younger children, and then to the use of his son and the heirs of his body. After the death of the grantor, the three covenantees, who were strangers, sold the land, by deed, to the cove-' ■nantee, who was the brother, to the intent "that he* should perform the trusts, and the question was, whether the covenant to stand seised was valid, seeing that all the covenantees, except one, were strangers in blood to the covenantor. This question was argued several times. at the bar, and the . Court of K. B decided that the uses.were well raised, and vested solely in the covenantee, who was a brother, because he was of the blood; but that they were not well vested in the other covenantees, and no estate passed to them be» cause they were strangers, though the estate was limited to them in trust to raise portions for other persons. s
This case is cited by Baron Gilbert, in his Treatise on Uses, as a good authority; and Mr. Sugden, in his late and valuable edition of that work,. (Gilbert on Uses, by Sugden, p. 247; note,) says, that if the covenantees had all been strangers, no use would have arisen, “ although limited for the benefit of the blood or family, of the covenantor, and not for collateral purposes.”
This case appears to me to be in point. None of those strangers could take, even in trust for the children of the covenantor; and had not one of them,, fortunately, been a brother, no use could have arisen. In the present, case, here is a regular conveyance, by bargain and sale, to James Davidson, in fee, in trust for family purposes. The deed is void as a bargain and sale, and if we construe it as a covenant to stand seised, it is then a covenant with a stranger to stand seised to the use of the stranger, in trust, that the stranger shall hold and apply the land for the uses der clared in the deed. But the misfortune is, that Davidson the stranger, stands here alone, and by himself. Here is no brother to redeem the deed. According to the decision- in [531]*531Cro. Car., and which appears never to have been questioned, the use fails for want of a covenantee, who is a relation by blood or marriage. In the opinion given by the Supreme Court, it is said that Davidson was merely made use of as the conduit or instrument, through which the beneficial interest was to flow to others. But that was also the case in Smith v. Risley. The covenantees there were only to take in trust for the family of the covenantor. They were the mere conduits or instruments, and yet the case says, those who are strangers, and not connected by blood, cannot be such instruments. Why the courts originally established so scrupulous a rule, it is not for me to say. 1 can only say, that a covenant to stand seised is a peculiar species of conveyance, confined entirely to family connections, and founded on the tender consideration of blood or marriage. No use can be raised for any purpose, in favour of a person not within the influence of that consideration. There is no cold, selfish, calculating motive to contaminate the contract, nor is the conveyance to be profaned by the footstep of a stranger.
The case of Sympson v. Keyles, decided in 1657, was cited in Foster v. Foster, (T. Raym. 49.) and it contains the same doctrine. A father had by deed given land to his son, in consideration of affection, but livery was not made, and it was held good as a covenant to stand seised. But “ a difference was taken, where the father gives to a stranger, to the use of himself, remainder over; there no use arises ; but when the conveyance is to the party himself, there the use; will arise.”
The next case in succession, is that of Hore v. Dix, (1 Sid. 25.) of which we have heard so much upon the argument. That case was decided in the C. B. very early in the reign of Charles II., One J. P , by indenture between him and T., his son, of the one part, and two strangers of the other part, in consideration of natural love and affection which he had to his son T., granted and enfeoffed the two strangers of lands, to the use of himself for life, remainder to his son T. and the heirs male of his body, with remainders over. He also covenanted with the two strangers that they should enjoy the land to the uses in the deed spe[532]*532cified. The deed was not duly made so as to operate as a feoffment, and the question was, whether the son took undes , , ’. , 1 • , 1 the.deed as a covenant to stand seised ¿he court decided,. that no use was raised by the deed, seeing there was no . ..... ° . consideration to raise it, it being.a deed to strangers. 1 bis
is also a case in point against the deed before us, for the deed was to the two strangers for the entire use of the covenantor and his son, and they took no beneficial interest, any more than Davidson, in the present cas.e.
, The next case that is material to this point, is Jackson v. Jackson, in the 4 G. II. (Fitzg. 146 ) in which A., being seised of lands, conveyed the same by feoffment, to feoffees, to the use of himself for years, remainder to his wife for life, remainder to his sons in tail. The deed was defective for want of livery. The counsel for the defendant said, that the deed could not have the effect of a covenant to stand seised ; for the trustees being strangers in blood to the grant- or, no use- could arise to them. And the Lord Chancellor . (King.) said, he was of opinion the deed could not enure as a covenant to stand seised, for the same reason. A similar case arose in Chancery, at the very same term, in Nugent v. Hancock, (22 Viner, 196. pl. 13.) A., by voluntary deed, covenanted wi-ih B. and C., who were strangers, to stand seised to certain uses, and upon certain trusts. It was objected, that the plaintiff, who claimed as a grandson, could have no benefit under the settlement, for that the trustees being strangers to the consideration of blood, no uses arise to them, according, to Lord Paget'1 s case, and of this opinion was the Lord Chancellor. It was then suggested, that there might be a difference,, where the estate,, trust, or use in the trustees, was limited for the benefit of the blood and family of the covenantor, and where for other purposes; but no such distinction was allowed, and the bill was dismissed. ’
We have thus traced, a series of cases, from the 31 Eliz. down to the 4 of Geo, II. all speaking the same general language, and declaring, that a stranger, whether he takes any beneficial interest or not, cannot be a party to a covenant to stand seised, because it is a family conveyance, and is founded on the consideration of family affection..
[533]*533We will next examine, and see whether there he any cases ‘to destroy, or essentially to weaken the force of these au- " * * thorilies.
The first case to be noticed, is Thorne v. Thorne,(1 Vern. 141.) in 1682, in which a man had, by indenture, granted, enfeoffed, and confirmed his land unto trustees, to stand seised to the use of his three brothers. But the deed not being duly executed as a feoffment, the Lord Keeper decreed, without any difficulty, that it should work as a covenant to stand seised.
This is all we have of the case, and it is a very brief note. It does not appear, that the question as to the competency of the trustees, was raised, nor does it appear, whether or not they were strangers. . They might have been persons embraced by the consideration of blood. The case, therefore, as it stands, proves nothing, one wSy or the other, as to the point is question. And can we suppose that the Lord Keeper would not have paused, at least, had these trustees been strangers, and had the point been raised, when we consider the decision in Hore and Dix, made in the same reign, by no less a judge and master of the doctrine of conveyancing, than Sir Orlando Bridgman, the Chief Iustice of the C. B. ? It is further to be observed, that in the two subsequent cases in Chancery by Lord Chancellor King, no reference is made to this decision; yet those two cases are in direct opposition to what is supposed by the counsel for the defendants in error, to be the doctrine in this case. It is most apparent therefore, that this case of Thorne v. Thorne, is not, and has never been regarded as any authority in favour of a co-' venant to stand seised to the use of a stranger.
But there are two cases later than any which we have been reviewing, and decided by Ch. J. Willes, in 1755 and 1757, which are supposed to affect the authority of the decisions in favour of the plaintiff.
In Doe v. Salkeld, (Willes’ Rep. 673.) the lessors of the plaintiff, claimed under a deed of settlement made between A. of the first part, B, of the second part, and C. of the third part. By this deed, A., in consideration of a marriage then intended between him and B., and for a jointure and provision for her, granted and released to B. and C. certain [534]*534lands to hold to the use of B. for life, and in bar of her dower, then to the heirs of her body, and then to his own heirs. The marriage took effect, and A. and B. died, leaving an only child, and the deed was held to be a good covenant to stand seised. Lord Ch. J. Willes, in order to take the case out of that of Hore v. Dix, said, that the conveyance here was not to a stranger, and it was a grant in consideration of marriage. Who C., the person associated with B- in the deed, as one of the covenantees, was, does not appear. Being of the same name, it was probably a brother of B : at any rate, it is sufficient for the present purpose, that the court say, that the conveyance there was not to a strangers And if C. had been a stranger, yet the competency of B.. the intended wife, was . enough, according to the case of Smith V- Risley. If any one covenantee be of the family, it is sufficient.
The other case cited from Willes’ Reports, is Roe v. Trimmer. (Wtiles'* Rep. 682. 2 Wils. 75. S. C.) The question there was, whether a lease and release, being made to' convey an estate in tail, to commence in futuro, could operate as a conveyance at common law, and the court held ifcould not; but they were of opinion it could take effect as a covenant to stand seised to uses. The lease and release here, were from A. to his brother B. in fee tail, in consideration of natural love, and after his own death, to have, and to hold to his brother, and the heirs of his body, and after their decease, to the eldest son of his beloved uncle.
This case has nothing to do with the present one, for here all the parties to the deed were of the same family, and of one blood. So they were in the cases of Samon v. Jones, (2 Vent. 318.) in Daw v. Newborough, (Comyn's Rep. 242. Gilbert on Uses, by Sugden, p. 253, 254. S. C.) and Crossing v. Scudamore, (1 Vent. 137.) which have been supposed to have some bearing upon the point, but which have no application to the question whether the covenantee can be a stranger, in a deed of covenant to stand seised to uses. After the fullest research which I have been able to give, I cannot find a single case in which it has ever been decided, that these family uses can arise on a covenant, or grant to a stranger, whether he is to take beneficially, or only as a [535]*535mere trustee for others. All the cases I have produced from the reign of Elizabeth down, and which deny that a stranger can be a party to such a conveyance, remain uncon tradicted. If there be even any dicta in favour of the com-potency of a stranger to take, they have been overruled. Thus, in Plozvd. 307. b. it was s.aid, by one of the counsel, that a use in a particular estate might be raised, and supported in favour of a stranger, when there was a remainder over in favour of the family. But this was denied to be law by a subsequent dictum of counsel, in 4 Leon. 137.; and it was exploded in Lord Paget's case.
The intention of the deed, in the present case, was, that the estate in law should pass to Davidson, and that the uses and trusts in favour of the husband and mother should arise out of the estate so vested in him. But no estate vested, whether we consider the deed as a bargain and sale, or as a covenant to stand seised, from the want of a pecuniary consideration in the one case, and of the consideration of blood or marriage in the other. I should be willing to lend a helping band to this deed, if I could find any law to warrant it; but I have found none, and I am obliged to say, that the heirs are entitled by law to the land. Though the rule of law may appear to be a formal and technical one, yet a great many of the rules of evidence are of the same stamp; and the courts must adhere to them, or they will destroy landmarks, render the transmission of property uncertain, and throw every thing into confusion. We have no more authority to change the rule of law, in order to give effect to a covenant to stand seised, than we would have to give effect to the common deed of bargain and sale, without any consideration in it, or to give effect to a deed of feoffment without livery, or to a bond without a seal, or to a will of land which has not three witnesses, or to make a note negotiable without negotiable words in it. All these, and numerous other cases, depend upon fixed rules not within the discretion of the courts; and it would produce great mischief, if not great injustice, if any of these rules were to be subverted retrospectively.
Perhaps, the husband, and especially the mother, may have more pressing claims than uncles and cousinsbut [536]*536the fixed laws of inheritance which have prevailed from time immemorial, speak a different language. Real property never can, in any possible case, ascend, by inheritance, to the mother; nor will (he law allow the husband to be the wife’s heir, as to her lands and it only gives him a life estate, as tenant by the curtesy. Suppose Mrs. Hunt had left children, by a former husband, and the second husband had procured such a deed as this, from his wife, in her last sickness ; it is probable that every one would have been struck with the enormity of the ca=e, and we should gladly have seized upon this settled rule of law to have restored the land to the children. The plaintiffs, in (he present case, are not such interesting heirs as one’s own offspring, but still they are the heirs at law, and they are entitled to ask of us to give them their right, according to the established, uniform, and unbending rules of law. If husbands can procure the conveyance of property from their wives, by honest and fair means, let them do so and welcome, but they cannot expect that the courts will help them, as against the heirs, in their precipitation and blunders, and go so far as to suspend or change the doctrine of alienation by deed.
I am, accordingly, of opinion, that the case is with the plaintiffs, and that the judgment of the Supreme Court ought to be reversed.
March 25
A majority of the court
And it is further ordered and adjudged, that the defendants in error pay to the plaintiff in error one hundred and seventy seven dollars and fifty-five cents, for his costs ■and charges by him laid out and expended in the Supreme [537]*537Court, &c. as well as in and about the prosecution of his writ of error in this court, and that the record be remit- . ted) u£C*
Judgment of reversal.
For reversing, 14: for affirming, 5.