Jackson's Lessee v. Hasty & Cannon

1 Del. Cas. 286, 1800 Del. LEXIS 15

• Court: Delaware Court of Common Pleas
• Decided: November 27, 1800
• Status: Published

Opinion

The question therefore in this cause is whether the adjudication of the Orphans’ Court and acceptance by plaintiff passes the legal estate to him, when he had only a conveyance bond from the person legally entitled to the acceptance. It has not been contended that an alienation bond is evidence of legal title in ejectment; for this would be to supersede the necessity of the Act for acknowledgment of deeds, and of that for conveyances by executors and administrators, and of decrees in Chancery for specific performance, and to do away the natural and legal difference between an absolute conveyance and a contract only to convey. If the Act of Assembly in [1 Del.Laws] 292, which declares the effect of an adjudication, had also authorized the Orphans’ Court to adjudge to an assignee of the person who had the right of acceptance, there would have been no room to question the plaintiff’s title. There is no doubt that an adjudication and acceptance legally made under either Act is a valid species of conveyance, and by the Act [1 Del.Laws] 292, as no person but an heir could accept, the Act, to declare the adjudication effectual, necessarily transfers the right that had been in intestate to the acceptor; but the latter Act in [1 Del.Laws] 418, which directs an adjudication to the assignee, does not declare the effect of such acceptance, nor is it necessary that the provision of the first Act should be extended in this respect to the latter one, for the acceptance by assignee, being a legal acceptance, is also a legal conveyance. Such acceptance by an assignee who has a legal title will pass the legal estate of intestate, or equitable, if intestate had no other; but if the assignee has an equitable title only, the acceptance will make his title to the whole the same that it was for part.

If we suppose the effect more extensive it will follow that assignor’s residue of estate, or legal estate which he had not parted with, is taken from him without and beyond his contract. Suppose the assignor had not intended to convey, because of fraud on assignee’s part of the contract; as the Act requires no notice, court is not bound to give it, and the party is not concluded by it. The adjudication would in such case have all the effect of a decree for specific performance without the knowledge of the party. It has been said the term “assignee” in the latter Act was made in contemplation of merely equitable titles; but it does not follow that the legislature intended to have given the assignee a better title to the whole than he had obtained for part. “Assigns” is a comprehensive term; as applied to realty it extends to the heirs and their assignees, to assignees of assignees, and to heirs of assignees, Co.Litt. 384b. It embraces feoffees, donees, bargainees, and devisees; it extends to legal and equitable, real and personal rights. It was therefore the fittest expression; and the Orphans’ Courts are prevented, on the application of assignees, all inquiry as to the validity of his title, their adjudication being only coextensive with it and without prejudice. If we suppose the Orphans’ Court authorized in such case to inquire into the adversary claims of assignor and assignee, and that therefore their adjudication passed the estate which had been in intestate, curing all defects in the conveyance from assignor to assignee, as is contended in this case, then their decision would be final, unless appealed from, and Chancery could not interfere. But the very term “assigns,” as well as the not requiring notice to the parties interested, evince that the adjudication, although a legal mode of conveyance, cured no defects; in the same manner as a sheriff’s deed has been adjudged to do. The execution of a power takes its validity from the instrument that gives it, which is the bond in this case, though the Orphans’ Court are appointed by law to execute it; and if the analogy to powers is admitted, [were] a legal estate given by the court, where only an equitable was authorized, the execution of their power would be void for excess. The case of Bail v. McCullough was not that of an assignee, but was only the acceptance of an husband with the wife’s assent. If this had been denied him, it would have been a denial of the wife’s right, for her issue probably may inherit, and the husband pays the valuation.