Shed v. Shed

3 N.H. 432

Opinion

Richardson, C. J.,

delivered the opinion of the court.

The grounds, on which the counsel of the demandants have contended, that the verdict is to be supported, are, that the instrument, under which they claim the land, was delivered to Harrington as an escrow, tobe delivered to the grantees upon the death of the grantor ; provided he should not sooner revoke it; that upon the death of the grantor, he never having revoked the instrument, Harrington delivered it to the grantees as the deed of the grantor ; that this last delivery made the writing the deed of the grantor, from the first delivery ; that the grantor is, therefore, now to be considered as having stood seized of the land, from the first delivery, to his own use during life, and after his decease to the use of the grantees in fee ; and that these uses are now to be considered as executed by the statute of uses, from the first delivery.

And to show, that a writing may be delivered as an escrow to be delivered as the deed of him, who made it, after his death, and that the writing, so delivered, may, when duly delivered after the death of the grantor, be considered as his deed from the first delivery, the ease of Wheelwright vs. Wheelwright, (2 Mass. Rep. 447,) has been cited as an authority in point.

And the demandants rely upon the case of Ruggles vs. Lawson, (13 Johns. 285,) as an authority to show, that an instrument may be thus delivered as an escrow, subject to be revoked by the grantor.

And to establish the proposition, that, notwithstanding the deed seems to purport to convey a freehold in futuro, yet it may operate, according to the intention of the grantor, as a covenant to stand seized to uses, thecase of Wallis vs. Wallis, (4 Mass. Rep. 135,) is cited as directly in point.

If the cases, thus cited, on the part of the demandants, are sound law, they seem to us to establish all the points, which are necessary to be maintained, in order to support the verdict. We shall therefore proceed to examine the objéctions, which are made to the verdict, on the part of the tenants.

It is contended for them, that this instrument did not, and was not intended, to operate as a deed ; but was a testamentary disposition, or devise, and void, not being executed with the formalities required by the statute ; and that to give effect to it, as a deed, would render nugatory the statute relative to the execution of wills.

It may be conceded, that the law requires no particular form of words in a will. In West's case, (Moore 117) which was decided in the reign of Queen Elizabeth, and, of course, before witnesses were essential to the validity of a will, to pass real estate, it was held, that a letter, declaring in what manner the writer intended his real estate should gos was a good devisei It is very probable, that, if this instrument bad been executed in the manner the statute requires, it might have operated as a will to pass the land. It may also be conceded, that if this instrument can be held to pass the land as a deed, the conveyance does, in its operation, very much resemble a devise. The grantees, in fact, had no vested interest, until after the death of the grantor ; and the latter had the sanio control over the deed, during his hie, that he would have had over a will. Yet still, in our opinion, this is not to be considered as a will. In the first place, it is not to be so considered, because it was not intended to operate as a will. It is in the form of a deed. It is called a deed by the grantor. 5 D & E. 95. It is executed as * deed. There is nothing in the instrument, which indicates that the grantor thought of a will. In the next place, it is not to be considered as a will, if it may operate as a deed ; because, as a will, it is void ; and the court is bound, by law, to give the instrument such a construction as will give effect to the intention of the grantor, if it may be legally done.— This is not a matter of discretion. It is a duty of the court. And if this instrument may operate as a deed, it would be contrary to common sense to pronounce it a will, because it may, ⅛ its operation, resemble one, and then declare it void, because it has not the forms of one. 1 N. H. Rep, 64, Chamberlain vs. Crane.—4 Mass. Rep. 135, Wallis vs. Wallis.

But it is said, that this conveyance, if the instrument can operate as a deed, so precisely resembles a devise, that it Will render the provisions of the statute, relative to the execution of wills, nugatory. If this be so, it will certainly deserve consideration, whether this case should not be held to be an exception to the rule we have just stated.

In Order to determine the weight of this argument, it becomes necessary to ascertain in what this resemblance consists, and what were the views of the legislature in those provisions of the statute. The resemblance, on which counsel rely, is, that this instrument, if valid, makes a disposition of the land to take effect after the death of the grantor, he still retaining a power to revoke and alter the grant. In these respects, there is certainly a close resemblance between the disposition of the land, attempted by this grantor, and a devise ; arid if the statute requires, that wills shall be executed in (he presence of three witnesses, because a devise is to tale effect afler the decease of the testator, and because he has a right to revoke and to alter his will, the argument., which counsel draw from this resemblance, is entitled to great weight. But it has always been understood. that it was because wills were often made near the close of life, m old age, in sickness, and in great debility both of body and mind, and because individuals often availed themselves of these circumstances to obtain wills by fraud, and afterwards supported them by perjury, that the statute declared, that H all devises and bequests of any estate in lands, tenements, “ and hereditaments, shall be in writing, and sealed by the “ party devising the same, and signed by him or by some “ person in his or her presence, and by bis or her express u direction, and shall be attested and subscribed, in the “ presence of the said devisor, by three or more credible “ witnesses, or else shall be void and of none effect.” The situation of testators, in many instances, renders fraud and imposition easy and practicable ; the statute therefore, to prevent these, declares, that no devise shall be valid, unless the will be executed in the manner the statute prescribes. It was for these reasons, and with these views, that those provisions were adopted; (Powell on devises 77. — 1 Burrows 420,) and not because devises take effect after death, Or because the devisor has a control over the will, so long as he lives.

Deeds may be, and sometimes are, procured from the aged and infirm, by fraud and imposition. But this has not been so frequently the case, as to induce the legislature to enact any particular provisions to prevent it. Deeds and wills stand on grounds entirely distinct, in this respect. Every man, therefore, who is competent to dispose of land, may convey all his real estate by a deed in any form, which the statute or common law of the state allows ; he may thus grant a present estate, or a future interest; he may thus convey absolutely or conditionally ; and he may do all this without infringing, in the least, upon the policy of the provisions of the statute, relative to the making of wills.

The argument of the counsel, which we are now examining, seems to us to prove too much. For if the conveyance of a future contingent interest, by deed, has a tendency to render nugatory the provisions of the statute in relation to the execution of wills, most surely the conveyance of all a man’s estate by deed, abstlfttely, must have the same tendency, in a much greater degree. For the inducement to procure the conveyance of the whole estate, by fraud, would be greater than it would be to procure a conveyance of part. And we are not aware, that the one could be more easily accomplished by fraud ; or, when accomplished, could be more easily detected, than the other. It seems, therefore, that there are, at least, as strong objections, in this respect, against all conveyances by deed, as there are agftinst the particular conveyance, which was attempted in this case

For these reasons, we are of opinion, that, this objection, which counsel have urged against the conveyance, in this case, is not a sufficient answer to the authorities, which have been cited in support of the deed.

But it is further urged, that the instrument, under which the demandants claim, is void, because it, in fact, attempts to convey a freehold in futuro.

It is by no means clear, that this instrument would be void, if it must be considered as a common law conveyance, and if the reservation must be considered as a reservation of a freehold. For the whole estate is granted in the premises of the deed, and the reservation would be repugnant to the grant. Now, in such a case, it seems always to have been supposed, that the reservation, and not the grant, was void;

But we entertain no doubt, that if this instrument can have any operation, it may take effect as a covenant ⅛ stand seized ; in which case, this objection vanishes altogethér.—4 Mass. Rep, 135, Wallis vs. Wallis.—2 Sanders uses, 90.—4 Taunt. 20, Doe vs. Whittingham-Willes Rep. 692, Roe vs. Tranmarr.

It is insisted, that, if the maker of the writing reserve to himself a control over its ultimate disposition, it cannot be an escrow ; and the case of Hooper vs. Ramsbottom, (6 Taunt. 12,) is cited as establishing this point conclusively. But an attentive examination of that case will shew, that the only point decided was, that where writings are deposited as escrows, by contract between two parties, tobe delivered as deeds upon the payment of the money, they were lodged to secure ; when that money is paid or tendered, the writings become deeds, and the grantee may maintain trover for them : although they have been taken away by the grantor and pledged to a third person. In that case, the writings were deposited by contract, without any condition, except the payment of the money, and the taking of them away was held to be a fraud. But in the case now before us, the writing was intended to effect a mere voluntary disposition of the land ; and why the grantor might not reserve to himself a right to revoke the writing, if he saw fit, does not readily occur to our minds. If he might legally deliver the writing, absolutely to take effect upon his decease, we do not see, why he might not deliver it conditionally, as an escrow, to take effect upon his decease, in case he did not change his mind, and revoke it. Being the absolute owner of the estate, it seems to us, that he had an incontestible right to deliver the instrument absolutely or conditionally, according to his will and pleasure. We know of no principle of law, that could control him in this respect.

Another argument against the validity of this instrument is, that it could not be delivered after the death of the grantor ; because the authority of Harrington, the agent, ceased upon the decease of Shed, the principal. But the answer to this is, that no authority to deliver the writing after Shed’s decease was necessary to give it effect. It was delivered to Harrington to be the deed of the grantor at his decease ; provided he did not revoke it. And when he died without revoking it, the writing became his deed ; whether Harrington delivered it over to the grantees or not. Suppose he had refused to deliver it, can there be a doubt, that the demandants might have maintained trover for the conversion of the deed ? In the case of Hooper vs. Ramsbottom, cited by the counsel of the tenants, trover was maintained for the deeds ; although there was no second delivery. And there are, in the books, many other cases to the same effect. Perkins 139-140.—Shep. T. 59.—3 Coke 35.—5 ditto 85.

Another argument against the validity of this instrument is, that it requires a relation by fiction of law to the first delivery, which ought not to be permitted in this case ; because the struggle is between innocent parties standing on the same ground. It is said, that it would be great injustice to give one parly any advantage by fiction of law. But let. us exam ine a moment the ground, on which these parties respective’ ]y stand. Both are without doubt to be considered as innocent. But what is the nature of their respective claims ? The grantor, Jonathan Shed, had an unquestionable right to give the land to whom he pleased ; and his intention to give the estate to these demandants is equally unquestionable. Mow the demandants rest their claim upon the clear intention of the grantor, and the well settled rule of law, that we are bound to give effect to that intention, if it can in any way be legally done ; while the tenants not only claim the land against this rule of law, but also in opposition to the intention of the grantor. Is this an instance of parties standing on equal ground, in which the principle of relation cannot be applied ? If it be, no one can be imagined, in which the principle may be applied. For the effect of relation is always to give efficacy to a conveyance, which passes the estate from one person to another. - If to give to this instrument its legal effect, by relation, works a wrong to these tenants ; it is a wrong, that every application of the principle of relation works, and nothing more. This case seems to us, to furnish no ground, on which it can be taken from the operation of the general rule.

These are the principal objections, which have been urged against the title of the demandants, in the very able argument in favour of the tenants. We have examined them with much care and attention, but they do not seem to us to shake the authority of the cases, on which the demandants rest their cause. We are of opinion, that the instrument may be considered as the deed of the grantor, from the first delivery ; and that the estate passed to the grantees by way of covenant, to stand seized.

If this deed could be considered only as a common law conveyance, other difficulties might hereafter arise out of it. It is a maxim of the common law, that no estate in fee can be made to cease as to one, and take effect, by way of limitation upon a contingent event, in favour of another person.— In this deed, a fee is given to the grantees with a proviso, that, in case one dies before a certain time, his estate shall go to the other. This is, in truth, limiting an estate upon a ieo. which cannot he clone by a common law conveyance. But it is now settled, that limitations of this description may take effect by way of use ; and they are what are called springing or shifting uses. 1 Sanders on uses, 143; 80 that this deed may legally take elfect, in every particular, .according to the intention of the grantor.

Judgment on the verdict.