Saffold, C. J.
The action was trespass to try titles, instituted by Martha Augustin, an infant, by. hen next friend. The object was to recover of Simmons,the premises in dispute, and damages for the detention.
A recovery was had accordingly, with a view to reverse which, Simmons prosecutes this writ of error.
The bill of exceptions shews that the claim in favor of Martha Augustin, was derived from a deed of [88]*88gift, executed by her grandfather, William J. August tin, on the first of September, 1824, whereby the land now in question, with other parcels, (which others have, by partition been allotted to another and this said Martha’s, deceased father,) were conveyed, in an informal manner, as follows:
“ Know all men by these presents, that I, William J. Augustin, of,” &c. “for, and in consideration of, the natural love and affection which I bear to my sons, Henry W. and Thomas J. Augustin, as well as for the further consideration of one pepper corn, to me in hand paid,” &c. “ have given and granted, and by these presents do give and grant, unto the said Henry W- and Thomas J., and the legal heirs of their bodies forever, after the demise of the said William J. Also, that the following lands to be described, and to be equally divided between the said Henry W. and Thomas J., and are in no wise to be made subject to any debts, contracts and conveyances that the said Henry W. and Thomas J. may make to any person or persons; as the true intent and meaning of this deed is, that the lands to be described are to remain with them and their legal heirs forever.” (After here describing the land, the deed proceeds:) “To have and to hold the said described land unto them above mentioned, and in the manner above described. In testimony,” &c.
The plaintiff below further proved the death of W'm. J. and of his son Thomas J., and that she was the sole child of the latter. The defendant below, then produced a deed, made to John Ezell, by said Thomas J., and a regular conveyance, from Ezell, to himself.
[89]*89Upon this evidence, the court charged the jury, that the deed of William J. Augustin, was such as was permitted by the laws of the State : and that, under said deed, Thomas J. Augustin, after the demise of his father, took a life estate only, in the said estateand that he had no right to sell or convey said premises, for a greater period. — That no longer title than the life estate of the said Augus-tin, passed to said Ezell and Simmons, under their purchase of said premises, from Thomas J. Augus-tin. — That the infant child of the said Thomas J; Augustin, was entitled to said premises; and, that, under the law, arising from the deed of the said William J. Augustin, the jury must return their verdict for the plaintiff, if satisfied of the heirship^ and identity of the land in question.
On the trial, it was also proved, that Henry W¡ Augustin was still in life, and had children living. The counsel for the defendant requested the Court to charge the jury, that the plaintiff, if entitled to recover the land in question, was only entitled joint ly with the said Henry, or his chiidten.
The plaintiff having produced an order of the County Court, appointing comrnissionersj to make partition of said land, and also, produced, from the record, the return made by said commissioners, and proved, that the land, described in the plaintiff’s declaration,. was allotted to the said Thomas J. Augus-tin, in his life-time, the court refused to charge, as requested : and, charged the jury, that it was not necessary, that the said Henry, or his children, should join in the suit — no objection being made to the regularity of the partition.
[90]*90Some of the witnesses testified that the plaintiff below, was not in being, at the ttme of her father’s death — others, that she was previously born. On. this contrariety of testimony, the defendant’s counsel requested the Court; to charge the jury, that if they believed the plaintiff was not in being, St the time of the death of the said Thomas J., her father, that, then, the lands in contest, reverted to the right heirs of the donor — which charge the Court refused, and charged, that, whether the plaintiff was in being, at the death of Thomas J., or was born afterwards, her rights were the same, and she was equally entitled, under the deed of her grand-father — to all which the defendant excepted.
It is here assigned as cause of error — that the Circuit judge instructed the jury, as above stated, and refused to charge them, in the different manner, as requested.
Haying reference to the course of the argument, and the principles of law, necessarily involved in the controversy, the following questions are believed to embrace the entire merits of the case.
First — Was-it competent for William J. Augus-tin to execute a valid conveyance of a free-hold, to his sons, in consideration of natural love and affection, without livery of seizen; but, under a provision, that the deed should take effect, not in prcesenti, but, after the death of the grantor : if so, is this deed sufficient for the purpose ?
Second — Do the expressions of the deed, import an estate tail — such as the statute of this State declares to be an absolute fee: or, are the limitations, authorised by the statute, sufficiently expressed, to [91]*91render them valid, as such, and deny the grantees ' the power of alienation?
1. So far as seizen of the premises, at the time of the grant, may be deemed material, it may well be assumed, that the grantor was then in the quiet enjoyment. The contrary does not appear: no opinion of the Court is shewn to have been expressed, or requested, or any question raised, on the trial, respecting it. We cannot, therefore, presume any such deficiency of proof.
The language of the deed, viz: “ Have given and granted, and by these presents, do give and grant, unto the said' Henry W. and Thomas J., and the legal heirs of their bodies, forever, after the demise of the said William J.f &c. is believed sufficiently to imply a reservation of the premises to the use of himself, the said William J. during, his life, and until the grant should take effect in favor of the grantees. The force and effect of the words “after the demise of the said Wm. J.” is the same as any more formal reservation of this interest would be.
In Jackson vs. Swart,
In Bedell’s case,a the facts were that B was seized, and he and his wife, in consideration of the natural love and affection which he had to his sons, and for their better preferment and advancement, convenanted to stand seized of the premises conveyed to the use of himself for life, and after his decease to the use of his wife for life; and, after their death, of one moiety to the use of one son, and of the other moiety to the use of the other son in tail. The question was, whether any use arose to the wife; and it was resolved, that if a man covenant to stand seized to the use of his wife, son or cousin, it- shall raise a use without any express words of consideration; and upon writ of error the judgment was affirmed, by all the judges of the Common Pleas and Barons of the Exche-
The case of Goodlitle vs. Pelts,a is to the same efi-[93]*93feet; and in Paget's case,b it was decided, that in case, a use will arise to those who are within the consideration, though not to those who are strangers to it.c
.... Sergeant Williams, in his notes on Saunders, (Chester vs. Willan,)d, sustains the authority of Co. Litt.e that the word “grant” is of general extent, and may amount to a grant, feoffment, gift, lease, release, confirmation, or surrender; and that it is in the election of the party to use it to which ever of these purposes he pleases. He cites the case of Crossing vs. Scudamore,f where a father seized in fee, made a deed to his daughter, enrolled within six months, by which, in consideration of natural love, augmentation of her portion,-and her preferment in marriage, and other good and valuable considerations, he gave, granted, bargained and sold, aliened, enfeoffed and confirmed, unto the daughter and her heirs, the said lands; and there was a covenant that after due execution, &c., she should quietly enjoy, and also a clause of warranty, but there was no money paid, or other consideration, but what was expressed in the deed. It was held that though the deed could not insure a bargain and sale, no money having passed between the parties; yet it should operate as a covenant to stand seized. He cites various other cases in support of the same principle; and maintains that where the intent of the parties is to pass the estate, the method of doing it ought to be subservient to that end; and that though the intent of the grantor is to be regarded as to what estate is to pass, and to whom, yet it is not tobe regarded as to the manner of passing it, for of that he is supposed to be ignorant. (See Hob. 277—Earl of Clameckard’s case.g)
[94]*94That it was the intention of the grantor, in the case under consideration, to convey the premises to his sons and their heirs, generally or specially, to be enjoyed after his death, reserving the use of the same to himself, during his life; and, for this period, that he would remain in possession — in other words, would stand siezed for these purposes, I think is sufficiently implied by the expressions of the deed.— Then, admitting the common law doctrine, which is very clear as a general rule, that an estate of freehold cannot be created to commence in futuro', but that it .must take effect presently, either in possession or remainder; and this for the reason that no such es-pass without livery of seizen, which must, operate immediately or not at all :a yet, if, during the interval, according to the import of the deed, the possession is to be enjoyed by the grantor, or any other, under a covenant to stand seized to the present use of himself; and subsequent use of the grantee, or for the entire use of the latter, the object of the law is satisfied. In such case, the inconsistency, against which this principle of law was intended to guard, the granting an estate to commence in future, by a conveyance importing an immediate possession, would not arise : the possesion would be consistent with the terms and object of the deed. As a further answer to this objection, our statute of'uses, similar to the English statute of Henry VIII. may be cited. It provides that “ in all cases by deed of bargain and sale, or by deed of lease and release, or by covenant to stand seized to use, or by deed operating by way of covenant to stand seized to use, the possession of the bargainor or releasor, or covenantor, shall be deemed hereto[95]*95fore to have been, and hereafter to be, transferred to' the bargainee, releasee, or person entitled to the use of the estate, or interest which such person hath, or shall have, in the use, as perfectly as if such bar-gainee,” &c., “ had been enfeoffed with livery of sei-zen of the lands intended to be conveyed by said deed, or covenant.”
In this case, I think, it may, also, be assumed, that the possession of the sons immediately on the execution of the deed, .was not inferior to, or materially different in principle, from that of a remaindér man, while the possession of his free-hold is' held by a tenant of the particular estate.
Hence, I conclude, it was competent for the grant- or to convey the free-hold to his sons and their heirs,reserving to himself a life interest in the premises: and, that the terms of this deed are sufficient for the purpose.
2. Then, the second question arises, relating to-the effect, under the statute, of the limitation imported by the terms of the deed.
The language of the statute is, that “ every estate in lands or slaves, which now is, or shall hereafter be created an estate in fee tail, shall, from henceforth, be an estate in fee simple; and the same shall be discharged of the conditions annexed thereto, by the common law, restraining alienation before the do-nee shall have issue, so that the donee, or person in whom the conditional fee is vested, or shall vest, shall have the same power over the said estates, as if they were pure and absolute fees. Provided, that any person may make a conveyance or demise of lands, to a succession of donees, then living, and the heir or heirs of the body of the remainder [96]*96man; and, in default thereof, to the right heirs of the donor, in fee simple.”
A conditional fee, at common law, was a fee restrained to some particular heirs, exclusive of others: “as, to the heirs of a man’s body,” by which only, his lineal descendants are admitted, in exclusion of collateral heirs, &c. Under the common law merely, and before the statute de donis, the construction which prevailed, in relation to such conditional fees, was, that, on the birth of issue, such as contemplated by the grant, the condition was performed and discharged, and the estate was supposed to become absolute in tbe grantee — so far, at least, as to enable him, if he chose, to alien it, and, thereby bar, not only his oun issue, but also the donor, of his inter-est in the reversion, and to forfeit or incumber it.— To prevent which, the statute of 2 Westm. called the statute de donis, was enacted which secured to such conveyances, additional virtue.
The English Judges so construed it as to divide the estate into two parts, leaving in the donee a new kind of particular estate, which they denominated a fee tail; and, investing, in the donor, the ultimate fee simple, expectant, on .the failure of issue — which was called a reversion.
This was regarded as a residue of the fee, left in the grantor, to be enjoyed by the implied terms of the grant, at any indefinite period, when the estate created by it should expire, by the happening of the event. The statute de donis was admitted to have the effect to protect the interest of the heirs, and also of. the grantor, until the titles become so embarrassed from the difficulty in tracing the lines of lineal descent, and the restraints on alienation, together [97]*97with the liability of the estates tail, to revert to the grantor, for any indefinite failure of lineal heirs, that methods were invented, and in most cases resorted to, of unfettering the estates, and subjecting them to alienation, even before issue born. This was done by fines, common recoveries, and the like. The prevention of similar complexity and uncertainty, in. land titles, within this State, was, doubtless, a main inducement to the passage of the act already quoted, abolishing and prohibiting estates tail.
Now to determine whether the estate created by the deed of William J. A. falls within the description, or definition given of an estate tail, let reference be had to such parts of the deed as must determine its true character in this respect. As the substance of so much thereof, (disregarding its informality, and transposing some of the sentences,) I give the following : That said Williám J. gave and granted unto his two sons, Henry W. and Thomas 3., and the legal heirs of their bodies, forever, to be' enjoyed after the death of the said William J., the lands described— to be equally divided between them : the same to be, in no wise subject to any debts, conveyances or other contracts, that they should make; as the true intent and meaning of the deed was, that said lands should remain with them and their legal heirs, forever. To have and to hold the same, in manner aforesaid.
If, instead of .the words, in the premises of the deed, following Henry W. and Thomas J., “"and the legal heirs of their bodies,” it had read, and their heirs, or their legal heirs, all other parts of the deed being as it is, there could have been no question but [98]*98that the absolute fee was conveyed to the sons: the subsequent parts would have, been perfectly consistent with the premises, in respect to the grantees and the estate granted ; and, by the principles, even, of the common law, the language would have been entirely appropriate, for the conveyance of the unconditional estate. But, the insertion of the words, “heirs of their bodies,” according to their common law import, would necessarily operate as a limitation of the estate, to the grantee and his lineal descendants, to be enjoyed, in succession, by each, during their natural lives, subject to reversion, if, at any time there should be a failure of such issue. The subsequent designation of said two grantees, and their legal heirs, is., not necessarily inconsistent with the former, as the words “legal heirs,” are no less applicable to heirs of the body, than any others.
It is, therefore, unnecessary to examine the effect of a repugnance in this respect, between different parts of a deed. The conclusion appears to me unavoidable, that the effect of this deed, according to the common law and the statute of Westminster, would be to create an estate tail.
This proposition, however, I do not understand to be particularly contested, in argument. But, on the part of the defendant in error, it is insisted, that, though the statute was intended to convert existing estates tail into absolute fees; it could not have been intended to prevent the subsequent creation of all kinds of estates tail.
The case is supposed, of a grant to A, and the heirs of his body, and, in default thereof, to the right heirs of the grantor. This, it is said, would be as pure a fee tail, as any other that could be created; [99]*99and, one which, by operation of the statute, would have been changed into an absolute fee.
It is denied, however, that such an estate, created since the statute, would be changed into a fee simple: for, that it would be in the identical words of the exception of the statute.
Hence, it is contended, that the proposition of. the adverse counsel, that the legislature intended, that grants, made after the enactment of the statute, in the same language of those which, by its terms, were converted into pure fees, should also convey fees simple to the grantees, can not be true.
To this argument, which, at least has the merit of plausibility, the counsel for the plaintiff in error urges a satisfactory reply : it is, that his proposition, alluded to, means, that every grant, that existed at the passage of the act, and contained words proper and necessary to create a fee tail, was changed, by the act, into a fee simple: and, that every grant made since, if it contained the same proper and necessary words to create a fee tail, is a conveyance of the fee simple. — That, before the act, a limitation of the reversion expressed, was useless and inoperative; because it was secured by operation of law, as well without, as with an express limitation.
Remarkable as it may appear, no case, fully involving the construction of this statute, has previously occurred in this court, or of a similar one, elsewhere, within our observation. As anew question, then, and one, which, from its nature must affect a large amount of real estate, on conveyances already existing, as well as others, to be executed, it is worthy of the most deliberate consideration.
To concede to the statute, according to the argu-[100]*100meat referred to, a construction which would abolish estates tail, created before its passage, and, at the same time, recognise the right of the same grant- or, or another, by the use of the same words, (they being appropriate and usual,) to create a new estate, of the same character, which would be valid, would involve an incongruity, which it is, by no means, probable, the legislature intended.
It is true, that, in England, a conveyance, such as is expressly authorised, by the proviso to the statute, would be regarded as a fee tail, and could constitute nothing else ; but, it is equally ! clear,' that a portion of the language thus to be used, would, there, be unusual and unnecessary: consequently, we are at liberty to suppose, that the legislature only intended to inhibit estates tail, created in the usual form, by providing, that the words, “heirs of the body,” should not, here, receive their technical common law operation, to limit a conveyance, so expressed, to lineal descendants, and. imply a reversion to the grantor, on the failure of such heirs. We are bound to do so, if it be found impossible, otherwise, to reconcile the general provision of the statute, with the exception, which, in this instance, appears to be the case.
Reference to another general provision, contained in the previous section of the same statute, will aid in the construction of this. It is that which declares, that “every estate in lands, whichshall be hereafter granted, conveyed or devised; although words, heretofore necessary to transfer an estate of inheritance, be not added, shall be deemed afee simple, if a less estate be not limited, by express words. This was no less an innovation upon the common law, than that [101]*101relating to estates tail:, by force of this, a conveyance, which, by the common law, would have created only a life estate, for want of the word “heirs,” is made to secure a fee simple.
A principle, which it appears to have been the object of both these sections of the statute to advance, was, that there should be no implied reversion of the fee ; and, of that relating to entails, that the words, “ heirs of the body,” should also be deprived of the virtue of limiting the grant to the grantee, and his lineal descendants, for the period only of their respective lives, unless an intention of the kind, instead of being left to implication, was declared by express words, such as prescribed by the statute, that “in default thereof, (of such heirs',) then to the right heirs of the donor.”
The position assumed, in argument, that, by virtue of the statute, a conveyance to one “ and the heirs of his body,” without any other limitation expressed, operates as an estate in fee, no less than if the word “ heirs,” generally, were used, appears to be tenable, and the only view that can give effect, both to the body and proviso of the statute.
Before the statute, the words “heirs of the body,” were the proper operative words, for the creation of an estate tail — the word “ heirs,” merely, for an estate in fee simple.
Then, in as much as the statute has declared, that every estate, which then had been, or thereafter might be created an estate in fee tail, should operate as an estate in fee simple, &c., the same effect, precisely, is given to either form of expression ; and, either must operate as a fee simple, if there be no other provision in the deed, to vary the import, such [102]*102as the last limitation prescribed by the statute, that, in default of heirs of the body, the estate should then revert to the right heirs of the donor, in fee simple. This limitation, also, appears indispensable, to reserve even a contingent fee in the grantor, according to the previous section cited, which gives to all conveyances the effect of fees simple, if less estates be not limited by express words.
It has never,been considered, that the words “heirs of the body,” even in England, reserved the right of reversion to the grantor, “ by express words,” but only by implication: this, it appears to have been the object of both these sections to prevent.
If the principle be conceded, as I think it must be, that under the statute, “ heirs of the body,” and “ heirs,” generally, without any other limitation expressed, import the same thing, the difficulty, on this point, must immediately vanish. The effect of this conveyance must be the. same as if the words, “heirs of their bodies,” in connection with “ heirs,” had not been inserted.
As respects the argument, that these words should constitute the heirs of the first takers, tenants in fee, after the death of their fathers, I can find no warrant for such construction. The common law import of •the words “ heirs of the body,” limited the estate to the lifetime of the heirs, as absolutely as did a grant to A, and the heirs of his body, limit his estate to the period of his life. On the same principle that these words could, or ever did deny to the tenant in tail, the absolute fee, they reserved the right of reversion.
By force of the statute, their effect has been alike varied, in both these respects. Had the legislature [103]*103intended to convert estates tail, such as are imported by this conveyance, into absolute fees, in the children of the first takers, we may safely presume, that other, and more appropriate words would have been used, for this purpose. Both in England and in the United States, the words, “ heirs of the body,” have, in their technical acceptation, been understood to imply the reverse.
A principle of decision ever to be held sacred, is, “that where words haye long been used, in a technical sense, and have received an uniform construction, they have become a rule of property, and the construction should be adhered to; otherwise, titles to estates may be unsettled.” Then, according to this principle, the words “heirs of their bodies,” as expressed in this deed, construed, without reference to the statute, would have had the effect to constitute Henry W. and Thomas J. Augustin, tenants in tail, thereby limiting the remainder as life estates, to their lineal descendants, through succeeding generations, until the line should become extinct, then to revert to the grantor. Apart from the statute, the terms, “failure of issue,” or “dying without issue,” mean an indefinite failure of issue: and, unless accompanied by some additional clause, word or circumstance, clearly denoting a contrary intention, they must receive this construction.—Patterson vs. Ellis.a
In this case nothing is expressed or implied the contrary, except under the influnce of the statute. This statute declares such shall constitute absolute fees; with the exception that lands may be conveyed “ to a succession of donees, then living, and the heir, or heirs, of the body of the remainder [104]*104man, and in default thereof to the right heirs of the donor, in fee simple.”
Hence I conclude, as before intimated, that to constitute a valid limitation, by deed, as here contended for, the language prescribed in the statute, particularly the latter clause, “and in default thereof, to the right heirs of the donor in fee simple,” must be adopted; and that for the want of such, in this deed, it must, according to the direction of the statute, operate as a pure and absolute fee, in the donees; that, consequently, the title of Martha A., the issue of one of them, cannot be sustained.
I am, therefore, of opinion that the judgment of the Circuit Court must be reversed; in this the Court are unanimous. Let the cause be remandad for a new trial
20 Jhon.R85