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sessed by solemn livery, it has been held, that a deed of bargain and sale will not, any more than in England, operate to convey or affect any estate which is not in the bargainor.?
13. In Vermont, the superior court of the State, by Redfield, C. J., held, that the English statute of uses was not in force, though Thompson, J., of the United States Court had held otherwise in the same district. And one reason suggested by the former why the statute was not needed, was, that the courts of equity *in that State had full power to accomplish the intention of [*152] the parties to deeds, without resorting to the doctrine of that statute.?
14. In Ohio, it is said, that uses are not in force, and that the system of conveyancing in use there does not depend upon the statute 27 Hen. VIII., but has taken its form and derives its authority from the State statutes and local usages. A deed, for instance, to P. H. in trust for the heirs and devisees of P. H. was held in that State to create a trust. But still, both by the ordinance of 1787, and the courts and writers upon the law of that State, the conveyances employed there were held to be derived from the statute of uses, and reference is constantly made to the 'modes of conveyance which had grown up in other States and England, under this statute. Thus it is said, “our only conveyances are those which originated under the statute of uses. But, in all other respects, our law of real property is the same as if that statute had never been enacted.” 3 The ordinance of 1787 prescribed bargain and sale and lease and release as the modes of conveying land: “We hold, the mere execution and delivery of the deed without any other ceremony, completes the conveyance.
We hold some pecuniary consideration necessary which was not in a feoffment, because, without such consideration, a use could not be raised.” And in giving the opinion in Foster v. Dennison, Lane, C. J., says: “A deed may be held to operate in any form of conveyance that will carry into execution the lawful objects of the maker, whether the form be feoffment, grant, bargain
1 Den v. Crawford, 3 Halst. 107. See Prince v. Sisson, 13 N. J. 168.
Gorham r. Daniels, 23 Vt. 600, decided in 1851. Held generally that the statute of uses seems to have been adopted in N. England. Society, &c. v. Hartland, 2 Paine, C. C. 536 ; Sherman v. Dodge, 28 Vt. 26.
3 Walk. Am. Law, 311; Helfensteine v. Garrard, 7 Ohio, 275.
and sale, or release, and the deed may enure as either.” 1 A knowledge, therefore, of the law of uses seems to be requisite in order to understand and apply the forms of conveyance in use in that State. In Iowa, uses are embraced in their code under the term “ real estate,” and are accordingly inheritable and subject to the rules of conveyance. And no seals are required to convey lands in that State.2
15. In Tennessee, the statute of uses is said not to be in force, though in the absence of any form of deed prescribed by statute, any deed good at common law or under the statute of uses would be
valid as a mode of conveying lands.3 [*153] *16. In New York, essential changes were made in the
law regulating real property by the revised code of 1827, and among other things in the matter of uses. Previous to that, numerous cases had arisen in which the doctrine of the English statute had been applied. In one it is stated, that as early as 1779, and so on till 1788, when the English statutes were abolished, the form of conveyance in the State was lease and release. In another it is said, that the words remise, release, and forever quitclaim, or release and assign, will raise a use by way of bargain and sale, and that by any words amounting to a present contract of sale or bargain, a use is raised which the statute will execute, and that it would be sufficient that a valuable consideration was paid, whether it was expressed or not. In another, the language of the deed was, “ for
• value received, I hereby make over and confirm to, &c. ;” and it was held, that this was enough to raise a use, the statute there performs the task of the ancient livery of seisin.” 6 And in accordance with what has been repeated under the English rule and that adopted in other States, if the use in a deed of bargain and sale were to another than the bargainee, it would create a trust, and not be a use which the statute would execute.7 In Jackson v. Dunsbagh, the court were inclined to hold, that a future use might be raised by means of a deed of bargain and sale, the use in the mean
1 Foster v. Dennison, 9 Ohio, 124. 2 Pierson v. Armstrong, 1 Iowa, 282, 294. 3 Thornt. Conv. 479.
4 Jackson v. Myers, 3 Johns. 388. 5 Jackson v. Fish, 10 Johns. 456. 6 Jackson v. Root, 18 Johns. 79. ? Jackson v. Cary, 16 Johns. 302; Jackson v. Myers, 3 Johns. 388.
time resulting to the bargainor, and that a covenant to stand seised may be sustained in this country upon a pecuniary consideration.
17. For the changes in the law of New York as to real property, effected by the revised statutes of 1827, reference is chiefly made to Mr. Lalor's work, presenting the text of the statute, the revisor's notes, and the cases decided under the statute. By that statute “ uses and trusts, except as authorized and modified in this article, are abolished.” The exception relates to *trusts, . [*154] properly so called, so that, in terms, uses are abolished. But whatever might have been accomplished by means of uses, is effected in the form of statutory provisions incorporated in the act. Among other things, a grant is made effectual without livery of seisin. In the language of the revisers, the new modifications of property which uses have sanctioned, are preserved by repealing the rules of the common law, by which they were prohibited, and permitting every estate to be created by grant which can be created by devise. And this is the effect of the provisions in relation to expectant estates contained in the first article of this title.” 2 The statute confirmed every estate then held as an executed use. Every person who by grant or devise should be entitled to the actual possession of land, and the receipt of the rents and profits in law or in equity, was deemed to have the legal estate therein of the same quality, &c., as his beneficial estate. A contingent remainder in fee may be created on a prior remainder in fee, in certain cases mentioned. Freeholds might be created in futuro, and a fee might be limited on a fee, upon a contingency within prescribed limits as to perpetuity. And now conveyances are made by grant simply." The law of Alabama is substantially like that of New York. Where a deed was to one with a use, trust, or confidence for another, it was accordingly held to create in the beneficiary the same estate as if the deed had been made directly to him.ó
18. All that it is proposed to add upon the application of uses in
· Jackson v. Dunsbagh, 1 Johus. Cas. 91. But see Jackson v. Cadwell, 1 Cow. 622.
? Lalor, Real Est. 119, 124.
3 Lalor, Real Est. 86, 92, 154 ; Coster v. Lorillard, 14 Wend. 265-399, where the whole subject is considered.
+ Wms. Real Prop. 153, Rawle's note. 6 You v. Flinn, 34 Ala. 411-414.
American conveyances, is to recapitulate from Thornton's treatise the forms of deeds usually employed, remarking, that it may not be a fair inference that the doctrine of uses would be inapplicable in any State where they are not declared not to exist, because no case has arisen in the courts of the State to test the question, or because a form of deed not known under the statute of uses, may have been declared by the statute of a State sufficient to convey lands. It may be stated then, generally, that the form of deeds in ordinary use in the following States is substantially that of bargain and sale. Arkansas, Connecticut, Delaware, Florida, Georgia, Illinois, Indi
ana, Kentucky, Maryland, Michigan, Minnesota, Mississippi, [*155] *Missouri, New Hampshire, New Jersey, Pennsylvania, Ver
mont, and Virginia. In Massachusetts, as already stated, the deed in use is like the old charter of feoffment, with words of bargain and sale added, and a use declared after the habendum. By statute, deeds of release and quitclaim are effectual to pass all the grantor could pass by bargain and sale, and a similar provision is found in the statutes of Michigan, Maine, Minnesota, and Indiana. In California, the simple requisite is that the instrument should be a deed. In Iowa, no deed is required, nor is a deed required in Kentucky. It is sufficient if the conveyance be in writing. The statute of Rhode Island recognizes deeds of bargain and sale, Jease and release, and covenant to stand seised, but it seems to be immaterial what form is adopted. In South Carolina, a form is prescribed, but other forms are not interdicted. Tennessee has a prescribed form. In Texas, “ bargains and sale, and other conveyances” are recog
. nized by statute, while a form of release is given which does not contain any declaration of use. In Wisconsin, no form of deed is prescribed.?
19. It may be proper to add something to what has already been said upon the subject, how far there may be a covenant to stand seised in this country, where the consideration is wholly a valuable one as is distinguished from what is known as good. The reason for the distinction once existing between bargain and sale, and covenant to stand seised, resulting from the enrolment of the former, is quite
i Code 1858, o 2013.
2 For authority, the reader is referred to Thornton's treatise, under the heads of the several States above enumerated.
with here where all deeds are required to be registered, whether of one form or another. In several cases the court have found as facts aliunde from any recital in the deed, that there was a relationship between the grantor and grantee when it has become necessary to resort to the doctrine of covenants to stand seised to give effect to deeds. And this although there was an express acknowledgment of a pecuniary consideration. In Gale v. Colburn, the only relationship was that the grantee had married a *daughter of the grantor, who had died several years be- [*156] fore making the deed, leaving two children who were in no way referred to in the deed. In Emery v. Chase, the court held it doubtful whether the deed could be construed a covenant to stand seised, since the grantee was not related to the grantor. “And, although,” say the court, “ deeds for other considerations have sometimes been called covenants to stand seised, and have used the language peculiar to such instruments, yet their legal operation has been of deeds of bargain and sale, as they are found to possess the requisites which belong to this kind of assurance.” 2
20. When considering what would be such a relation as to constitute a good consideration, courts have held that that of an illegitimate child or grandchild was insufficient.3
21. The reasoning of Jackson, J., in Massachusetts, and Lewis, J., in New York, would lead to the inference, that in this country a covenant to stand seised may be grounded upon a valuable as well as a good consideration; though in the former case, in the language of Jackson, J., “The conveyance being in effect a bargain and sale, must have all the other requisites and qualities of a bargain and sale. One of those qualities is, that it must be to the use of the bargainee, and that another use cannot be limited on that use, from which it follows, that a freehold to commence in futuro cannot be conveyed in
as that would be to make the bargainee hold to the use of another, until the future freehold should vest.” 4
Gale v. Colburn, 18 Pick. 397.
Emery v. Chase, 5 Me. 232. Cains v. Jones, 5 Yerg. 249; Jackson v. Cadwell, 1 Cow. 622 ; Jackson v. Sebring, 16 Johns. 515 ; Co. Lit. 271 b, n. 231, III. 3.
* Welsh v. Foster, 12 Mass. 93, 96; Jackson v. Dunsbagh, 1 Johns. Cas. 96; 4 Greenl. Cruise, Dig. 110, 112, note.