Abbott v. Holway

• Decision Date: 04 June 1881
• Citation: 72 Me. 298
• Parties: CLARISSA B. ABBOTT v. OSCAR HOLWAY, administrator on the estate of JAMES ABBOTT.
• Court: Maine Supreme Court

72 Me. 298

CLARISSA B. ABBOTT v. OSCAR HOLWAY, administrator on the estate of JAMES ABBOTT.

Supreme Judicial Court of Maine.

June 4, 1881

ON REPORT.

This is an action on the case for waste. The writ is dated September 28th, 1878.

The plea is the general issue and brief statement denying the plaintiff's title and claim.

At the trial it was admitted that James Abbott was, on the 30th of April, 1872, and long had been, the husband of the plaintiff that he died May 5th, 1875; that the defendant is the administrator on his estate; that he owned, on the 30th of April, 1872, and long had owned, the premises described in the writ, a valuable farm in Pittston, upon which was a large timber and wood lot; that he continued to live on the farm with his wife managing and taking the crops thereof until his death, she now surviving him; that in the winter and spring of 1875, without the consent and against the remonstrance of the plaintiff, he caused to be cut and hauled to market, a quantity of mill logs, cut for that purpose, and not for fencing or repairs.

Since Abbott's death, his administrator has sold the lumber made from the logs and received the money therefor.

The plaintiff put in evidence the deed from James Abbott to her dated April 30th, 1872, embracing the premises described in the writ and upon which the alleged waste was committed, and proved its execution and delivery on the day of its date, and its record in the Kennebec registry on the same day by plaintiff's procurement. It is made part of the case.

(Deed.)

" Know all men by these presents, that I, James Abbott of Gardiner in the county of Kennebec, in consideration of one dollar paid by my wife Clarissa B. Abbott, and for the purpose of providing and securing to my said wife a comfortable support in the event of my decease during her life, the receipt whereof I do hereby acknowledge, do hereby give, grant, bargain, sell and convey, unto the said Clarissa B. Abbott of said Pittston, her heirs and assigns forever a certain lot of land situate in said Pittston and bounded … ..

This deed is not to take effect and operate as a conveyance until my decease, and in case I shall survive my said wife, this deed is not to be operative as a conveyance, it being the sole purpose and object of this deed to make a provision for the support of my said wife if she shall survive me, and if she shall survive me then and in that event only this deed shall be operative to convey to my said wife said premises in fee simple. Neither I, the grantor, nor the said Clarissa B. Abbott, the grantee, shall convey the above premises while we both live without our mutual consent. If I, the grantor, shall abandon or desert my said wife then she shall have the sole use and income and control of said premises during her life.

To have and to hold the aforegranted and bargained premises, with all the privileges and appurtenances thereof to the said Clarissa B. if she shall survive me, her heirs and assigns, to their use and behoof forever. And I do covenant with the said Clarissa B. her heirs and assigns, that I am lawfully seized in fee of the premises; that they are free of all incumbrances; that I have good right to sell and convey the same to the said Clarissa B. if she shall outlive me, to hold as aforesaid at my decease. And that I and my heirs shall and will warrant and defend the same to the said Clarissa B. if she shall survive me, and her heirs and assigns forever, against the lawful claims and demands of all persons.

In witness whereof, I, the said James Abbott, have hereunto set my hand and seal, this thirtieth day of April in the year of our Lord one thousand eight hundred and seventy-two.

JAMES ABBOTT. [Seal.]"

Signed, sealed and delivered in presence of

N. M. WHITMORE,

L. CLAY."

Duly acknowledged and recorded.

A. P. Gould, for the plaintiff.

The deed from James Abbott to Clarissa B. Abbott, conveyed a freehold to take effect in futuro and was a valid conveyance. Wyman v. Brown, 50 Me. 139; Jordan v. Stevens, 51 Me. 78; Drown v. Smith, 52 Me. 141.

The deed seems to have a double intention; first, to make provision for her if she should survive him; and second, that she should also have and possess the estate during his life if he deserted her.

Waste of the estate by the grantor, after the execution of such a deed, is a palpable fraud upon the settlement; and even where the statute would not permit an action of law to recover damages for such waste (as our statute does) they might be recovered in a court of equity. Powlett v. Dutchess of Bolton, 3 Ves. Jr. 374; Greenl. Cruise, 130; King v. Sharp, 6 Humph. 55; Marquis of Landsdowne v. Marchioness of Landsdowne, 1 Mad. 140, 116. See note (2) to case Lee v. Alston, 1 Ves. Jr. 82. See also notes to Pigott v. Bullock, 1 Ves. Jr. 483, 484.

But we do not have to resort to equity. We are entitled to maintain this action by R. S., c. 95, § § 3, 4.

All that Hunt v. Hall, 37 Me. 363, decides is that a contingent remainder-man cannot maintain an action of waste, under the statute while the contingency exists. But when the title becomes absolute, may he not then maintain waste against the tenant for life? Judge Jackson seems to intimate that he can. Jackson on Real Actions, 329; see also Greene v. Cole, 2 Saunders 252.

Counsel further cited: Foster v. Mansfield, 3 Met. 412; Hatch v. Hatch, 9 Mass. 307; 2 Wash. R. P. 612, (2d ed.) Jackson v. Dunsbach, 1 Johns. Cas. 96; Richardson v. York, 14 Me. 216; Cook v. Mason, 4 Mason 488.

J W Bradbury, for the defendant.

Nothing passed by the deed from Abbott to his wife. It did not convey a contingent remainder. It might never take effect, there was no certainty that it ever would. Abbott retained the fee in himself. He did not part with the title. The plaintiff derived no estate that she could convey. An estate is vested when there is an immediate fixed right to a present or future enjoyment. Fearne on Rem. 1, c. 8.

The estate remained to Abbott. He had the present enjoyment and it might descend to his heirs.

The learned counsel has been able to refer to no case in this country where a deed has been sustained when by its terms the title might forever remain in the grantor and his heirs. The case of Powell v. The Duchess of Bolton does not bear upon this question.

A contingent remainder is a possible remnant of an estate that passes from the grantor at the time he conveys the rest of the estate. 1 Ins. 143; 1 Fearne on Rem. § 747.

The instrument is a mere executory agreement--a promise by Abbott to make a title after he should die. It is an attempt to make an executory devise in a manner not authorized by law, and against sound principles of public policy. If sustained as a conveyance it would amount in effect to a partial repeal of the statute of wills.

BARROWS J.

The plaintiff's right to maintain this action must depend ultimately upon the construction to be given to the deed or instrument under which she claims title, and upon the force and effect of the terms used therein to define the interest which she acquired by virtue thereof

Our statutes (R. S., c. 73, § 1,) provide that " a person owning real estate and having a right of entry into it, whether seized of it or not, may convey it, or all his interest in it, by a deed to be acknowledged and recorded as hereinafter provided." Detailed regulations as to the mode of execution and as to the force and effect of conveyances thus made and recorded, follow this general provision in some thirty sections, more or less. Can it be doubted that under such statutes the owner of real estate can convey in the manner prescribed, such part or portion of his estate as he and his grantee may agree, subject only to those restrictions which the law imposes as required by public policy, but relieved from the technical doctrines which arose out of ancient feudal tenures, and all the restrictive effect which they had upon alienations. Why prevent the owner in fee simple from agreeing with his grantee (and setting forth that agreement in his conveyance) as to the time when, and the conditions upon which, the instrument shall be operative to transfer the estate from one to the other?

In substance our law now says to a party having such an interest in real estate as is mentioned in R. S., c. 73, you may convey that interest or any part thereof in the manner herein prescribed with such limitations as you see fit, provided you violate no rule of public policy, and place whet you do on record so that all may see how the ownership stands.

In the discussion of the effect of the statute of uses and of our own statutes regulating conveyances of real estate in Wyman v. Brown, 50 Me. 139, (a leading case upon the validity of conveyances under which the grantee's right of possesssion was to accrue not upon delivery of the deed but at some future day), WALTON, J. remarks: " We are also of opinion that effect may be given to such deeds by force of our own statutes, independently of the statute of uses. Our deeds are not framed to convey a use merely, relying upon the statute to annex the legal title to the use. They purport to convey the land itself, and being duly acknowledged and recorded, as our statutes require, operate more like feoffments than like conveyances under the statute of uses." In this connection he quotes Oliver's Conveyancing, touching the operation and properties of our common warranty deed to the effect that in the transfer authorized by the statute in this mode, " the land itself is conveyed as in a feoffment except that livery of seizin is dispensed with upon complying with the requisitions of the statute, acknowledging and recording, substituted instead of it."

And he concludes that deeds executed...