Bayler v. Commonwealth

• Decision Date: 24 July 1861
• Court: Pennsylvania Supreme Court
• Parties: Bayler <I>versus</I> The Commonwealth for use, &c.

Page 37

40 Pa. 37

Bayler versus The Commonwealth for use, &c.

Supreme Court of Pennsylvania.

July 24, 1861.

ERROR to the Common Pleas of York county.

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E. Chapin and E. H. Weiser, for plaintiff in error—Either it is settled law in this state that expectancies may be conveyed in the ordinary way, or that scarcely any cases of the kind have ever occurred. We find but one, McClure v. McClure, Phila. Rep. 117, where it is said, "there is nothing in the law to prevent the conveyance of a mere expectancy or possibility." This case is even stronger, because it is one of a conveyance of all the grantor's present and expectant interest in the real estate of Jacob Bayler, which in that case was of all the present and expectant interest in the estate of W. McClure, deceased. The expectancy was, in that case, more remote. See Smilie's Estate, 10 Harris 133; 2 P. Wms. 182; Becky v. Newland, Id. 191; Hobson v. Trevor, Wethered v. Wethered, 2 Eng. Ch. Rep.; 2 Simons 183; Harwood v. Tooke, Id. 193; Lyde v. Mynn, 8 Eng. Ch. Rep. 406; Trull v. Eastman, 3 Metcalf 121.

The words "grant, bargain, and sell," in this deed, under the Act of May 28th 1817, create an express covenant to Henry Bayler, his heirs, for an indefeasible fee simple estate. The other party is estopped by this deed: 4 Kent's Com. 98. Mrs. Jay had an interest in her father's estate at the date of this conveyance, subject to be divested at the will of the father. The course which this property would take, was irrevocably fixed by his hopeless insanity, which continued until his death. This right she exercised, when, through her husband, she applied for the commission of lunacy.

The New York cases, which appear to be in conflict with this doctrine, are not applicable, because, in that state, livery of seisin is a necessary element of conveyancing; and, beside this, those that have been cited are unlike the one now under discussion, and all others of expectancy from ancestors.

A married woman is deemed a feme sole as to her right of disposing of her separate property: coverture affecting the manner of doing so, but not the power. If so, she may enter into covenants in regard to it, not personal, perhaps, but such as will estop her from denying the effect of her own acts of ownership: Jacques v. Methodist Episcopal Church, Am. Law Jour., vol. 5; 2 Story's Eq., §§ 1401, 1391; Paterson v. Robinson, 1 Casey 81; Black v. Galway, 12 Harris 134; Demarest v. Wynkoop, 3 Johns. Ch. Rep. 144; Duffy v. The Insurance Company, 8 W. & S. 413; Jamison v. Jamison, 3 Whart. 457; Sheidel v. Weishler, 4 Harris 134; Cummings' Appeal, 1 Jones; Goodyear v. Rembaugh, 1 Harris 480. A mortgage is no more than a contract of sale, and a mortgage executed by a feme covert, as proprietor, in the manner provided by law, is valid, so far as the property is concerned. It is not necessary for plaintiff's case that she be personally bound by the covenants in the mortgage; it is enough that her liability extends to what she covenanted for, so far as to estop her from denying the effect of her deed, and from recovering money against it: see Smilie's Estate, 10 Harris 130; Lytle's Appeal, 12 Casey 131.

Even as an assignment of a chose in action, it is effectual: Siter's Case, 4 Rawle 468; Webb's Appeal, 9 Harris 248.

The acknowledgment of the wife cannot be contradicted by parol evidence, except in case of fraud or imposition: Watson v. Baily, 1 Binn. 470; Jourdan v. Jourdan, 9 S. & R. 268; Jamison v. Jamison, 3 Wh. 457; Loudon v. Blythe, 4 Harris 532. Nothing of the kind is pretended here. Her act was voluntary, and under the advice of her counsel.

V. K. Keesey, for defendant in error.—There are two kinds of possibilities recognised by the law, viz., the one coupled with an interest, the other a mere naked possibility. The former may descend, or be conveyed — the latter not: Roe v. Griffith, 1 W. Blacks. 606; Jones v. Roe, 3 Term Rep. 96; Fearne on Rem. 367-8; Jackson v. Waldron, 13 Wend. 219; Preston on Estates 204; Pelletine v. Jackson, 11 Wend. 120; McCracken v. Wright, 14 Johns. 194; De Haas v. Bunn, 2 Barr 335; Wilson's Estate, 2 Id. 330.

Nor was Mrs. Jay's estate affected by the lunacy of her father. The probability of her inheriting might have been increased by this fact, but Jackson v. Waldron rejects the consideration of such contingencies. This mortgage was not valid as a conveyance. A person can only convey that which he possesses. Nor can it operate by way of estoppel, for the reason given in Jackson v. Waldron, and Pelletine v. Jackson, above cited, and Jackson v. Vanderheyden, 11 Johns. 167.

The words "grant, bargain, and sell," are not binding on a feme covert, especially when the mortgage shows that she had no title. The Act of 1770 contemplated the conveyance of an existing estate, not a mere expectancy.

If no conveyance, it was not within the recording acts. Many of the cases cited by the plaintiff in error, are of executory contracts between parties able to contract, and are, therefore, not in point. Others refer to separate estates of wife, created by deed or will, while others relate to expectancies of an entirely different character from that involved in this case.

This mortgage was not executed according to the requirements of the Act of 1848. There was no previous separate acknowledgment by her in favour of a grantee who accepts such an instrument in good faith. The certificate of acknowledgment is conclusive; but if it contain a false statement such as this did, as to a separate examination of the wife, which the grantee knew to be false, or which, as a prudent man, he might have known on inquiry, it may be contradicted by parol evidence: Loudon v. Blythe, 3 Casey 25; 4 Harris 532.

The opinion of the court was delivered, July 24th 1861, by STRONG, J.

The mortgage given by Mrs. Jay and her husband to Henry Bayler, was not a pledge or conveyance of any estate which she owned at the time of its execution. Nor did it profess to assure to the mortgagee any present interest. By it she bargained and sold to Henry Bayler, his heirs and assigns, "all the estate, right, title, and interest, in law or in equity, to which she would become entitled on the death of her father, Jacob Bayler, in his estate, real, personal, and mixed, by will, descent, or otherwise." She also covenanted jointly and severally with her husband, to stand seised of the said estate, right, title, and interest, to the use of Henry Bayler and his heirs, and to make further assurances. Her father was then living. In his estate she had no property — no interest. The subject of the mortgage was, therefore, nothing that she then had. It was a mere expectancy, and the instrument of mortgage was made, not for any consideration then received by her, or parted with by the mortgagee, but solely for the purpose of securing a prior debt of her husband. Such being the facts of the case, and Mrs. Jay's father having since died, the question presented is, whether the mortgage is efficacious to enable the mortgagee to hold against her the share of the father's lands which descended to her.

It is an old and well settled rule of the common law, that a mere possibility cannot be conveyed or released; and the reason given for it is that a release or conveyance supposes a right in being: Sheph. Touch. 319; Litt., § 446; 1 Inst. 265 a; Fitzgibbon 234; McCracken v. Wright, 14 Johns. 193; Davis v. Hayden, 9 Mass. 514. At law, therefore, nothing passes by a deed of land of which the grantor is only heir apparent. Certainly nothing by its direct operation. And this is as true of conveyances which operate under the Statute of Uses, as of others. In such cases there is no seisin to give effect to the statute; and without seisin a conveyance can only operate as a common law grant. A...