Bunch v. Nicks

• Decision Date: 31 March 1888
• Parties: BUNCH <I>et al.</I> <I>v.</I> NICKS <I>et al.</I>
• Court: Arkansas Supreme Court

Page 563

7 S.W. 563

BUNCH et al.

v. NICKS et al.

Supreme Court of Arkansas.

March 31, 1888.

Appeal from circuit court, Arkansas county; JOHN A. WILLIAMS, Judge.

Hemingway & Austin, for appellants. Gibson & Holt, for appellees.

BATTLE, J.

Quinton D. Nix, being the father of six children,—two sons and four daughters,—conveyed his property, consisting of three tracts of land and personal property, by three several deeds, to three of his children,—a son and two daughters. The father having died, the daughters, and the children of the son who received nothing by the deeds, brought this action to set aside the conveyances, and for partition. They allege in their complaint that the father was incompetent to convey his property at the time he undertook to do so, and that the deeds were procured by fraud and undue influence; but this is denied by defendants in their answers. Upon the final hearing the court below decreed that the deeds should be set aside, and the property therein described be divided among the heirs of Nix; and the defendants appealed. The deeds were executed on the same day, and, except as to the names of the grantees, and description of the property conveyed, and so much of one as conveyed the personal property, are of the same tenor and effect. The deed to the son is in the following words:

"This deed of conveyance made and executed at Swan Lake, in the county of Arkansas and state of Arkansas, on this the 3d day of March, A. D. 1883, by and between Q. D. Nicks, senior, party of the first part, and Q. D. Nicks, junior, party of the second part, witnesseth, that for and in consideration of the sum of one dollar this day in hand paid by the party of the second part to the party of the first part, the receipt whereof is hereby acknowledged, and in consideration of the love and affection that the first party bears to the second party, he hath bargained, sold, and conveyed, and by these presents does grant, bargain, sell, and convey, unto said Q. D. Nicks, junior, and to his children, (and the same shall not be sold or alienated until the youngest child shall arrive at the age of twenty-one years, and the deed shall go into full force and effect at my death,) the following described lands, to-wit: The south half of the north half of the north-west quarter of section twenty, in township six south, of range six west, being a fractional part of forty acres, the boundaries hereafter to be designated by stakes or iron stobs, together with all the improvements and appurtenances thereon, or in anywise belonging thereto; to have and to hold the within granted lands and premises unto said party of the second part, his heirs and assigns, forever. And the party of the first part will, and his heirs and assigns shall, forever warrant and defend the title to the same unto said party of the second part, his heirs and assigns, against all lawful claims whatsoever.

"Witness my hand and seal the time and place before written.

                                                             "Q. D. NICKS. [Seal.]"
                

To the deed to one of the daughters was added the following sentence: "And in consideration of the said second party's taking care of her mother and myself during our life-time, and paying all of my funeral expenses, I do bargain and sell unto the said Martha Bunch, and by these presents do bargain, sell, and convey at my death all the personal property that I may be possessed of; to have and to hold forever." All the deeds were properly acknowledged and recorded. It is contended that these deeds are void upon their faces. The objection is, they purport to convey freehold estates to commence at the death of the grantor. Are they void for the reason stated?

It was a principle of the feudal law of England that "an estate of freehold must be created to commence immediately." "For," says Blackstone, "it is an ancient rule of the common law that an estate of freehold cannot be created to commence in futuro; but it ought to take effect presently, either in possession or remainder; because at common law no freehold in lands could pass without livery of seizin, which must operate either immediately, or not at all. It would therefore be contradictory if an estate which is not to commence till hereafter could be granted by a conveyance which imports an immediate possession." Prior to the reign of Henry VIII., real estate could be conveyed to one person in trust or for the use of another, and equity would enforce the use. In this way the title could be held by one, while the use and profits of the land could be enjoyed by another free from feudal responsibilities. The use was a mere right in equity, and did not come within the technical rules of the common law which governed the alienation of real estate. While "a fee could not be mounted upon a fee," at common law, "or an estate made to shift from one person to another by matter ex post facto; and a freehold could not be made to commence in futuro, nor an estate spring up at a future period independently of any other; and a power could not be reserved to limit the estate, or create charges on it in derogation of the original feoffment," — "a use might be raised after a limitation in fee, or it might be created in futuro, without any preceding limitation; or the order of priority might be changed by shifting uses or by powers; or a power of revocation might be reserved to the grantor, or to a stranger, to recall and change the uses." The facility with which they could be created led to their application to a variety of purposes in the business of civil life; and they were often perverted to mischievous ends. Lord Bacon complained that they were "turned to deceive many of their just and reasonable rights." To prevent the abuses and frauds practiced through them, the statute of 27 Hen. 8, c. 10, commonly called the "Statute of Uses," was passed, by which it was enacted that the legal estate or seizin shall be in them that have the use, "in such quality, manner, form, and condition as they before had in the use," and thereby united the use and legal title, and changed the use from an equitable to a legal interest, and gave to the legal interest thereby created the qualities of the use, and declared that the cestui que use held the same in the same manner, form, and condition as he before held the use; so that, while freehold estates to commence in futuro could not be conveyed at common law, such conveyances can be made under the statute of uses. 2 Bl. Comm. 327; 4 Kent, Comm. *290-*298. The result of the statute of uses was, several new modes of conveying legal estates, wholly unknown to the common law, came into use; among them, covenants to stand seized to uses, and bargain and sale. In the first-mentioned conveyance a man seized of lands covenants that he will stand seized to the use of the covenantee for life, in tail, or in fee. "Here," says Blackstone, "the statute executes at once the estate; for the party intended to be benefited, having thus acquired the use, is thereby put at once into corporal possession, without ever seeing it, by a kind of parliamentary magic." In the bargain and sale, "the bargainor, for some pecuniary consideration, bargains and sells, that is, contracts to convey, the land to the bargainee, and becomes by such a bargain a trustee for, or seized to the use of, the bargainee, and then the statute of uses completes the purchase; or, as it hath been well expressed, the bargain first vests the use, and then the statute vests the possession." By both modes an estate of freehold to commence in futuro can be created under the statute of uses. 2 Bl. Comm. p. 338. In Roe v. Tranmarr, Willes, 682, "A., in consideration of natural love and of £100, by deed of lease and release granted, released, and confirmed certain premises, after his own death, to his brother B. in tail, remainder to C., the son of another brother of A., in fee; and he covenanted and granted that the premises should after his death be held by B. and the heirs of his body, or by C. and his heirs, according to the true intent of the deed. It was held that the deed could not operate as a release, because it attempted to convey a freehold in futuro, but that it was good as a covenant to stand seized." In Wyman v. Brown, 50 Me. 139, H. B., in consideration of $1,000,...