Duffy v. Jarvis

• Decision Date: 02 February 1898
• Docket Number: 587.
• Citation: 84 F. 731
• Parties: DUFFY et al. v. JARVIS.
• Court: U.S. District Court — Eastern District of Tennessee

84 F. 731

DUFFY et al. v. JARVIS.

No. 587.

United States Circuit Court, E.D. Tennessee, Southern Division.

February 2, 1898

Dodson & Dodson, for complainants.

Brown &amp Spurlock, for defendant.

SEVERENS District Judge.

The bill in this case was filed by certain heirs of Isadore M Duffy to remove a cloud from their title created by the execution and recording of a certain trust deed by the above-named Isadore M. Duffy and her husband to Samuel M Jarvis, trustee, as security for a loan of money, on the 13th day of August, 1873, on certain land, to which the complainants claim title. Mrs. Duffy at the time of the making of said trust deed was in possession under a claim of title derived through a deed from D. J. Duffy, her husband. The granting part of this last-mentioned deed was as follows:

'I hereby give, grant, bargain, sell, transfer, and convey unto the said Isadore M. Duffy and the heirs of her body, free from my control, or the control of any future husband, for their sole use, forever, the following described piece of land.'

And the habendum was as follows:

'To have and to hold the above-granted premises to the said Isadore M. Duffy and the heirs of her body, free from my control, or the control of any future husband, for their sole and separate use and behoof, forever.'

Mrs. Duffy died before the filing of this bill. Her heirs now claim title to the land in themselves, as of the remainder attendant on a life estate in their mother, upon the terms of the above-mentioned conveyance to the mother. The defendants, on the other hand, claim that the deed to Isadore M. Duffy and the heirs of her body vested in her a fee simple (there being heirs of her body), which she had the power and right to convey by the trust deed to Jarvis above mentioned. The whole case turns upon the construction to be given to the deed to Isadore M. Duffy on the 13th of August, 1873. If that granted an estate in remainder to the complainants upon the termination of a life estate in Mrs. Duffy, the complainants are entitled to maintain this bill. If it did not, and the construction contended for by the defendants is the proper one, the suit of the complainants must fail. The issue presents an interesting question, which has its foundation in the ancient doctrines of the law respecting real property.

At an early period of the English law of real property, a gift or grant to a man and the heirs of his body constituted a conditional fee in the donee; that is, a fee conditional upon his having heirs of his body. If he did, then he was regarded as having an estate in fee simple, to such an extent that he could alien the lands and give a complete title. If he did not have such heirs, or if he did and they died in his lifetime, and no alienation had been made by the donee, the estate reverted upon his death to the donor. This power of alienation in case the donee of such an estate should have heirs of his body was the result of judicial theorizing prompted by the desire to promote a supposed public policy in the free alienation of lands; but in many instances it disappointed the expectations of the heirs, and defeated the intention of the donor. The landed nobility of the country, intent on holding their great estates in their own families, were dissatisfied with the result of this judicial construction of devises and grants, and procured the enactment of the statute (13 Edw. I.) de donis conditionalibus (that is, concerning conditional estates), which declared that thereafter such construction should not be given to the gift or grant, but that such conveyances should be construed (as their form is, and according to the intention of the donor) to convey an estate which would, upon the death of the donee, pass to the heirs of his body; and it deprived the donee of the power to alien the land upon his having heirs of his body, as he could previously have done. Under this statute, the donee had what was called an 'estate tail' (that is, cut out of the fee); upon the termination of which the heirs of his body came into the estate according to the form of the gift. The estate tail which the first donee took was an estate tail general or special,-- general when the gift over was to the heirs of his body, without other description; and special where it was to some special kind of such heirs, as heirs male or heirs female. This was the character of such estate as impressed by the statute de donis, and this law prevailed for several hundred years, until the effect of it, in tying up the lands of the country, became so intolerable that by another scheme of judicial devises the tenant in tail was allowed to cut off the entailment, and convert the estate into a fee simple, by having a proceeding instituted in a court by the intended purchaser, and then making concord with him,-- a final agreement, sanctioned by the court, whereby the plaintiff took the land, or the tenant vouched in a pretended warrantor, then suffered a default, and the plaintiff took judgment against him, and he, in turn, against the vouchee, for lands of equal value; but, as the vouchee was always a good for nothing person, nothing was expected from the recovery over against him. But these methods of fines and recoveries were formal contrivances, and in some of their features merely farcical. However, they served the purpose of providing a means of cutting off entails.

The rule of construction embodied in the statute de donis became inwrought as a rule of the common law of England, and in that form was...