Ferguson v. Mason

• Decision Date: 15 May 1884
• Citation: 60 Wis. 377,19 N.W. 420
• Parties: FERGUSON v. MASON.
• Court: Wisconsin Supreme Court

60 Wis. 377

19 N.W. 420

FERGUSON

v.MASON.

Supreme Court of Wisconsin.

Filed May 15, 1884.

Appeal from the circuit court, Waukesha county.

Ejectment, to recover an undivided one-third of certain land described in the complaint. The answer denies the plaintiff's title, and alleges that the defendant is the sole owner of the land in fee-simple.

The facts, as they appear from the testimony and the findings of the court, are as follows: In 1877 John Ferguson, Sr., who was the father of these parties, and then the owner of the land claimed, conveyed such land to the defendant. The deed thereof expresses a consideration “of one dollar and love and affection.” The land was the homestead of the grantor, but his wife did not sign the conveyance thereof to the defendant. That conveyance contains the following clause: “The party of the first part reserves the sole, free, and absolute use and control of all the above-described lands so long as he and his wife, or either of them, may live.” The same reservation is contained in the habendum clause. The wife of the grantor, John Ferguson, Sr., died in 1881, and the grantor died in 1882, intestate. His only heirs at law are these parties and one Margaret Darrah, all of full age. On the death of her father the defendant went into possession of the land thus conveyed by him to her, and has entirely excluded the plaintiff from the possession thereof.

The conclusions of law from the above facts are: “(1) That said deed to said Ellen Mason did not convey to said grantee the homestead of the grantor; that the same was reserved and excepted from said conveyance; (2) that said deed practically conveyed to said Ellen Mason the remainder over on the expiration of a life estate to the grantor for two lives in being, to-wit, himself and his wife; (3) that said deed is a good and valid deed, and said John Ferguson, Sr., and his wife, being both dead, by it the defendant was rightfully in possession of said real estate at the commencement of this action, and entitled to hold and enjoy the same in fee-simple; (4) that defendant is entitled to a judgment dismissing the complaint, with costs.”

Judgment was thereupon entered dismissing the complaint, with costs. The plaintiff appeals from the judgment.Hurlbut & Van Alstine, for appellant, John Ferguson.

Parks & Thompson, for respondent, Ellen Mason.

LYON, J.

1. Laying aside the question of homestead for the present, it is necessary, first, to determine whether a conveyance of land by the owner thereof (in fee) is valid, in which it is stipulated that the grantor shall have the possession, and absolute use and control, of the land during his life.

In very many of the older cases the courts, out of tender regard to the subtle and technical distinctions and niceties of the common-law rules respecting the tenure and alienation of real estate, seem to have held that if such a conveyance be regarded as a feoffment, or bargain and sale, it could not be upheld. The reason given was that the effect of the exception or reservation therein contained was to retain the whole estate in the grantor during his life, and to uphold the conveyance would be to violate the rule that a freehold cannot thus be created to commence in futuro. So those courts upheld such conveyances on the ground that a covenant might be implied from their terms on the part of each grantor to stand seized of the lands to his own use during his life, and, after his decease, to the use of his grantee and his heirs. Hence, upon the execution of the deed, the grantor was tenant for life, and a remainder in fee was vested in the grantee. Thus, those courts were strictly loyal to the old common-law rules which grew out of tenures that never obtained in this country to any great extent, and at the same time gave judgments which are clearly reasonable and just. Many of the cases above referred to are cited in the briefs of the respective counsel, and such citations will be preserved in the report of this case. Such conveyances cannot, however, be upheld in this state on any implied covenant, or on the doctrine that the grantor stands seized to the use of the grantee, for our statutes long since abolished both implied covenants and such uses. Rev. St. 1858, c. 84, § 1; Id, c. 86, § 5; Rev. St. §§ 2071, 2204. But we think they may be upheld on other grounds.

The statute recognizes and defines future estates in expectancy as follows: “A future estate is an estate limited to commence in possession at a future day, either without the intervention of a precedent estate, or on the determination, by lapse of time or otherwise, of a precedent estate created at the same time.” Rev. St. 1858, c. 83, § 10; Rev. St. p. 614, § 2034. At common law the intervention of a precedent estate, created at the same time, was essential to the validity of a conveyance of an estate of freehold, to commence at a future time, which is an estate in remainder. It was said that without such precedent estate there could be no valid remainder. The reason was (and it was conclusive to the minds of our English ancestors) that unless a precedent estate was created there could be no livery of seizin to support the remainder; and, without livery of seizin, no estate of freehold could be created. After laying down the rule and giving the reasons therefor above suggested, Blackstone informs us how the future expectant estate, that is, the remainder, may be created. He says: “So, when it is intended to grant an estate of freehold, whereof the enjoyment shall be deferred till a future time, it is necessary to create a previous particular estate, which may subsist till that period of time is completed; and for the grantor to deliver immediate possession of the land to the tenant of this particular estate, which is construed to be giving possession to him in remainder, since his estate and that of the particular tenant are one and same estate in law. * * * The whole estate passes at once from the grantor to the grantees, and the remainderman is seized of his remainder at the same time that the termor is possessed of his term. The enjoyment of it must, indeed, be deferred till hereafter; but it is, to all intents and purposes, an estate commencing in prœsenti, though to be occupied and enjoyed in futuro.” 2 Bl. Comm. 165. But this refined doctrine of the necessity to create a particular estate to support a freehold estate to commence at a future time, has been overturned by the statute above quoted. Similar statutes prevail in a large number of the states of the Union. These are referred to in 2 Washb. Real Prop. 265, (4th Ed. 592.)

Conveyances of land containing exceptions or reservations similar to that in the conveyance under consideration in the present case, are very common and always have been in general use in this country, as the reports of judicial decisions abundantly show. Because of this fact, some courts, in the absence of statutory provisions on the subject, have held such conveyances valid, without much regard to any other ground upon which their judgments might have been placed. This is notably true of the supreme court of Connecticut. Barrett v. French, 1 Conn. 362; Fish v. Sawyer, 11 Conn. 545; Bissell v. Grant, 35 Conn. 288.

Our constitution thus ordains: “All lands within the state are declared to be allodial, and feudal tenures are prohibited.” Article 1, § 14. That is to say, the owner of land in this state holds the same of no superior. He has absolute dominion over it, owing no rent, service, or fealty to any, on account thereof. His obligation of fealty to the government is an obligation arising out of his citizenship, and is no greater or different because he is a proprietor also. Even the government may not condemn his land to the public use without paying him a just compensation therefor. Why has not the owner of land, held by a tenure so absolute, the right to convey it on such terms and under such restrictions as he chooses to impose, so long as he contravenes no public policy or positive rule of law? And what policy or rule of law is contravened, if, instead of making his conveyance take effect immediately, he stipulates that it shall take effect at the end of a month or a year, or on the happening of some future event? We should be strongly inclined to uphold that right as a necessary incident to allodial tenure, were there no statute expressly conferring it.

The conclusion is, inevitably, that, if otherwise sufficient, a conveyance of land in fee, to take effect at a future time, is valid, and will vest the fee in the grantee according to the terms of the conveyance.

2. We will now proceed to consider how and to what extent the conveyance under consideration is affected by the facts that the land included therein was, when the same was executed, the homestead of the grantor, and that his wife did not sign such conveyance. The conveyance was executed in 1877. The statute then and still in force enacted that no mortgage or other alienation by a married man of his homestead, exempt by law from execution, shall be valid or of any effect as to such homestead without the signature of his wife to the same. Rev. St. 1858, c. 134, § 24, (Rev. St. p. 632, § 2203.) Chapter 270, Laws 1864, provided as follows:

“Section 1. Any homestead which shall have been heretofore disposed of by the last will and testament of the owner thereof, or which shall hereafter be disposed of by the last will and testament of the owner thereof, shall descend to the legatee or legatees in said will named, and they shall take and hold the same according to the terms of said will, free from the incumbrance of all judgments and claims against the testator or his estate, except mortgages lawfully executed thereon.

Sec. 2. In case the owner of any homestead shall die intestate, leaving a widow and no children, such homestead shall descend to his widow; and in case such owner die intestate, leaving a widow and children,...