Heath v. Hewitt

• Decision Date: 02 June 1891
• Citation: 27 N.E. 959,127 N.Y. 166
• Parties: HEATH v. HEWITT.
• Court: New York Court of Appeals Court of Appeals

127 N.Y. 166

27 N.E. 959

HEATH

v.HEWITT.

Court of Appeals of New York, Second Division.

June 2, 1891.

Appeal from an order of the general term of the supreme court, fifth department, reversing a judgment entered upon the report of a referee dismissing plaintiffs' complaint. This action was brought to recover one equal undivided eleventh part of certain lands described in the complaint. The plaintiff asserted title by virtue of the following instrument:

‘This indenture, made this twenty-eighth day of April, one thousand eight hundred and forty-six, between Benjamin Heath, of Locke, Cayuga county, N. Y., of the first part, and the heirs of Warren Heath, of the same place, to be equally divided among them, of the second part, witnesseth, that the said party of the first part, for and in consideration of two hundred and fifty dollars, does grant, bargain, sell, confirm, unto the said party of the second part, and to their heirs and assigns forever, all that certain piece or parcel of land situate on lot No. thirtythree, in the township of Locke, bounded as follows. On the north and west by lands owned by the heirs of Salmon Heath, deceased, on the south and southwest by the center of the highway, and on the east by lands owned by the said Benjamin Heath, containing about thirteen acres of land, being the same premises deeded to the said party of the first part by Harvey Heath and wife, as by reference to said deed (Book 77, p. 619) will more fully appear, escepting and reserving to myself the whole use and absolute control of the said premises during my natural life; and in case my wife, Naamah, should outlive me, to her during her natural life, and after her decease to my son, Warren, during his natural life. And further, this conveyance is made subject to a certain judgment rendered in favor of Jonas Rude, of two hundred and fifty dollars, the amount of which judgment the said Warren hereby agrees to pay, together with all and singular the hereditaments and appurtenances thereunto belonging or in any wise appertaining, excepting the reserves above mentioned, to have and to hold the said premises above described to the said party of the second part, their heirs and assigns forever; and the said party of the first part for his heirs does covenant, grant, promise, and agree to and with the said party of the second part, his heirs and assigns, the above-bargained premises against all and every person or persons whatsoever lawfully and equitably claiming or to claim the whole or any part thereof forever to warrant and defend. In witness whereof, the said party of the first part has hereunto set his hand and seal, the day and year first above written. Nota Bene. 2nd space from top, the words ‘the heirs,’ interlined before signing; also, 5th space from bottom the words, ‘excepting the reserves above mentioned.’

‘BENJAMIN his x mark. HEATH, [L. S.]’

Warren Heath was a son of Benjamin Heath, the grantor, and at the date of the instrument had eight children, among whom was the plaintiff. Thereafter three children were born to him, and at the time of the commencement of this action all of his children were living. After the death of Benjamin Heath and his widow, Warren Heath entered into possession of the land described in the deed, and so continued until January 22, 1868, under claim of title as life-tenant under the instrument granted. On the day last named Warren Heath and his wife, for a valuable consideration, quitclaimed all their right, title, and interest in and to such premises to Harvey Heath. March 1, 1871, Harvey Heath and wife, by a warranty deed, conveyed said lands to Jefferson S. Hewitt, the defendant in this action, who subsequently went into possession thereof under said deed, and so continued up to the time of the trial of this action. The referee found as a conclusion of law, that the deed from Benjamin Heath to ‘the heirs at law of Warren Heath,’ who was living, was void for uncertainty as to who were the grantees, and directed judgment to be entered dismissing the complaint with costs.

H. Greenfield and S. Edwin Day, for appellant.

W. W. Hare and W. E. Hughitt, for respondent.

PARKER, J., ( after stating the facts as above.

Appellant's contention is that, inasmuch as Warren Heath was living, a grant to his heirs was void for uncertainty, as there were no persons in being who could take under that description. It is essential to the validity of a grant that the parties be named in the deed, or so plainly designated as to distinguish them with certainty; and it is asserted that, as there were no heirs of Warren Heath at the date of the deed, ‘because no one can be heir during the life of his ancestor,’ (Broom, Leg. Max. *522,) the grantees were neither named nor designated. Our a ttention is called to the rule laid down in Cruise's Digest, (title 29, c. 3,) where it is said to be ‘a rule of the common law that no inheritance can vest, nor any person be the actual, complete heir of another, till the ancestor is previously dead,- nemo est haeres viventis.’ In Hall v. Leonard, 1 Pick. 27, a grant of land to the heirs of A. B. was held to be void, and in a discussion of the question the court said: ‘No case has been found to support a grant to a man's heirs, he being living at the time of the grant.’ So in Morris v. Stephens, 46 Pa. St. 200, a conveyance by a grantor to ‘the heirs of his son Andrew,’ who was then living, was held to be void for uncertainty. In Huss v. Stephens, 51 Pa. St. 282, the grantor of the deed under consideration was also the grantor in the instrument before the court in Morris v. Stephens, supra. In the Morris Case the deed described the grantees as heirs of Andrew Lautz, Jr., and the consideration expressed was one dollar in money and ‘the natural love and affection which the grantor hath for said heirs;’ while in the Huss Case the grantees were described in the same manner, but the consideration expressed was one dollar and ‘the natural love and affection he hath for his grandchildren;’ the difference in the two cases being that in the latter the word ‘grandchildren’ in the consideration clause appears in the place of the word ‘heirs' in the former. In the first case the deed was held to be void for uncertainty. But the second was declared to constitute a valid grant, because the word ‘grandchildren’ defined what he meant by the use of the word ‘heirs' in describing the grantees. It enabled the court...