Turner v. Scott

• Decision Date: 14 January 1867
• Citation: 51 Pa. 126
• Parties: Turner <I>et al. versus</I> Scott.
• Court: Pennsylvania Supreme Court

Page 126

51 Pa. 126

Turner et al. versus Scott.

Supreme Court of Pennsylvania.

January 14, 1867.

ERROR to the Court of Common Pleas of Erie county.

COPYRIGHT MATERIAL OMITTED

S. E. Woodruff, for plaintiffs in error.—The instrument under which defendant claims is a testamentary paper, being "a disposition of property to take effect after the death of the person making it," 3 Kent's Com. 501. By this instrument, John Scott gives the property to his son after his death, and strengthens that by saying, "in no way to take effect during my life." The considerations expressed are usual in a devise to a son, and the son took the instrument cum onere, that it was to have no effect in the father's life. To say that this instrument prevented the father from disposing of the land would give it a most important "effect during (his) life." A deed which in terms was not to operate until after the testator's death, has been held to be testamentary: Redfield on Wills, p. 170; Gage v. Gage, 12 N. H. 731; Ingram v. Porter, 4 McCord 198; Milledge v. Lamar, 4 Dessaus. 617, also Hilliard, § 8; Bartholomew v. Henly, 3 Phillimore 318; Masterman v. Maberly, 2 Hagg. 247; Jackson v. Henderson, 1 Dessaus. 543; Redfield, p. 272; Habergham v. Vincent, 2 Ves. Jr. 204; Perry v. Scott, ante p. 119; Rose v. Quirk, 6 Casey 225.

If the instrument was a conveyance, could a freehold be created in futuro with a life estate reserved, and not granted to support it? The obvious construction of the instrument is that no present interest passed, and if not, then no estate whatever passed. When it is intended to grant a freehold to be enjoyed in future, it is necessary to create a previous particular estate: 2 Bl. Com. p. 164.

A bargain and sale was nothing more than the sale of the use, the possession remaining in the bargainor. The Statute of Uses annexes the possession to the use, and thus completes the purchase: Shep. Touch. 221. John Scott inserted the clause that the "conveyance should in no way take effect," &c., to prevent either title or possession from passing from him. But if actual seisin were not necessary, still the remainder must commence, and pass out of the grantor at the creation of the particular estate: 2 Bl. Com. pp. 167-168.

The consideration is not such as will require the grantor to stand seised to the use of grantee. There is a wide difference between construing a deed as a covenant on part of grantor to stand seised to the use of grantee, and a covenant on part of grantee to stand seised for use of a third party: 2 Hare & Wallace, notes to Amer. Lead. Cases, p. 391; Rowan's Appeal, 1 Casey 293.

J. C. & F. F. Marshall, for defendant in error.—1. Was the instrument a testamentary paper, or a deed? It has no features of a testamentary instrument: Hileman v. Bouslaugh, 1 Harris 344. It has all the requisites of a deed: a valuable consideration, the terms, grant, bargain, sell, &c., habendum and covenant of warranty. John Scott intended to convey a fee, subject to his life-estate. The son understood he was to get such estate. The intention must govern.

2. The clear meaning of the parties to be found in the instrument is, that it conveyed to the son an estate in fee, reserving a life estate to grantor. It was a conveyance subject to an encumbrance. Livery of seisin has nothing to do with it. By sec. 4 of Act of 28th May 1715, deeds have the same effect to give seisin as deeds of feoffment with livery of seisin: McKee v. Pfout, 3 Dall. 489; Dunwoodie v. Reed, 3 S. & R. 435; Sergt. Land Law 230, 242.

Recording is equal to livery of seisin. There is no difference in principle between a deed in fee reserving an estate for years, and reserving a life estate: putting on record is notice to all the world. The grantor and his heirs would be estopped. Hence in Pennsylvania a life estate reserved will perform the same functions as a life estate granted.

3. Does not the deed take effect as a covenant to stand seised to the use of the grantee? Equity does not regard the mode of conveyance so much as the intent of the parties; and a deed of bargain and sale may be construed a covenant to stand seised when both a money consideration and relation by blood appears in the deed: Sprague v. Wood, 4 W. & S. 195; Fisher v. Strickland, 10 Barr 348.

"Lease and release" was to avoid necessity of actual entry: 4 Kent. Comm. 493.

Deeds acting under the Statute of Uses may give an estate of freehold to commence in futuro: 2 Prest. on Convey. 127. A grant to A. merely, creates a life estate only; but when a party pays his money, and the intention is clear that a fee was to be conveyed, a use, which chancery would execute, is raised: Lynn v. Downs, 1 Yeates 520; McGirr v. Aaron, 1 Penn. Rep. 49. Wherever a deed of conveyance, &c., is made, and the intention of the grantor, &c., is clear, and a technical principle might defeat the intention, courts will declare the grantor a trustee, and the deed a covenant to stand seised for the use of the grantee: Martin v. McCord, 5 Watts 495; Allison v. Kurtz, 2 Id. 188; Wilt v. Franklin, 1 Binn. 519; Witman v. Lex, 17 S. & R. 96. The words bargain and sell make a covenant to stand seised: 4 Cruise's Dig. tit. 32, ch. 10, § 2. A bargain and sale for a pecuniary consideration to commence in futuro will operate as a covenant to stand seised according to the intention, without technical words: Jackson v. Swart, 20 Johns. 85; Barrett v. French, 1 Conn. 354; Wallis v. Wallis, 4 Mass. 135. A deed to a son reserving a life estate to the grantor is a covenant to stand seised for grantee: French v. Frend, N. H. R. 258; Jackson v. McKinney, 3 Wend. 233; Jackson v. Sebring, 16 Johns. 515, 9 Wend. 641.

The opinion of the court was delivered, January 14th 1867, by WOODWARD, C. J.

The great question in the case, and the only one we shall discuss, is, whether the indenture of 22d November 1849, by John Scott to his son John W. Scott, conveying the farm in dispute, was a deed or a will. Not whether the parties called it a deed, nor whether it contained the customary words of a deed; but whether, according to the intentions expressed upon the face of the instrument, it can in law have the effect and operation of a deed. This is our question, and it is important to place before our minds, in a very distinct light, the instrument to be interpreted.

John Scott, an old man living on his farm, made, what is called "This Indenture" to his son John W. Scott, at the above-mentioned date, upon a consideration of natural love and affection, and "also that the said John W. Scott hath this day agreed to live with the said John Scott, and labour for and assist him in working the land hereinafter described, and maintain Patience Scott the wife of the said John Scott, if she survives him, during her natural life," conveying the said farm by metes and bounds to him in fee simple "excepting and reserving nevertheless, the entire use and possession of said premises unto the said John Scott and his assigns for and during the term of his natural life; and this conveyance in no way to take effect until after the decease of the said John Scott the grantor." The habendum was to have and to hold the premises "after the decease of said John Scott," to him the said John W. Scott, his heirs and assigns, &c.

After the father and son commenced their joint possession under this deed they quarrelled, and the father turned the son out by an action of ejectment, and kept the sole possession in himself till he died, his wife Patience having died before him.

Before his death, to wit, on the 26th February 1861, he made a formal will in which he revoked all former wills, "and particularly a certain will and testament (in form as a deed) recorded in the recorder's office of said county of Erie, in deed-book U., p. 716, witnessed by Miron Hutchinson and George H. Cutler, and I hereby give and assign as the reason of revoking and making void said will, that my son John W. Scott and his wife have failed to treat me with filial affection, and to comply with the conditions upon which I made said will." He then goes on to devise the land in question to his daughters, Nancy Holliday, Anna Sanford, Parney P. Turner and his son Abner Scott, the plaintiffs in this action.

These devisees succeeded to the possession, but lost it by an action of ejectment brought against them by John W....