Isham v. Morgan , 9 Conn. 382 ( 1832 )

Hosmsr, Ch. J.

Whether the charge was correct, is the question now to be determined.

The case is briefly this. Dudley Wright conveys to his daughter a lot of land, with a dwelling-house thereon, by a deed well executed and delivered, and afterwards, on the same day, delivers a deed to John R. Watrous, purporting to convey to him the one half of the said house. What interest did John R. Watrous take under this deed 1 The obvious answer is, that he took nothing. By the delivery of the deed to Lydia, the grantor conveyed to her, not only the land, but the building upon the land. Cujus est solum, ejus est usque ad tcelum. From the moment in which the above deed was delivered, Dudley Wright had no interest in the land, or in the building thereupon. He had parted with the property; and having nothing to convey, could convey nothing. It is unnecessary to cite cases on so plain a subject; and I will content myself merely with an allusion to Lord Coke, on this point. 1 Inst. 4. a. The word land, he says, in its legal signification, mprehends any ground, soil, or earth whatever ; and it also an indefinite extent upwards, as well as downwards. Jt erefore includes all castle^, houses, and othfer buildings standing thereon; and downwards, whatever is in a direct linbetween the surface, and the centre of the earth. 2 Bin. Com. 17, 18. 1 Cruise’s Digest, 58. §3

If, then, a deed takes effect from its delivery, and the conveyance of land likewise conveys the buildings thereon, both of which are incontrovertible legal truths, the deed to John 11 Watrous had no possible effect; as the grantor had before divested himself of the property, which he endeavoured, by that instrument, to convey,

It has been insisted, that Dudley Wright, as appears on the face of his deed to his daughter Lydia, intended to convey to her the one half of the dwelling-house only. Admit this to bo the fact, it can make no difference in the case. He had conveyed to her the land; and this, by necessary legal consc-quence, conveys the house upon it. The intention of a contracting party, arising perhaps from ignorance, can never be available against an established rule of law, and the legal op eration of his deed. Nor can the court, by implication, reserve to him a right over property, which he clearly has transferred to another.

It has strongly been argued for the plaintiff that the deed given to Lydia Watrous and John R. Watrous, were evidences of one united transaction, and to be construed as if they formed one instrument.

For this position I discern neither principle nor case. The established rule is this : Where two instruments are executed at the same time, between the same parties, relative to the . same subject matter, to effectuate one object, they are to bo taken in connection as forming parts of the same agreement Mountague & al. v. Tidcombe & al. 2 Vernon, 518. Treatise. of Equity, 49. Taylor d. Atkyns v. Horde & al. 1 Burr, 60. Crop v. Norton, 2 Atk. 74. 76. Jackson d. Trowbridge & ux. v. Dunsbaugh, 1 Johns. Ca. 91. Stow v. Tifft, 15 Johns, Rep. 458. The principle is well illustrated, by Ch. J. Parsons, in Holbrook v. Finney, 4 Mass. Rep. 569. by the case of a deed given by the vendor of an estate, who takes back, at the same time, a mortgage to secure the purchase money; or by the giving of an absolute deed, and, at the same time, receiving a defeasance. These constitute one contract through the medium of distinct instruments. All the above cited ca-£ ses sustain the principle, as advanced and illustrated.

That tb this case the principle has no application, is indispu-ably clear. Here are two deeds, the one of them given to. Lydia Watrous, the other to John R. Watrous; instruments at executed at the same time, nor between the same parties, fior relative to one united subject matter, nor in effectuation of one object, nor in pursuance of any antecedent contract, made with the grantees jointly. Not a single constituent of the principle, applies to this transaction ; but the contracts were, in every sense, separate and disjoined.

Had it been proved, that Dudley Wright, intending to make . settlement of his estate, on the aforesaid grantees, to effectuate this object, executed and delivered the two deeds simultaneously, it would have presented a different case. But nothing of this kind appears. So far from this, one of the instruments was for a valuable consideration, and on the sale of property ; the other, for love and affection; so that the considerations are disjoined as well, as the whole transaction.

It is unnecessary to express an opinion, on the other points made in the case ; as the one discussed shows, conclusively, that the determination was correct.

Peters and Daggett, Js. were of the same opinion. Williams, J. was inclined to think, that the two deeds should be taken together; and that so considered, Lydia Watrous took the land, with only half the grantor’s interest in the buildings, and John R. Watrous took the other half of the buildings. Bissell, J. not having been present when the case was ar-jued, gave no opinion.

New trial not to be granted.