Hodges v. Hodges , 56 Mass. 455 ( 1848 )

Wilde, J.

This is a petition for partition, in which the petitioner claims an undivided third part of the premises, by virtue of a deed from his father Seth Hodges, deceased, to himself and to his brothers, Seth and Simeon, the respondents. The deed was never recorded; but as the respondents claim as devisees of Seth Hodges, the father, this is no objection to the validity of the deed.

The petitioner alleged, that the deed was delivered to his two brothers, and kept by them some time, and was afterwards, without his consent, given up to the grantor, and destroyed by him. The case comes before us on exceptions, taken at the trial, to the rulings of the court admitting the evidence offered by the petitioner to prove these facts.

The first exception taken was to the evidence of the declarations of the grantor. It is true, that the declarations of a grantor impeaching his grant are not admissible; and it may be true, that his declarations in support of his grant are only admissible against himself and his heirs and devisees; and then only after proof of the loss or destruction of the deed. But in the present case, it was proved that the deed had been given up to the grantor; and his declarations against his interest were therefore clearly admissible, after his death, in ■an action against his heirs or devisees. Such declarations might have been proved in an action against him ; and upon principle, and the authorities cited by counsel, the same evidence was rightly admitted in the present suit against his devisees. Ivatt v. Finch, 1 Taunt. 141; 3 Bing. N. C. 29; Doe v. Jones, 1 Campb. 367; 1 Greenl. Ev. § 147, and the cases there cited.

The second exception was to the admission of evidence of the declarations of two of the respondents. It is objected, that these declarations were not binding on the other respondents. But that question was not raised at the trial, and no instruction on that point was requested. That the evidence was admissible, cannot, we think, admit of a doubt.

The next exception relates to the ruling of the court as to the testimony of the justice of the peace who wrote the deed under which the petitioner claims title. He testified that it was an absolute deed, but contained some conditions ; “ that it contained a condition either that the father was to have a right to dispose of the property during his life, or the right of improving it during his life ; and that his mind was equally balanced as to which of these two conditions was in the deed ; but that he had a strong assurance on this point, or belief, derived partly from his recollections of instructions given by the grantor when he drew the deed, and partly from subsequent acts and declarations of the grantor.”

The witness was then asked by the respondents, what his belief was, and what were the instructions given by the grantor. But the court ruled, that the answer to these questions was inadmissible. And we cannot doubt that this ruling was correct; for the belief of the witness, founded wholly or partly on the acts and declarations of the grantor, done and made subsequently to the deed, was inadmissible for the purpose of defeating or limiting the estate granted. But there is another decisive answer to this exception. The witness testified, that the deed contained one of two conditions, and he was uncertain which. Now it is clear, that neither of these conditions would defeat the petitioner’s title.

If the condition were, “ that the grantor was to have a right to dispose of the property during his life,” this would be repugnant to the grant and void. So if a man makes a feoffment in fee upon condition that the feoffee shall not take the profits of the land, or that the feoffor shall have the profits, this condition is void, because it is repugnant to the grant. Co. Lit. 206; Bac. Ab. Conditions, L. So, if the condition were, that the grantor should have the right of improving the property during his life, it would be repugnant to the estate granted and void ; or if otherwise, the petitioner would be entitled to the land after the death of the grantor; for, although the conveyance would not be good as a deed of bargain and sale, if an estate for life were reserved to the grantor, it might well be construed as a covenant to stand seized so as to effectuate the manifest intent of the parties.

Exceptions overruled.