Blessing v. House's Lessee , 3 G. & J. 290 ( 1831 )

Stephen, J.,

delivered the opinion of the court.

After referring to the evidence, the judge said :—The sole question, therefore, which this courtis called upon to decide is, whether the first mentioned deed was legally operative and admissible, as evidence to go to the jury for the purpose for which it was offered, or in other words, whether the deed was not legally defective for uncertainty in the description of the property intended to be conveyed ? The deed has reference to the will of William House, to identify the land, which it was intended to transfer to Mary Harvey; and the question therefore necessarily arises, whether the will is not equally and essentially defective in the description of the property it was intended to convey? And upon mature deliberation we think it unquestionably was. By the will of William House, it was designated by the name of the. “ Old Cabin Farm; it being likewise to be taken from that part or parcel of land the said W. II. bought of Holland, to bo laid off by the said W. IPs executors at his death, for 100 acres of land.” The Old Cabin Farm was not located on the plots, nor was there any location of the land as laid off by the executors of W. II. according to the provisions of his will. There was, therefore, no location on the plots to which the deed offered in evidence could apply, and the principle is well settled, that no title paper can be offered in evidence unless it is located. The deed we think was defective for uncertainty. It referred to the will to ascertain the land it was intended to convey. The will did not specify with certainty or precision the land devised; it was to be laid off by W. IPs executors at his death. There was no proof in the cause that the executors of W. H. ever had executed the duty or trust devolved upon them by the will, and the reference by the deed to the will, does not therefore cure or remove the ambiguity. It was contended by the counsel for the appellant, that although the deed from W. II. to his daughter M. H., did not operate to convey any specific quantity of land to his daughter, by reason of its ambiguity in the description of the land intended to be conveyed, yet that it might operate as conveying an undivided interest, and make M. II. a tenant in common with W. II., and that the deed of the 4th of September, 1818, might operate as a deed of partition. But to this proposition we cannot accede. We do not think that the deed from W, H. to M. H. operated to make them tenants in common. It is an essential attribute of a tenancy in common, that there should be a unity of possession; wherever, therefore, the tenure of the estate intended to be conveyed, indicates a holding in severalty, or by particular or specific description, a tenancy in common cannot exist. Is#. Tho. Co. Lit. 875. “ Tenants in common are they which have lands or tenements in fee simple, fee tail, or for term of life, &e. and they have such lands or tenements by several titles, and not by a joint title, and none of them know of this his several, but they ought by the law to occupy these lands or tenements in common, and pro indiviso to take the profits in common. And because they come to such lands or tenements by several titles, and not by one joint title, and their occupation and possession shall be by law, between them in common, they are called tenants in common.” In this case, the 100 acres were to be laid off by executors, and the devisee was to hold them exclusively in her own possession, which provision in the will is wholly destructive of the idea of a tenancy in common, to which estate, a unity of possession is essential. Neither can the deed of the 4th of September, 1818, operate as a deed of confirmation: because it is the office and operation of such a deed, to corroborate and give legal effect, not to a void, but voidable estate. A confirmation does not strengthen a void estate ,* for a confirmation may make a voidable or defeasable estate good, but cannot work upon an estate that is void in law. 1 Cru. Dig. 105. It was contended by one of the counsel for the appellant, that though the first deed might be defective and inoperative at law, yet that it might be available in equity as a contract, which a Court of Chancery would enforce. Admitting that Chancery will aid defective conveyances by parents making provision for children. 1 Vernon, 133. 1 Fonb. 349. Yet it must be remembered, that the parties in this cause were litigating in a court of law, and whatever might have been the equitable rights of Mary Harvey, they could not avail her as matter of defence in the action of ejectment; nor is it believed that equity would have enforced the first deed to the prejudice of John House, who was a subsequent purchaser for valuable consideration without notice. We are also of opinion that the principle established by the case of Hammond, vs. Norris, 2 Harr. and Johns. 130, is strictly applicable to the case now before this court. In that cáse, the plaintiff having located on the plots, a deed from John Howard to Philip Hammond, offered in the first bill of exceptions, to read in evidence a deed bearing date the 27th of September, 1753, being a deed of bargain arid' sale by way of mortgage, conveying unto Hammond all those two parcels of land being parts of a tract of land called Wood's Inclosure, and sold to the said John Howard by Joseph Wood, one parcel containing 86 acres, the other 94 acres as by deed duly made and recorded in the records of Frederick county appears; the said two parcels of land being also what the said J. Howard's dwelling plantation is made upon. In the second bill of exceptions, he then produced and offered to read in evidence the said deed from J. Howard to P. Hammond, dated the 27th of September, 1753, herein before mentioned in the first bill of exceptions, and showed that the 86 acres of land therein mentioned were located by him on the plots, beginning at the end of the 27 th line of Wood's Lot, as located by him at black A, and running, &c. to the beginning. u Chase, Ch. J. The deed from J. Howard to P. Hammond of the 27th September, 1753, does not sufficiently specify the land, being for 86 acres and 94 acres, parts of Wood's Inclosure, conveyed by Joseph Wood to John Howard, as appears by deed recorded in Frederick county, but the deed thus referred to, cannot be found. This deed does not define the 86 acres by any courses or distances, there is therefore, nothing in it whereby any locatable land can be conveyed, and of course passes nothing, and passing nothing, it cannot be evidence. Nothing but the deed itself, can prove the location of the land recited in the deed now offered to be read to the jury. The court are therefore of opinion, that the deed from J. Howard to P. Hammond is not legal evidence to show title in Hammond in the 86 acres of land, part of Wood's Inclosure, as located on the plots by the plaintiff, or to support his location of the same, without producing the deed from Joseph Wood to J. Howard, to which the deed from J". Howard to Hammond doth refer, to ascertain and identify the 86 acres intended to pass by the same, and that the deed is inoperative to pass the same, without producing that deed. The court refuse therefore to suffer the same to be read to the jury.” This court are of opinion that the principle involved in that decision, is decisive of the question now before this court, and that the judgment of Frederick County Court ought therefore to be affirmed.

JUDGMENT AFFIRMED.