Township of Bernards v. Township of Warren , 15 N.J.L. 447 ( 1836 )

The opinion of the court, was delivered by

Hornblower, C. J.

William Compton, the pauper, in the year 1813, purchased a farm in the township of Warren, of the value of, and for which he paid one thousand dollars. He took possession of the farm, and resided upon it about five years; receiving the rents and profits, and paying the taxes. At the time of the purchase, the property was subject to a mortgage for five hundred dollars, which his vendor was to pay off, and satisfy out of the consideration money, paid by Compton to him. This not being done, Compton was finally turned out of possession, by a suit in Chancery upon that mortgage. If this were the whole of the case, there would be no doubt, upon the authority of Newark v. Pompton, Penn. R. 1039, but that Compton acquired a settlement in Warren. The difficulty arises upon another part of the case: which is, that the deed for the farm, was not made to Compton himself; but by his direction, it was made to Andrew Smally, Esq., in trust, for him and his wife, during their joint lives ; and after the death of the survivor of them, to their children in fee. Hence it is argued that Compton, was never so seized, as to entitle him to a settlement in the township of Warren.

The ease of Tewksbury v. Readington, 3 Halst. 319, does not stand in the way of the plaintiffs in certiorari; for, however strongly the opinion expressed in that case, may have indicated, that nothing less than an absolute title at law, would satisfy the language of our statute; yet it is manifest the court did not intend to conclude the question now presented to us. In that case the pauper had not even an equitable title; he had only a naked possession; and at most, a mere right in equity, to be substituted in tbe place of Bocker, (tbe man under whom he entered) and to have a conveyance upon fulfilling the conditions, which Bocker was bound to perform according to his contract with Mr. Rutherford, who was the owner in fee. And so far was the court in that case, from deciding, that seizin in equity, or of an equitable estate, was not sufficient, that the Judge who delivered the opinion of the court, expressly said, that, “ whenever the case of a cestuy que trust, shall present itself to the court upon express trusts, created in a deed or settlement; affording no uncertainty; where the trustees are a_ mere machinery for the express purpose of protecting him in possession and enjoyment, it will be time enough for the court to give an opinion upon it.” In the cause now before us, we have that very case; Compton, the pauper, was the purchaser of the farm: he paid for it, and had the actual, uncontrolled possession for five years: he resided upon it, enjoyed the profits and paid the taxes. His title to the land, and his . right of possession were complete, and undisputed. Smally was a naked trustee; a mere instrument for protecting him in the enjoyment of, and preserving to him, the estate. Compton was substantially, and truly, the owner of the land, and could not have been removed from it, by Smally himself.

Was Compton then, so seized of a freehold estate, as to give him a settlement ? I am clearly of opinion that he was, both by the terms of the statute, and upon the soundest principles of law. A cestuy que trust, in possession, is considered, in every respect, as the real owner of the estate: 1 Cruis. Dig. tit. Trust, Sect. 4. p. 493. To run after the naked legal title, and overlook the actual ownership, declared upon the very face of that title, would be like pursuing the shadow, and leaving the substance behind.

It is not necessary to have recourse to English settlement cases for authority upon thispoint; perhaps none, in very terms can bé foufid; but many ftiay bé citéd, which in principle, fully sustain niy vie\v óf thé subject. By 9 Geo., 1 O. 7, it is enacted, that nó person shall acq'uiré á, séttleniénb, “ by virtue of ány purchase óf 'any estatewhereof the consideration 'does not amount to thirty pounds, bona fide paid &c. Under this statute, the purchaser of an equity of redemption, has been held to give a settlement, provided the pauper had actually and in good faith paid thirty pounds for the estate. The King v. Inhabitants of Mattingly, 2 T. R. 12. So in The King v. Offchurch, 8 T. R. 117, it was decided that a husband gained a settlement by living on an estate, vested in Trustees for the separate use of his wife; that is, by being in possession of the equitable estate of the wife. Lord Kenyon in delivering his opinion, asks the question, whether it must be a legal estate in order to confer a settlement; and then answering his own interrogatory, replies “ certainly not ”; and after citing cases to show that an equitable estate is sufficient to confer a settlement, his Lordship adds, “ and indeed this position is confirmed by many other cases, and there are none in opposition to it.” nor is there any thing in the language of our statute to confine its influence to legal estates; it says “ ever}'- person who shall become seized of any freehold estate, &c.,” that is, any estate, of freehold, whether for 'life or in fee, legal or equitable. This accords with the decision of this court, in the case of Newark v. Pompton, Penn. R. 1039, and upon no other principle can it be sustained; for after all that can be said, a mortgage has not the strict legal estate, notwithstanding courts of law, now follow the courts of equity, and consider the mortgagor for certain purposes, as the real owner. There is a wide difference between a mere right in equity, to have an estate, and an equitable estate in possession. In Tewksbury v. Readington the pauper, had at most, only the former, but Compton in the case before us, had the latter.

By the 6th Section of the statute, making lands liable to be sold for the payment of debts, Rev. laws 430, the Sheriff is to be commanded to make the money of “ the lands, hereditaments and real estate, whereof the party was seized, &c. Under this statute, so far as I know, it has never been doubted in this State, but that an equity of redemption, may be levied upon and sold under a fi.fa. And can any one doubt, whether Compton was not so seized of his life estate in the farm, as that .it might have been sold under an execution ? In Waters and al. v. Stewart, 1 Caine’s Cas. in Error, 47, Spencer, Justice says, “ where a statute speaks of seizin, an equitable seizin, may be as well intended, as a legal one.” Kent, Justice, in the same case says, “the word seizin in a statute, is frequently construed to apply, to an equitable, as well as to a strict legal seizin. In this position those learned Judges are fully sustained by the case of Shropnel v. Vernon, 2 Bro. C. C. 268. That was a case upon the annuity act, 17 Geo. 8. which exempts from the necessity of enrolment, the grarit of an annuity, where the grantor is seized in fee or in tail, and it was held that an equitable estate in fee or in tail, was within the exemption, as much as legal estates. The Lord Chancellor in that case, says, that, “ in many acts of Parliament, an equitable estate, is Considered the same, as if it were a legal estate; ” and he refers to the words, “ seized in law or equity ” in the qualification act, as evidence that the word seized' is applicable to both.

As to was constitutes an equitable seizin, or rather, a seizin of an equitable estate, the books abundantly show us. In Casborne v. Scarfe. and al. 1 Atk. 604, it was,, held that a husband might be tenant by the courtesy of his wife’s equity of redemption; and yet we know, that seizin in fact, is one of the essential prerequisites of such an estate. But Lord Hardwicke in that case held, that there was such a seizin or possession of the equitable estate of the wife, as in equity is considered equivalent to an actual seizin of a freehold estate, at the common law; and he adds, “ actual possession, clothed with the receipt of rents and profits, is the highest instance of an equitable seizin.” The same doctrine is more fully illustrated in Burgass v. Wheates, 1 Bl. R. 260 and seq., and see 4th Kent’s com. 1st edit. fol. 31. Here, Compton had the actual possession, and was in the receipt of the rents and profits. He w. as therefore seized of a freehold estate in equity, and that satisfies the statute. In Rex v. Geddington, 2 B. and C. 129, it was decided that the words “ any estate or interest ” in a statute, means either a legal or equitable estate or interest; and I can perceive no reason for confining the words “freehold estate ” in our statute'- for the settlement of paupers, to legal estates of freehold. (See The King v. St. Michael's, Dougl. 608, 630. Whitestown v. Constable, 14 Johns. R. 469.) I am therefore of opinion, that Compton’s legal settlement was in Warren; and consequently both orders, that of the Justices as well as of the Quarter Sessions, must be quashed.

Orders of the Justices, and the Quarter Sessions quashed.

Cited in Yeo v. Mercereau, 3 Harr. 394.