Mott v. . Richtmyer ( 1874 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The rights of the parties in this action depend mainly upon the construction and effect to be given to the three written instruments marked upon the trial exhibits A, B and C. Parol evidence cannot be used to explain, modify or contradict these writings. The rule which excludes such evidence applies not only to prior and cotemporaneous oral declarations, but with equal force to subsequent declarations. The object of putting agreements into writing, is to exclude, as said by Lord COKE, a resort to "the uncertain testimony of slippery memory." A writing would be of little consequence unless in construing it, judges are to be confined to the language used. They may resort to surrounding circumstances so as to stand in the very light, as near as possible, which the parties stood in. But this they may do, not to import anything into the writing which is not expressed by the language used, but that they may understand the language, and whatever the language is found clearly to import, must be held to have been intended by the parties, no matter how strongly facts not contained in the writing point to a contrary intention. The intention after a resort to such helps as the law allows, must be sought for in the writing alone.

In disposing of this case, we must assume that exhibits A, B and C were valid instruments. There is no allegation in the complaint that they were procured by fraud, or that George Richtmyer was incompetent, or that he was in any way imposed on by his brother Abraham. They are treated as valid in the complaint, and copies of them are annexed thereto. They are in no way assailed in the complaint, and the only duty we have in reference to them, is to determine what they mean. By exhibit A, which bears date April 21, 1835, George Richtmyer, agreed with his brother Abraham, that his share of the real estate, owned by the three brothers in common, should remain undivided with Abraham's share, and he constituted Abraham his attorney, to take and receive his portion of the real estate, and to release all his claim to the balance; he agreed that Abraham should take the charge and direction of the two undivided shares of the real estate, and that he would acquiesce in his bargains and directions in reference thereto. He also authorized Abraham to receive his share of the personal estate, and agreed with him that he would not at any time revoke the power of attorney, except for one of the causes mentioned, and that "the charge, direction, use and income of said estate," should belong to his "brother Abraham, his heirs, executors, or administrators, or asignees forever." As a consideration of the conveyance of his estate to Abraham, George was to have a home with, and be supported by Abraham. There were only two causes for which George could resume the control of the estate during his lifetime. One was his marriage, and the other was, his ill-usage or mal-treatment by Abraham, to be adjudged by three disinterested men. Subject to these two contingencies, there is nothing in this instrument to impair Abraham's perfect and absolute control over the estate during the lifetime of George. The parties evidently understood that the estate was in such way conveyed to and vested in Abraham, that without the happening of one of the two contingencies mentioned, George could not even dispose of his estate by will, and hence it was specially provided that he should, at all times, be at liberty to devise and will the estate to whomsoever he pleased. But in case he did not resume the estate for one of the causes mentioned in his lifetime, and he made no will, there is not even a hint in the instrument, that Abraham's estate was not thereafter to be perfect. If it was the intention, that Abraham was to have an estate only during the lifetime of George for his support, why was it provided that the estate "shall be, and belong" to Abraham? Not only this, but to "Abraham, his heirs, executors, or administrators, or asignees forever?" What purpose can such language serve, if Abraham was at most, to have an estate during the lifetime of George only? This instrument was in form sufficient to convey the whole estate to Abraham; it was signed, sealed and witnessed. A grant of the use and income of real or personal estate, forever carries the fee of the land, and the personal estate itself. (Fox v. Phelps, 17 Wend, 393; Reed v. Reed, 9 Mass., 372; Craig v. Craig, 3 Barb. Ch., 76; Co. Lit., 4 b; Caldwell v. Fulton, 31 Penn. St., 484; Clement v. Youngman, 40 Penn. St., 344; 3 Washburn on Real Prop., 333.) The fact that Abraham was to keep an account of the personal estate, in no way conflicts with these views, but rather supports them, as the only reason assigned for keeping the account is, that George's share of the property may be separated, in case of the happening of the contingencies mentioned.

I am, therefore, of opinion, if the claims of Abraham's family and heirs rested alone upon exhibit A, their title to the property in dispute could not be questioned by the plaintiffs; but, on the seventh of May, George and Abraham executed another instrument, which is called exhibit B. This was also signed, sealed and witnessed, and I infer from its language that it was attached to the other one. The only express modification of the prior one is in reference to that portion thereof which provides that George's share of the real estate should remain in common with Abraham's. It was agreed that the referees should set off a certain tract of land for George's share, and, to make equality of partition, that they should award George such a sum of money, to be paid by Abraham, as would, added to his real estate, give him one-third in value of the real estate to be divided among the three brothers, and that this sum of money should remain in Abraham's hands, as provided in the prior agreement. It was then provided that out of George's personal estate in his hands, he should build a house and other buildings on the lands set off to George, for him, "in case it shall be his choice hereafter not to live with Abraham." So far, there is nothing in the agreement affecting the title to the land which Abraham took under the former agreement, except that the two shares were not to be set off together; but George's share was to be designated, so that, upon the happening of either of the contingencies mentioned in the prior agreement there would not have to be a further partition. The provision that George might, if it should be his choice, live in the new house to be built, did not discharge Abraham from his support, as provided in the former instrument. This was, probably, intended to provide a house for George in case, for any reason, he should prefer not to live in Abraham's family. It is further provided, that the balance left of the personal estate, after building the house, should remain in Abraham's hands, as provided in the prior instrument, and that that instrument should remain in force as to the personal estate, and that Abraham should have the charge and management of the real estate in the same manner as was agreed upon by the preceding instrument. Without particularizing further, there is nothing in this instrument releasing Abraham from the support of George as provided in the prior instrument, and nothing whatever to take from him and his heirs "the charge, direction, use and income of the estate forever," as also provided in that instrument, subject to the three contingencies therein mentioned. The last instrument is more obscure and uncertain in its terms than the prior one; but as it was annexed to the prior one, and intended simply to modify that, the two must be construed together, and the prior one must be left in force, except as it is thus modified. All the provisions of the latter instrument are in harmony with the general intent manifested in the former one, to give the whole estate to Abraham, subject to the three contingencies mentioned. By the first instrument the estate became vested in Abraham, and he could be divested of it only by the happening of some one of the contingencies, or a reconveyance in some form. There was no language used in the second instrument which could work a reconveyance.

That I have not misconstrued these two instruments is made still more manifest by exhibit C. The parties doubtless supposed that a more formal instrument was requisite to pass the legal title to the real estate, and hence George executed this deed on the eleventh day of May. It is a full, perfect and formal deed, and by it he conveyed all his real estate — describing it — to Abraham, his heirs and assigns, forever. The habendum clause is as follows: "To have and to hold the said lot of land, with the appurtenances, in trust for the purpose of securing to the party of the first part a good, comfortable living and maintenance, under contingencies of sickness, infirmity and old age, to the said party of the second part, his heirs and assigns, to the sole and only proper use, benefit and behoof of the said party of the second part, his heirs and assigns, forever." That portion of the deed called the premises gives Abraham, his heirs and assigns, forever, an absolute title in fee to the lands conveyed. There is an apparent attempt to qualify this title in the habendum clause, but that clause cannot have the effect claimed by plaintiffs' counsel. It is said in 4 Kent's Commentaries, 468, that the habendum clause "cannot perform the office of divesting the estate already vested by the deed, for it is void if it be repugnant to the estate granted." Judge SUTHERLAND, inJackson v. Ireland (3 Wend., 100), says: "No doubt the premises in a deed must control where the habendum clause is inconsistent with it." In Tyler v. Moore (42 Penn. St., 386), Mr. Justice STRONG says: "The purpose of an habendum is to define precisely the extent of the interest granted. It may lessen, enlarge, explain or qualify the interest described in the premises, but it must not be totally repugnant to it. Thus, if in the premises an estate be granted to one in fee simple, that is to one and his heirs, it may by the habendum be lessened to an estate tail, that is to an estate to him and the heirs of his body. In such a case, effect will be given both to the premises and to the habendum. The latter does not contradict the former; it only defines what heirs of the grantee were intended by it. Still it is true that if the habendum be absolutely repugnant to the premises, if it cannot be reconciled with them so that full effect can be given to both, it must give way and the premises must stand. Thus, if there be a grant to one and to his heirs, habendum to him for life, there is an irreconcilable contradiction, for it cannot be an estate for life and at the same time an estate in fee simple; either the word heirs in the premises must be stricken out or effect must be denied to thehabendum. In a deed the premises will prevail." (See, also, 3 Wn. on Real Prop., 372, etc.) Here the habendum, if it be admitted that it was intended to cut down Abraham's interest to an estate for the life of George or for a shorter period, so far as this intent is manifested, is totally repugnant to and irreconcilable with the premises, for in them a fee simple is granted. The habendum cannot frustrate, abridge or lessen the estate granted, but it may limit the uses to which the estate shall be held. (3 Wn. on Real Prop., 375, § 64; Shep. Touch., 114; Nightingale v. Hidden, 7 R.I., 118.) If it was the intention by the habendum that the income of the estate granted should, during the life of George, be applied to his support, then there probably would be no repugnancy between the habendum and the premises, as the quality of the estate granted would not be cut down, but the fee would be left unimpaired, the use only of the land being limited during a certain period for a certain purpose. But here no trust was created, to receive the income or rents and profits of land and apply them to the support of George. But Abraham was to hold the land in trust for the purpose of securing a support to George. What kind of a trust was this? How was George's support to be secured? Such a trust, undefined and uncertain in its nature, could not probably be carried into effect. It is not such a trust as is authorized by the Revised Statutes (1 R.S., 728, § 55), and it cannot, therefore, be upheld as a strict technical trust in real estate. The only way, therefore, that the habendum clause can have any force at all is to hold, upon the whole deed, that the real estate in fee simple was conveyed to Abraham charged with George's support, or upon condition that he should support George. In either view, and in any aspect, George having been supported during his lifetime, the land, upon his death, became freed from the condition, charge or supposed trust.

I have thus far considered this deed standing by itself. It is claimed, however, by the learned counsel for the plaintiffs, that exhibits A, B and C are so nearly cotemporaneous in time, and so far relate to the same transactions, that they must all be considered together. I cannot admit this. It is undoubtedly the rule that several instruments of the same date, between the same parties and relating to the same subject, may be construed as parts of one contract. (Jackson v. Dunsbagh, 1 Johns. Cas., 91; Stow v. Tifft, 15 Johns., 458; Jackson v. McKenny, 3 Wend., 233; Van Horne v. Crain, 1 Paige, 455; Hills v. Miller, 3 id., 254;Cornell v. Todd, 2 Denio, 130; Hull v. Adams, 1 Hill, 601; Howes v. Woodruff, 21 Wend., 640; Rawson v. Lampman,5 N.Y., 456.) I have cited these numerous cases to show how uniformly the rule is announced as applying to instruments of the same date. I can find no case where it has been applied to instruments of different dates or executed at different times. And the reason of the rule does not apply to such instruments. When parties execute several instruments at the same time, relating to the same subject, such instruments may be presumed to have had the same general object and to have been influenced and shaped by the same general intention. It cannot be presumed, in such case, that the parties at one and the same time had different and conflicting intentions as to the same subject-matter. But the same reason for the rule does not apply when the instruments are executed at different times. In this case, we have first inquired for the intention of the parties when they executed the first instrument, on the twenty-first day of April. How is any light thrown upon that question by the instrument executed on the seventh day of May? The parties may then have had a different intention, or they may entirely have abandoned the intention they had on the twenty-first day of April. I admit, however, that these two instruments are to be read together; not for the purpose of ascertaining what the parties intended by the first instrument, but for the purpose of seeing how far the first was modified by the second. And after we have ascertained the extent of this modification, all parts of the first instrument not modified are to be construed as if no other instrument had been executed. So the deed executed on the eleventh day of May may have been the result of some new intention, or prompted by some new consideration or inducement; it cannot afford evidence of what the parties intended on the twenty-first of April or the seventh of May. I have thus deemed it the proper course to consider each of the three instruments by itself, except so far as one is modified by another. But if we construe these three instruments together, as if they had all been executed at the same time, we must still reach the same result. Then we may hold the trust referred to in the deed to be the same mentioned in exhibit "A." There we find the whole estate, in language several times repeated, given to Abraham, his heirs and assigns, forever, charged with the support of George and liable to be defeated only upon the happening of one of the three contingencies mentioned in that exhibit.

The conclusion I reach, therefore, upon the whole case, is adverse to the plaintiffs, and, if I am right, it is not possible for them to succeed in any aspect of the case.

The judgment of the General Term and that entered upon the report of the referee should be reversed, and judgment ordered for the defendants dismissing the complaint.