Sloane v. McConahy ( 1829 )

By the Court :

This bond is not a grant, but a covenant. It contains none of the formalities which the wisdom of ages has settled as necessary to convey real estate. The covenant against incumbrance is an accidental phraseology, borrowed from the usual term in a common law conveyance, and can not, upon any principle, be construed into a grant. No acknowledgment appears upon the instrument ; and this is made necessary by statute, in order to constitute a complete deed of conveyance. Roads v. Symmes, 1 Ohio, 281; Lessee of'Johnston v. Haines, 2 Ohio, 55. But giving the conditions of this bond all the requisites of a grant, then the proprietor of the town granted, either to the commissioners of the county, or the inhabitants of' Wooster. If the legal right of entry is vested in the commissioners, the defendant can not justify the trespass. He has neither showed a license nor order from them, to enter for any purpose. Besides, the commissioners of Wayne were not in being at the date of the instrument; the grant would therefore be void. It is indispensable to the validity of a grant, that the grantee be capable of receiving it; that is, that he be a person in being at the time of the grant made. A grant to him or her who is to be the first child of T. S. or to his right heirs, he being living, is void. Shep. Touch. 235. The same principle will apply to the unincorporated inhabitants of the town of Wooster, as to their capacity to be grantees. The instrument is dated in 1811. The town of Wooster was incorporated in 1824. A grant to the inhabitants of Wooster, admitting they were .capable in law to take, would only vest the estate in joint tenancy in those who were actually such at the date of the grant. The tenancy could not be made to extend to others who, subsequently, became inhabitants. Upon the death of the inhabitants in esse, at the date of the deed, the right would either be in abeyance, or re-vest in the grantors. But the inhabitants could not be grantees, and a deed executed to them would be void. The authorities to this point are ^numerous and perfectly conclusive. 8 Johns. 301; 9 Johns. 73; 9 Mass. 419: Sugd. 388 ; Co. Lit. 3, a; 2 Com. Dig. 168. The inhabitants not being a corporate body, and being therefore incapable of taking an interest in land, by conveyance, at common law can not be cestui que use. Cruise, D, 413. If the county commissioners could be grantees, they could not be seized to the use of the inhabitants of Wooster. The facts and law arising upon them do not furnish a justification for the defendant. There must be a judgment for the plaintiff, according to the agreement of parties.