Defraunce v. Brooks ( 1844 )

Per Curiam.

The Judge made a palpable error in applying the rule which requires an express limitation to heirs in a fee-simple conveyance of the legal estate to an executory agreement, which is a conveyance only in equity. This rule, purely technical as it is, and founded in a policy which has disappeared with the feudal system, from which it sprung, is relaxed in many cases even at law.. In executory contracts, equity supplies words of inheritance, and implies a fee where the consideration evinces that not less than a fee was intended. These contracts, like a will, are interpreted so as to give effect to the intention. In Dearth v. Williamson, (2 Serg. & Rawle 498), a covenant to make a lawful deed of conveyance was understood, from the nature of the transaction, to be a covenant to make a good title. On the same principle, a covenant to divide a tract by giving one of the parties a portion of it in recompense of an improvement, must be deemed a covenant to give it out and out. Improvement is a permanent benefit, and compensation of it follows its nature. What is the value of an estate for life in wild land ? Next to nothing. Agreements of compromise, for the sake of repose, are necessarily perpetual where their duration is not limited expressly or by implication. The owner of this title agreed to give a part of the land; and he agreed to give it as he would a chattel; of course he agreed to give it in fee-simple.

Judgment reversed, and a venire de novo awarded.