Stevens v. Dewing , 2 Vt. 411 ( 1830 )

Hutchinson, J.

after stating the case, pronounced th8 opinion of the court. — The charge of the county court, to which the defendant took exception, was, that, if the jury should find the conveyance from the plaintiff to Lamphier to have never been sealed, then to return a verdict for the plaintiff; but-, if they found it to have been sealed, to return a verdict for the defendant.

Though this charge seems to present but a single question, yet several distinct points, urged in argument, are involved in the decision of this.

The defendant relies upon the want of title in the plaintiff, as well as title in himself; and he first objects, that the premises in controversey are not sufficiently described, in said conveyance from Adams Stevens to the plaintiff, to vest any -title in him. The description is as follows, “ a certain piece, lot, or tract, of land in Sheldon; part of which is one half of lot No. 51, second division, and the other part is one quarter of lot No. 62, third division. Said lots join together in said Sheldon.” Reference is ' then made to the original grantee, and to the deed of the same land to said Adams Stevens; and it adds, “ containing about 100 acres.” Thte plain construction of this is, that the tract consists of half of No. 61, and a quarter of No. 62, lying together. If such lots lid together, there remains no difficulty about the description ; and that may be made to appear from testimony aliunde, Moreover, the case makes no mention that this point was urged at the trial, It either was not urged, or was obviated by evidence to the jury.

Again, the defendant objects, that the plaintiff was not bound to support said Adams Stevens and his wife; and, therefore, said conveyance is void. This objection is answered by reading the covenants in said conveyance. These covenants are suitably framed to bind the plaintiff to such support in the strongest manner possible.

A third objection raised is, that this instrument was never delivered. It appears to have been executed by both parties, and recorded ; and then placed in the care of a third person, for the mutual benefit of both parties. This was done instead of making two parts. The court adjudge this to be a sufficient delivery.

Again, the defendant objects, that this conveyance from Adams Stevens to the plaintiff is only a lease for years 5 and, therefore, that the lease to Lamphier, though without seal, but made with the assent of said Adams Stevens, and Lamphier’s deed to said Adams Stevens, operate together as a surrender of the first lease, and leave no title in the plaintiff.

Hence we are called upon to determine the character of this first conveyance. The granting words are, “ lease, let, rent, and confirm to said Martin, (the plaintiff,) and his heirs.” The duration is, “ for the full term of one thousand years, or as long ds wood grows or water runs.” And the covenants to the plaintiff for quiet enjoyment, fee. extend through the whole of said term of time. The matters to be performed by the plaintiff are to continue only during the life of the grantor and his wife. This conveys a fee in the use, liable to be defeated, during the life of Adams and wife, by a failure, on the part of the plaintiff, to perform the conditions, on his part to be performed. After that, the title will be absolute in the plaintiff and his heirs and assigns forever. If the term, “ one thousand years,” would make but a chattel interest, the term, “ as long as wood grows or water runs,” would render it perpetual. And, instead of applying to this the principle, that the first words govern in a deed, we must apply the principle, that the deed must be construed most strongly against the grantor. — See 4 Mass. Rep. 266, Clapp vs. Draper. There, a grant was made to a man, and his heirs and assigns, of all the trees and timber growing on a certain close forever, with liberty to cut and carry away the same at pleasure,, It was decided, that this vested an inheritance in the trees and the timber then growing, or which might thereafter grow, on the close, with an exclusive interest in the soil, so far as necessary for the growth and nourishment of the trees. The whole deed must be construed together, and most strongly against the grantor, where there is room for construction. — See Shep. Touch, 81-2. This deed, then, vested a fee in the plaintiff; and nothing appears in the case, that Adams Stevens had ever entered for condition broken, nor that there had ever been any failure on the part of the plaintiff, which Would give such right of entry.

Royce h Hunt, for plaintiff. Aláis & Davis, and Burt, for defendant.

The plaintiff’s title, being a fee, could not be conveyed nor surrendered, but by a deed properly executed. The question about the seal was, ¿therefore, correctly left to the jury. — See Shep. Touch. 306.

The instrument given by the plaintiff to said Lamphier carries in itself the idea of its being executed under seal. This shows the intention of the parties so to execute it, had it not been omitted through forgetfulness or mistake.

If the defendant has any adequate remedy, it must be by a bill in chancery to compel the plaintiff to execute such a conveyance as this would be, if properly sealed. As the case stands, there is no error in the judgement of the county court, and the same is affirmed.

Judgement affirmed.