Ford v. Flint , 40 Vt. 382 ( 1867 )

The opinion of the court was delivered by

Barrett, J.

The plaintiff claims title in himself by virtue of said deed of Nathaniel Spear.. One ground of defense is that that deed created a conditional fee at common law, unaffected by the statute de donis, and that the entail was barred by the deed of warranty in fee of said Asenath to said Brown, and that Brown took an absolute title in fee under the last named deed. The plaintiff, on the other hand, claims that his mother took only an estate for life, and that on her death, he took in remainder, and is entitled to hold according to the form of the gift; the title thereafter to go to such persons and in such manner as the laws of'this State shall warrant. Hence arises the first question to be decided.

The conditional fee or estate tail, at common law, before the statute de donis, was created by a conveyance to the donee of an estate that would have been an absolute fee simple, were it not limited by the condition of issue being born, who, according to the form of the gift, were to take by inheritance fjom the said donee. In conformity with this idea, on the birth of the prescribed issue, such donee could convey an absolute fee simple, and thus bar the issue, as well as the reversion of the donor.

Of course the donee could not convey such absolute fee-simple, unless it had been vested in him by the form and effect of the gift, — • contingent at first, to be sure, upon the performance of the condition by the birth of the proscribed, issue. “ It was a fee-simple on condition that the donee had issue.” 2 Bl. Com. 110. By the gift the entire title passed from the doner, subject only to the possibility of reverter. During the life of the donee, the property and estate were vested in the donee, beyond all power of the donor to affect the character of the estate. Upon the birth of issue the absolute and unqualified disposition of it was in the donee; and if such donee made a conveyance of the fee, the grantee took such fee as against both the original donor and his heirs to whom the estate was limited. 4 Kent Com. 11 et seq. 4 Cruise Dig. by Greenl. 68 §§ 5, 6, 7. Co. Lit. 19 a (by Thomas, 1 vol. p. 507 et seq.) In Willion v. Berkley, Plowd. Rep. 233, Ch. J. Dyer said: “The fee simple vested in the beginning, though by issue the donee had power to a lien, which he had not before, but the issue was not the cause of having the fee, but the first gift.” On p. 250, “Further, as to the common law before the statute, if land had been given to a man and to his heirs of his body begotten, this was not taken to be a full and perfect inheritance until the donee had issue of his body. * * * * But (as I take it) it was a fee-simple presently before issue, but the having of issue made it more full than it was before; for after issue he had power to alien, and thereby to bar the issues and the donor,” &c., &c. In the margin it is said, herewith agree, 1 Finch, 100 ; 2 Ib. 121.

In the case before us, the deed, in the granting part, does not purport to convey a fee, either simple or conditional to Asenath, but only an estate for life. By the terms of the grant the estate in her would not be conditional at all. It would not depend on any contingency for its character, or as to her rights in respect to it. It was the same to her whether any of the prescribed after-takers should be born during her life or in existence at her death, or not. No fee of any kind having been conveyed to her, there was no quality of estate existing in her on which the birth or existence of any of the prescribed sons could operate to invest her with any different title or incidents of title from that specifically defined in the grant. If a conditional fee or an estate tail was created at all by the grant of the deed, it was created in the plaintiff, and not in his mother. It is in this respect like the case of Owen v. Smyth, 2 H. Bl. Rep. 594. This view would seem to be conclusive against the ground of defense now under consideration, unless upon the face of the whole instrument, by construction, the intent was manifest on the part of the said Nathaniel to create an estate tail, or conditional fee in said Asenath, and the instrument itself has the legal requisites for such a purpose. The granting part of the deed expressly gives the land to her during her life time, and to her eldest son living at her decease, and to the successive eldest sons as named. These are mere words of purchase, and not of inheritance. It is- conceded that, in order to constitute an estate tail, the land must pass from the original donee by inheritance to the next one entitled — that is, he must take as heir from her, and not as grantee from the party creating the estate, — that she must take and hold the whole estate under the deed with no limitation on its quality, except as affected by the restriction to the specific line of direct heirship.

"While it is further conceded that the words of the granting part of the deed would not create such an estate, for want of words of inheritance, it is claimed that resort may properly be had to the habendum, upon familiar rules governing the construction of such instruments, and that the word “ heirs ” therein supplies what is lacking' in the granting part of the deed, and shows that the designation of the oldest sons in succession is to be construed as equivalent to the expression, “ the eldest mail heirs of her body in succession.”' We assent to the propriety of the rules invoked, but fail to find them efficacious for the desired purpose. The meaning of the word “ heirs” is not confined to its technical import of a taker by inheritance. If .not affected by other language in the instrument, that sense, and a corresponding legal effect, would be given to it. But when used in connection with other language describing and designating the same subject, the whole is to be taken into consideration, and a meaning is to be assigned to the word according to what, shall appear to be its intended sense, within the scope which both law and use have rendered it susceptible of. Now, in the habendum,, “ to her the said Asenath Ford, and* to her heirs, as aforesaid,” &e., is the expression. This shows that the grantor did not intend to change, by enlargement or otherwise, just what is .imported by the language in the granting part of the deed, and that heirs” was used as descriptio personarum — as a comprehensive single word — to mean the same thing as, and as a substitute for, the specific designation in the grant of the persons to take after the said Asenath. See remarks of Lord Thurlow, in Jones v. Morgan, 1 Bro. Ch. Rep. 219. It does not import that she or they were to take in any different character, or any different quality of estate, from the character assigned, and the estate created, by the words of the granting part. She was to hold as aforesaid, — her heirs were to hold as aforesaid; she to hold during her lifetime, — her eldest son living at her decease to hold next, and so on. Under this construction the plaintiff was not to take by inheritance from his mother, but in remainder after her special estate had terminated. Wherefore, the learning adduced in the argument as to the statute ie donis, and the barring of entails by fine and common recovery, as affected by the constitutions, statutes, and adjudications in this and other states in the union, need not to be further considered in this case.

II. In view of such construction, for the purpose of defeating title in the plaintiff under said deed, it is claimed that the defendants are entitled to impeach its validity, for reason of its non-delivery by the plaintiff’s grantor.

■ Directly upon the death of said granto r his estate was settled in due course of law, and distribution was made of it between his several children, and therein the parcels conveyed by said deed to Asenath, and a parcel conveyed by a like deed to her brother Jacob, were appraised, and reckoned as advancement to each of them respectively, and they were made equal to the other children by apportioning the other real estate of their father between all his children in parcels to make the value to each equal.

Each took and held the respective parcels under said deeds, and the apportionments thus made by the probate court.

Now, it will be noticed that Asenath and Jacob, to whom said deeds of Nathaniel had been delivered, did not take the land described in said deeds under and by virtue of said apportionment, but under the deeds themselves, which were treated by all the parties interested in Nathaniel’s estate as having already taken effect, to invest said Asenath and Jacob with the title to said respective parcels described therein. Advancement implies property already vested in, and owned by, the party advanced. The three and one half acres apportioned to each of them, and the larger parcels apportioned to the other brothers who had not been advanced, were held by each respectively by virtue of and under said apportionment.

Thus their respective rights accrued, and as between themselves, have always been asserted, recognized, and acted on.

It is clear then that it would not be allowable far Asenath herself to deny the valid delivery of said deed to her. She treated it, and all interested treated it, as giving her a valid title from the time of its coming into her hands; and she took possession under it, and held such possession for nearly a year before said apportionment by the probate court was made, — she having taken possession in the spring' of 1826, and said apportionment not having been made till the 15th of March, 1827. Her title then to the land in question clearly accrued to her under and by virtue of that deed, and she held and occupied under it till 1829, when she conveyed by deed of warranty in fee to Brown, who entered and occupied thereunder till he conveyed by like deed; and the land has passed by like deeds successively to the defendants. -Neither she, nor Brown, nor any in the chain of title, nor the defendants, have ever claimed by virtue of any other paper title, nor by any other title, only such as may have been acquired by possession under color given by said deeds and the defendants now claim, as one ground of defense, by a title acquired by adverse possession under color of title given by the deed of Asenath to said Brown.

Now it is clear that that deed of Asenath to' Brown conveyed only the title and quality of estate that she had, and the deed, by which such title and estate were created in her, being on record, executed with all due formality, would be notice to all the world of the estate which she held, and could, convey, and so would preclude any ground to a subsequent grantee for asserting any fraud upon him in this respect, so far as the' import and apparent validity of the deed is concerned, whatever might be his rights upon the covenants in the deed of warranty taken by him. By treating the deed of Nathaniel to Asenath as valid to secure to her, and to them, all the title and estate that it purported to convey to her, and through her whole life, from 1826 to 1865, having held and enjoyed the premises under the right which she thus acquired, as against all persons interested in said estate, it would seem not allowable now for the defendants to assert the invalidity of said deed for want of valid delivery, against a party entitled, by said deed, to the premises as an estate in remainder, upon the termination of the life estate created in Asenath by said deed. In thus holding upon the case before us, we are not to be understood as deciding the question very much discussed in the arguments of counsel, and ruled in many of- the eases cited, whether the defendants might not set up a title in said Asenath superior to, and independent- of, the deed in question, In this case no such title .is averred or attempted to be shown. We, therefore, leave that question untouched.

III. A point is made that said action of the probate court should have no effect, for the alleged reason that the record produced does not show that it was taken in compliance with the requirements of the statute. The record does not show that anything was done contrary to the requirements of the statute. The most that can be justly claimed is, that it fails to show fully that everything was done that the statute required. The things which the record states to have been done were such as the statute required, and the presumption is that they were done in a proper manner. It states enough to warrant the presumption that all the things were done which the statute required. The language of Judge Williams,.in Giddings and Wife v. Smith, 15 Vt. 344, is applicable in full force to the subject as now presented: “If there was any apparent irregularity in 'his proceedings, which, however, we do not perceive, we should think that at this distance of time, the regularity of the previous proceedings of the court should be presumed.” In many subsequent «ases the same view has been sanctioned and applied.

It must be held that said Asenath’s advancement was by giving her the estate created by the deed referred to in said record, which is the same deed, and of the same land now in question, and that it was estimated according to its legal quality, viz: as a life estate in her, and, in that view, it was ascertained how much she was entitled to .out of the other real estate, which was duly set out, and she held the whole accordingly.

IV. The claim that the defendants have acquired a valid title as .against the plaintiff by adverse possession, we think, cannot be maintained.

The exceptions shows that Brown and his grantees entered under the deed of Asenath to Brown, and that they claimed under that deed throughout. The defendants gave that deed in evidence to show ■color of title, which is a technical form of saying that the party claims to have entered and held under the deed thus presented. The ideals .conclusively excluded that Brown or any of his grantees ever claimed to hold in any other right than that created by said deed, .and by the deeds in succession from Brown tó the defendants. The defendants, having no right but such as has accrued to them by virtue of the title existing in Asenath Ford, and a possesion taken and held under her, by taking possession, admitted her right as it existed and was shown by the record, and cannot now be permitted to ignore and repudiate the character of the possession which they thus held, and now to assert, as giving them a title against the plaintiff, a possession without right and as mere trespassers. Brooks v. Chaplin, 3 Vt. 281; Adams on Eject. (Ed. 1846) 47, et seq. and notes. Possession under such a title was not adverse to the plaintiff, first, for the reason that it was perfectly consistent with his title and right under the same deed from which said Asenath and her grantees derived their title. This in no manner touches a question that might arise in case the defendants had paper title derived from a source disconnected with, and independent of, the said Asenath’s title and deed, to which their possession might be legitimately referred. Secondly, for the reason that the plaintiff could not assert his title as against the possession of the defendants, during the life of his mother.

V. As to betterments, sec. 21, ch. 41, Gen. Stat., was obviously designed to put the plaintiff’s right in respect to the basis of his damages arising from mesne profits, upon the same ground as if no betterments had been made that the defendant would be entitled to be allowed for. Upon this rule and measure of damages, it would not be congruous or proper to subject the plaintiff, under the general issue, to a reduction of damages on account of improvements that must be excluded from consideration by the jury in ascertaining the amount of mesne profits as a ground of damages.

In respect to improvements for which the defendant may properly be allowed, the statute provides for a distinct proceeding, in which the matter can be brought to a distinct issue, and be tried on what legitimately bears on the subject. There are many things and questions that appertain to the subject of betterments, that do not appertain to the material matters put in issue and open to proof under the plea of not guilty. If the defendants have any right beyond that accorded by said sec. 21, they must assert it by the means provided for that purpose in other parts of the same chapter of the statutes.

Judgment is affirmed.