Doe ex dem. West v. Roe

By the Court.

Benning, J.

delivering the opinion.

The Counsel for the plaintiff in error requested the Court •to eharge, amongst other things, this:

That the deed made in March, 1847, by William Hancock to Daniel Methvin, the assignee of Kilpatrick, under the bond made by William Hancock in 1828, is not void for maintenance under the Statute 32d ZZenry y'UZ. if the Jury believe the bond was duly executed, assigned and the deed made to Methvin under the proof.”

This the Court would not charge, but charged the contrary of it. Was that right ?

It seems that at the time when William Hancock made the bond, if he was not in the possession of the land, no one was; and that at the time when he made- the deed to Methvin, in performailce of tlio condition of the bond, Holt was in the possession of the land, and was holding it under a title, not derived from the William Hancock who was the obligor in the bond, but from another William Hancock.

The charge of the Court amounts to this: that the deed of Hancock to Methvin is contrary to the 82d Henry 8th, even, although, at the time when the deed was made, Hancock had the complete legal title, and Methvin the legal right to compel Hancock to transfer that title to him.

The question, therefore, becomes this : if the person who is the true owner of land makes a deed to it at a time when the land is held adversely to him, is the deed within the 32cZ Henry 8, even although he makes it in the-performance of' the condition of a bond of his, executed by him at a time when the land was not held adversely to him ?

It is admitted by the Counsel for the defendant in error, that the bond of. Hancock was, in its creation, not contrary to the Statute. And it is not insisted by them, that any instrument which, in its creation, is not in conflict with the Statute can, in the course of its after existence, get in conflict with it. Therefore, it is not insisted by them that the bond was first, or last, or at any time, in conflict with the Statute.

The Counsel for the defendants in error, then, do not insist that the bond stood in conflict with the Statute at the time when the deed was executed, in performance of the condition of the bond. All that they insist upon is, that the making of the deed was in conflict with the Statute; and their reason for insisting upon this is, that at the time of the making of the deed, the land had come to be in the possession of one who was holding it adversely to the maker of the deed.

And this amounts to maintaining, that the Statute sanctions the bond, while it condemns the deed.

But if the Statute does that, it is contradictory of itself. Eor what is the bond? It is something which gives the obligee a right to have from the obligor a deed — this very deed. Whatever, therefore, sanctions the bond, sanctions that right. And whatever sanctions the right to have a thing, must sanction the thing when had. Therefore, if it be true, that the Statute sanctions the bond, it must be equally true, that it sanctions the deed. But if it sanctions the deed, and also condemns the deed, it is contradictory of itself. Let us, for the present, admit that it is thus contradictory of itself.

Now when a Statute is contradictory of itself, one of the contradictory parts has, of necessity, to be disregarded; and in such case, which part it shall be, is the only question.

In determining such a question, there are some rules which may be safely followed.

If of the two parts, one be penal and the other not; or if one be such, that it might so operate as to deprive a person of a right, fairly purchased and fully paid for, to the benefit of a mere wrong-doer, and the other such that it could not so operate; or if one should go beyond the objects of the Statute, as declared in the preamble, and the other should not, but should fall within those objects; in all these cases it is the former, rather than the latter, that is to be disregarded.

This is too self-evident to require proof. We may proceed, therefore, to apply it.

The part of the Statute that would condemn the deed would unconditionally impose a penalty on Hancock, the donor, and would conditionally impose one on Methvin, the donee, a penalty equal to the whole value of the land; the part that would sanction the deed would not impose any penalty upon any body.

The part that would condemn the deed might go further— it might deprive Methvin of the land itself, although he had fairly purchased and fully paid for it. This may be thus! shown: The entire obligation which Hancock’s bond imposes.' on him is such, that it would be satisfied by his merely má~ ing a deed for the land to Methvin, the holder of the bond. The bond does not impose on him the additional duty to put Methvin in possession of the land, or to lend Methvin his name to be used by Methvin in putting himself in possession of it. And the bond is all that they have put between themselves. This being so, whatever would render the deed, -if made void, might deprive Methvin of the land, for it might put him in a condition in which he would have no means of getting possession of the land. Will it be said, that a Court would require Hancock to lond Methvin his name in ejectment to recover the land? But every time a Court does anything of that sort, it strains the law, and does so only to. accomplish, in a roundabout way, what would be accomplished in the direct way, if such a deed as that in question were-allowed to be valid. I say, then, that unless some Court interposed in this stronghand mode, the annulling of this deed might deprive Methvin of the land itself; at least, it would put him at the mercy of Hancock.

But of the two contradictory parts, the one that would sanction the deed, would confer on Methvin the means of securing the enjoyment of the land ; the deed, if valid, would insure him the land.

Of those two parts, then, the one that would condemn the deed, would inflict a penalty on Hancock, and might inflicr one on Methvin, and might, in addition, deprive Methvin of the land itself, though he had fairly bought it, and from one who had the right to sell it.

And be it observed, that this last effect would be, strictly, ex post facto.

But such effects as these, are entirely beyond the objects of the Statute, as the objects of it are stated in the preamble. As there stated, those objects are, “ The due and just ministration” of the laws, “ and the true and indifferent trials of such titles and issues,” as are to be tried.

And the great effect of the due and just ministration of the-law, as well as of true and indifferent trials is, to give every man the enjoyment of his rights.

The bond that Methvin held, gave him the right to have a conveyance of the land made to him by Hancock.

If, therefore, we say that such a conveyance, when made,, is valid, we say that which will subserve the objects of the-Statute. If we say that it is void, we say that which will not subserve those objects.

Of the two contradictory parts of the Statute, therefore, the part which would make this deed valid, is the one which must govern.

This is the result at which we arrive, if we admit that the Statute is contradictory of itself — one part of it saying that the deed is void — another part that it is valid, if we admit that the Statute condemns the deed while it sanctions the bond.

But the Counsel for the plaintiff in error, does not admit this; he contends that the Statute, whilst it sanctions the bond, does not, if taken according to its true intent and meaning, condemn the deed.

And in support of this position, besides referring to the part of the preamble above quoted, as evidence to show that the true intent of the Statute could not have been to produce any effect by which an innocent man might practically lose the enjoyment of what he had fairly purchased and paid for, he relied on this passage, from 1 Plow. 88: “And therefore, the Statute of Articuli Super Qhartas, cap. 11, ordains that no officer nor any other, (for to have part of the thing in the plea,) shall talcs upon him the business that is in suit; yet, if the tenant, pending aprceeipe quod reddat against him, infeoffs his son and heir apparent, this shall be out of the danger of the Statute, as it is taken in 6 Ed. 3; for the son could not bo said a maintainer to the father; but on the contrary, he is bound to aid his father as often as he can.” And on this proposition, from 5 Com. Dig. “Maintenance,” •(A. 8,) “But it will not be champerty if A contracts with B. for a" manor for which B is afterwards impleaded, and pendente lite B conveys it to A.”

These authorities showed, as he contended, that whatever-is done in the performance of a duty or of an obligation, is-not within such a Statute as this.

There are some- other authorities that countenance this-, view.

Thus, it is not maintenance “ if a lessor pays -fees or maintains the suit for his lessee in ejectment;” or, “if a landlord sues in the name of his tenant to try a right,” or “ if ainortgagee not a party in a suit, advances money to support the title.” (5 Com. Dig. “Maintenance” (B.)

In all of these cases there is a duty, or at least a right, to - maintain the suit; and it is, for that reason, no doubt that it was decided that the cases were not within the intent of ‘ the Statutes against maintenance.

There are other cases more analogous in their facts, if not in their principle, to the present case; but they are “ American” cases. In some of the States, it has been held that a: deed made under just circumstances, as those under which this was made, was good. I merely refer to some of those-cases, not feeling at liberty to place much reliance on them. I refer, then, to 10 Humph. 92; 10 Yerg. 12; 7 do. 308; 1 Johns. Cas. 85; 7 Wend. 377.

If the proposition contended for by the plaintiff'in error,, viz: that whatever is done in the performance of a duty or of an obligation, is not within the Statute, then this deed, was not within it, for this deed was made in the performance-of the condition of a bond.

Suppose, however, that when Hancock made this deed he was under no previously existing obligation to make it ?' That the deed, in that case, would have been within the Statute, seemed to be regarded by the Counsel for tho defendant in error as too clear to admit of a doubt. And yet, according to the latest English decision on the subject that I have seen, tho deed would not have been within the Statute.

Tbe head note of the ease in which that decision was made, is as follows: “WM died leaving two sons, who died without issue. The survivor of them devised his estate to his wife for life — remainder, to all and every the children of Richard E and M P, who should be living at the time of his wife’s, «death. There were living at her death nine children of R E and M P. Of these, two during her life, and while their ■estates remained contingent, had levied fines stir conusance ■de droit come ceo of their shares. In April, 1824, A B entered upon the lands comprised in the marriage settlement, and kept possession; and in May, 1824, all of the children of R E and M P, by' lease and release, conveyed the lands comprised in the marriage settlement, in given proportions, ■to a purchaser: Held, that the children of R E and M P might convey their interests without having first made any -entry into the land, although A B was in possession.” I re¡mark, that A B was thus in possession, claiming as heir-at-law, and that this claim was entirely in opposition to the claim of the plaintiffs. His possession was, therefore, adverse to their claim, if the possession of Holt was adverse to- the claim ofMethvin.

This case seems to have be.en most elaborately argued ; it involved several important points.

Speaking on the point in question in our case, the Justice delivering the opinion of the Court says : “ There, is no authority to show such a conveyance to be inoperative. In Co. Litt. 49, a, it is said: “if the feoffor be out of possession'",' a fine, recovery indenture of bargain and sale enrolled, or other conveyance, does not avoid an estate by wrong.”."It . -does not say the conveyance is void. But what estate had the defendant here ? The remainder-men were entitled to treat him as having an estate by intrusion, for the ■ sake of the remedy; but it does not lie in his mouth, as against them, to say he had any estate. What are the facts ? On the I9th of March, 1824, Peggy Martin, the tenant for life, died. Was any one then in possession ? The case does not state the fact. Did any of the remainder-men enter, or any person on their behalf? The case, as to that, is silent. Some time in April, non constat when, the defendant entered and began to plough the fields. This was objected to on the part of Bruñe, but not by the persons in whom the legal estate' was vested. But did Bruñe know it ? Did Coode -or any one of the remainder-men know it ? Non constat that they did. Had the sale been of a pretended title only, the case would have been within the operation of the 32 H 8, c, 9. But to bring a case within that Statute, the seller must have' a pretended right only, and the information must aver that it is a pretended right only,.for that is the point of the action. (Rex vs. Barnes, Cro. Cas. 233; 1 Hawk. c, 86, s, 10; Dy. 74.) This was a sale, not of a pretended but of a valid title, -where the possession had gone with the title until within’ two months of the sale, and there had been no act of dispossession until within a much shorter period. It has been argued, that the conduct of the defendant amounted to what the law considers an intrusion ; and that at the time of the conveyance of May, 1824, the defendant was in the land as an intruder. But what does the law consider an intrusion ? Not a mere wrongful entry into possession, (unless the rightful owner chooses so to consider it-,) but a wrongful possession of the freehold; and what Lord Ellenborough lays down in William vs. Thomas, (12 East, 155,) as to disseizin, applies also to the case of intrusion, both equally ousting the right owner, not from the possession merely, but from the possession of the freehold. He there says, “Disseizin was formerly a notorious act, when the disseizor put himself in the place of the disseizee as tenant of the freehold and performed the acts of the freeholder, and appeared in that character in the Lords’ Court'.’'’ But what act of notoriety is here stated to have been done by the defendant as claiming to put himself in the place of the rightful owner? At most, he was only in possession six weeks. It appears to me that he had no such estate by wrong, as to prevent the remainder-men from making a valid conveyance.” This is,the language of the Justice — Mr. Justice Bailey.

The possession of the defendant in this éas¡á$ whether it was adverse to the title of the remainder-bleb or not, was ■precisely such a possession as is the possession Of the defend-ant in our case. And the decision is, that a dfe’ed made in ■the face of such a possession, and made,- too, when there existed no obligation on the makers of it to- make it, is hot within the Statute.

[1.] On the whole, the conclusion to which vib come is, that a deed for land, although it is made at a time when the land is held adversely to the maker of the deed, is not within the Statute of the B'ld Henry VIII. if it is made in the performance of the condition of a bond executed by the maker of'tho deed at a time when the land was not held adversely 'to him, and if he is the person who had the title to the land.

And consequently, we think that the Court below should, 'with respect to the point now under consideration, have given the charge which it was requested to give by the plaintiff in -error, instead of the charge which it gave.

There are other questions of some importance in this case, and particularly the question, whether the Statute of the 32d Henry 8 is in force in Georgia. I doubt whether ii is; and perhaps I am not the only member of tho Court who so doubts. The conclusion announced proceeds, however, upon the assumption that the Statute is in force in Georgia. But, as one member of the Court is absent, none of these ■ other questions aro decided. The question which is decided, is a leading one in the case ; and the decision of it may, per-haps, be sufficient for a final determination of the case.