Warden v. Lyons

Opinion,

Mr. Justice Paxson:

The question in this case is, whether under the deeds reférred to in the special verdict, Kate Lyons, the defendant below, took a separate use estate, or an estate in fee simple.

The effect of a separate use is to withdraw the estate from the dominion of the husband: Thomas y. Folwell, 2 Wh. 11. An estate in fee excludes all qualification or restriction as to the persons who may inherit as heirs, thus distinguishing it from a fee-tail as well as from an estate which, though inheritable, is subject to conditions or collateral determination: 1 Bouvier, Law Dict., 649.

Andrew Lyons, the husband of the defendant, was at one time the owner of the property in question. While the title was vested in him, he united with his wife in a conveyance of said property to one R. J. Hemmick. The consideration of the deed was one dollar, and after the habendum was inserted this clause : “ In trust, however, for the said Kate Lyons and for her sole and separate use, the said party of the second part (Hemmick) to convey by good and sufficient deed to the said Kate Lyons the within described premises in fee simple.” Six days after the date of this deed Hemmick conveyed the premises by deed, in fee simple to Mrs. Lyons. Subsequently Mr. and Mrs. Lyons mortgaged the premises to the plaintiff below to secure the sum of $13,000. To a scire facias upon this mortgage, Mrs. Lyons (her husband being then deceased) interposed the defence that under the deeds referred to she had .only a separate use in the property. This defence was sustained by the court below, and judgment was entered for the defendant upon the question of law reversed, non obstante., veredicto.

It is plain that the object sought to be attained by means of these conveyances was to place the title in the wife. The deed from Lyons and wife to Hemmick imposed upon the latter two duties, viz.: 1, to hold for the separate use of the wife, and 2, to convey to her in fee. Both these duties were performed. The deed from Hemmick to Mrs. Lyons was an ordinary warranty deed in fee. There is not a word in it of a separate use, or any qualification of the fee whatever. We do not think it was intended that there should be. Lyons evidently wished to give the fee to his wife, but as Hemmick was the conduit through which the title was to pass, he provided against an incumbrance upon the title while upon its passage, by impressing a trust upon the face of the deed to Hemmick. It is true a mere trust without the’ separate use, would have prevented an incumbrance falling upon the title while it rested in Hem-mick. Conceding this, we still have the fact that, neither by the language of the deed nor by necessary implication, was Hemmick to impress a separate use in the conveyance he was to make to Mrs. Lyons. Had he done so she might well have complained that he had not properly executed the trust.

Aside from this we have the undisputed fact that both Lyons and his wife placed the above construction upon the deeds referred to. This is apparent from the fact that they joined in the mortgage in question. They evidently regarded the estate of Mrs. Lyons as a fee, or else they intended a deliberate fraud upon the plaintiff by giving him a mortgage they had no right to make. We cannot impute such an act to them, but on the contrary we prefer to hold that they intended to do just what they have done, and that was to place the title in Mrs. Lyons in fee.

The judgment is reversed and the record remitted, with instructions to enter judgment for the plaintiff below upon the verdict.