Taylor v. Mitchell

Mr. Justice Trunkey

delivered the opinion of tne court,

William Carson s deed, dated 5th August 1862, is so far from being testamentary that it contains his covenant not to devise his real estate. The sole question is, whether that covenant shall prevail against his will. A valuable consideration is set forth, namely, a conveyance, for the benefit of said William, by John Carson and Nancy McFadden, of their title and interest in a tract of land which they inherited from their mother; and, for that, said William covenanted, “ that I shall not, nor will I by deed, mortgage, sale, judgment, devise or otherwise, prejudice or interfere with the rights of the said John Carson and Nancy McFadden, as my heirs-at law, as to their free and equal share in all my real estate, but the same shall remain free and uncontrolled, to be divided equally amongst all my legal heirs, including the said John and Nancy, at my decease.” The plain meaning is, that for a valuable consideration, the covenantor agreed to hold his real estate unencumbered, free, and uncontrolled, to be divided amongst his heirs. Had he contracted, for same consideration, to sell his land and give possession at his death, and make provision for conveyance, after his decease, to such persons as should be his heirs, the intent would not be more obvious. For purpose of reaching the like end he covenanted to stand seised to the use of his heirs.

John Carson and Nancy McFadden were children of William, who also had two other children by his second wife. That natural love and affection of the parties to this deed, for the other children, likewise moved them to so stipulate, is manifest from the relationship; and were such motive necessary, it is not essential that it be expressed: Fisher v. Strickler, 10 Barr 348. Little need be predicated of this farther than showing one object of the covenantees was prevention of the very thing attempted upon the plaintiff.

William Carson died seised of the land, and the devisees stand in his shoes. They are not innocent third persons. Had he died intestate his heirs could not violate the contract; no matter if the deed is not, in strictness, within the statute of Uses and Trusts, 27 Hen. 8, and the conveyances which sprung up in consequence thereof. The consideration was not money, necessary to a bargain and sale, nor blood or marriage, necessary to a covenant to stand seised to uses; but it was a valuable one, and between the parties and privies, sufficient to support a contract to hold the land for use of his heirs, their possession to commence at his death. Each party, equitably interested, can recover his portion, in his own name, and is not bound to resort to a personal action for damages.

Judgment reversed, and judgment is now entered for the plaintiff upon the verdict.