Jackson ex dem. Wood v. Swart

Spences, Ch. J.

delivered the opinion of the Court.

The questions to be decided, are, 1st. Whether the deed from James Wood and Jerusha his wife to Joseph Wood, is void, as conveying a fee to commence in futuro ; and, 2d. Whether the reservation to Jerusha Wood of an estate for *87 lfe5 is valid and operative ? The consideration expressed in the deed, as between the grantors and the grantee, is 500 dollars 3 and the deed contains the words " grant, bargain, sell,” fee. 3 and, after describing the premises granted, are these words: “ It is understood that the parties of the first part reserve to themselves the use of the premises during their natural lives."

It appears that James Wood, the grantor, was solely seised of the premises, his wife having no interest therein, except an inchoate right of dower. The lessors are Jerusha, the widow of James Wood, he having died in possession six years since, and three of the children oí fimes Wood.

On the first point, there can be no doubt, that the deed operated as a covenant to stand seised, if the estate of the grantee, Joseph, was to take effect after the deaths of James Wood and his wife. It was expressly decided, in Jackson v. Dunsbagh, ( 1 Johns. Cas. 91 .) that a deed of bargain and sale, founded on a pecuniary consideration, to take effect in futuro, was effectual. This principle was again recognised in Jackson v. Staats; (11 Johns. Rep. 351.) and it is fully explained in 2 Saund. 96. n. 1., where the cases are referred to, and in 4 Cruise’s Digest, p. 185—193.

It has been insisted, that Jerusha Wood took nothing by the deed, in the event of her surviving her husband, on the ground that an exception or reservation in a deed, in favour ©f a third person, who had no title or interest in the land, is inoperative. The position that a reservation or exception in favour of a stranger, is ineffectual, is undoubtedly true. It is founded on the same principle, that upon a bargain and sale, a use cannot be limited to any other person than the bargainee. The deed in question cannot operate by way of an exception, or reservation, in favour of Jerusha Wood. (3 Barnewall & Alderson, p. 66. Co. Lit. 47 a. 4 Cruise, 46.) But it has effect and operation as a covenant to stand seised, and is within the principles adopted in Bedell’s case, (7 Co. 133.) and in Goodtitle v. Petto, (2 Str. 934.) In Bedell’s case, the facts were, that B. was seised, and he and his wife, in consideration of the natural affection and paternal love which he had to his sons, James and Michael, *88 and for their better preferment and advancement, covenant» "ed to stand seised of the premises conveyed, to the use of himself for life, and, after his decease, to the use of his wife for life j and, after their deaths, of one moiety to the use of one son, and of the other moiety to the use of the other son, in tail. The question was, whether any use arose to the wife, or not; and it was resolved, that if a man covenant to stand seised to the use of his wife, son, or cousin, it shall raise a use, without any express words of consideration ; and, upon writ of error, the judgment was affirmed by all the Judges of the Common Pleas, and Barons of the Exchequer. The case of Goodtitle v. Petto was adjudged on the same principle. Again; in Paget’s case, (1 Co. Rep. 154 a.) it was decided, that upon a covenant to stand seised, a use will arise to those who are within the consideration, though no use will arise to those who are strangers to it. It is scarcely necessary to observe, that in such a conveyance no technical words are required $ such as that the grantor covenants to stand seised, to the use of Jl., &c.; but any other words will create a covenant to stand seised, if it appears to have been the intention of the party to use them for that purpose. (Willes’ Rep. 676.) That it was the intention of James Wood, in the deed to which he and his wife were parties, to make provision for her in case she survived him, by securing to her the enjoyment of the premises during her life, is unquestionable. The deed, then, though-it is a valid one, will not take effect until after the death of Jerusha Wood; and the plaintiff is, therefore, entitled to recover on that demise.

Judgment for the plaintiff.