Lancaster v. Dolan

*244 The opinion of the court was delivered by Gibson, C. J'.

Tacy Prior, being seised of a moiety of the premises, executed a .conveyance to trustees, by which she limited a moiety of her moiety, to her mother, Mary Berrien, for life, and the residue, together with the remainder, after the death of Mrs. Berrien, to her own separate use for life: the remainder in fee to such person as she, by any writing in the nature of a will or instrument under her hand and seal, and executed in the presence of two credible witnesses, should designate and appoint; in default of such appointment, to her issue, if more than one, equally, in fee; in default of issue, to her brothers and sisters in fee; and in default of brothers or sisters, to her right heirs on the part of the mother, in fee. She married Mr. Rogers, and with him, executed a mortgage to the plaintiff of the entire moiety; on which it was sold' and purchased by him at sheriff’s sale. The questions-which arise, are:— 1. Whether the conveyance is void by the statute 27 Elis, as regards the estate limited to Mrs. Berrien: 2. Whether Mrs. Rogers could dispose of the estáte limited to her own separate use, without .a power specially reserved: and, 3. Whether the mortgage was an effectual execution of the power as regards this remainder.

It must be admitted, that a mortgagee is a purchaser within the intent of the. statute. Chapman v. Emery, (Cowp. 278,) is in point; and whatever may have been the character of the.plaintifforiginally, he has become a purchaser to every intent, by taking the thing pledged, in satisfaction of the debt. The question then comes to this: Shall we follow the English judges in holding every voluntary conveyance void as to subsequent purchasers,' or interpret the statute anew, in reference to the circumstances and condition of our own country? Had the English construction been established before the American Revolution, although it is by common consent, agreed to be harsh and repugnant to natural justice, I would, in parity of circumstances, submit to'it on the ground of authority. . Whether it was so established, has been discussed by Chancellor Kent, in Sterry v. Arden, ( 1 Johns. Ch. Rep. 266 ,) and Mr. Justice Spencer in Verplank v. Sterry , (12 Johns. Rep. 553,) where the cases are collected and so minutely examined, as to leave no room for a review of them here. The conclusion of the Chancellor is, that “ the late cases have declared no new doctrine, and have only followed ■the rule as they found it long before settled by a series of judicial decisions of too much authority to be there shaken.” Mr. Justice Spencer, on the contrary, thinks that the authorities prior to the Revolution, “are in weight and number decisively adverse to the doctrine which now prevails in Westminster Hall.” In this, the learned judge undoubtedly asks too much. But he might have conceded much without endangering the argument; for Lord Ellenborougii, oh whose- opinion the Chancellor particularly relies, goes no farther than to say that “ the weight, number, and uniformity *245 of the authorities” (in favour of the modern doctrine,) “ do very much preponderate.” As to number and uniformity, those collected by him, stand in the proportion of nine to eight; which certainly shows no great preponderance; and the four added by Chancellor Kent, are altogether insufficient to satisfy us that the question had been put at rest, even though some of the authorities on the other side, may, as he alleges, have been but dicta. The whole mass evinces a restless and an unsettled state of the professional mind both on the bench and at the bar; and although the weight of authority undoubtedly inclined in favour of the modern doctrine, it could with no propriety be considered as established at the declaration of our independence, the period material to the question of its recognition here. Nothing but an uninterrupted series of authorities established by common consent, ought to sustain a principle on which no titles depend, and which, in its origin, is admitted on all sides to have been erroneous and unjust. The statute is undoubt-' edly in force here. It does not, however, in terms declare voluntary conveyances to be void; but only such as are made for the “intent and .purpose to defraud and deceive such persons as shall after-wards purchase.” The intent and purpose were consequently left to the judges, some of whom shortly afterwards began to consider every voluntary conveyance fraudulent without regard to the truth of the case. In Cadogan v. Kennet, (Cowp. 434,) Lord Mansfield .expressed an opinion that the common law, as it is now universally known and understood, would have attained every end proposed by the statutes of Elizabeth. It would have done so undoubtedly; but by a different process, it being a favourite maxim of the common law that fraud must be proved and not presumed. It is evident that the judges were led to carry the construction beyond the maxim, by motives of policy which, I submit, have no place here. Previous to the .fourth year of Queen Anne, there was no provision for registering conveyances in any part of England; and they are registered only in Yorkshire and Middlesex at this day. It is evident that where conveyances took effect according to priority of date without regard to notice, gifts afforded extraordinary facilities to fraud, in comparison with conveyances for a valuable consideration, the existence of which, in cases of controversy, could be shown as explicative of the transaction. It is, therefore, perhaps not strange that the judges cut the matter short by declaring all voluntary conveyances void, instead of embarrassing themselves with questions of notice; especially as the equity of the donee who paid nothing for the estate, might, under any circumstances, seem unequal to that of a purchaser who had paid a fair price. With us the case is entirely different. The act of 1775, requires all conveyances to be recorded in six months; and declares that “ every such deed and conveyance which shall, at any timé after the publication hereof, be made and executed, and which shall not be proved and recorded as aforesaid, shall be adjudged fraudulent and void *246 against any subsequent purchaser or mortgagee for valuable consideration, unless such deed shall be recorded as aforesaid, before the proving or recording of the conveyance under which such subsequent purchaser or mortgagee shall claim.” This, it will be perceived, is predicated without distinction as to consideration: and it gives rise to an irresistible implication in favour of the converse of the proposition—that every conveyance, without exception, which is thus recorded, is effectual against subsequent purchasers and mortgagees’. It seems to me the question might be safely rested here. To say the least, it is expressly established, that conveyances shall .take effect, not according to priority of date, but of record notice. Title is made a matter of record, and negligence is justly imputable- to every one who purchases without having searched the proper office. Such a purchaser can pretend to no equity against one who has done what the law. requires, to put him on his guard. It is admitted that a voluntary conveyance is good between the parties; and it isa common principle of equity, that an assignee with notice, must abide by the case of the assignor. But the pretended equity of a subsequent purchaser with notice, even as against a volunteer, would spring from an act, the consequence and design of which would be to enable the donor to cheat the donee. The purchase would be an act.of collusion, and all the fraud would be on the side of the purchaser. The palpable injustice of this has drawn from the English judges an expression of regret, that voluntary conveyances had not been sustained ágainst purchasers with actual notice. With them a distinction between actual and constructive notice might be proper: with us, where it is the fault of the purchaser himself, if he have not actual notice, there is not, and there ought not to be, a difference. Such a purchaser is justly chargeable with positive negligence, and would be chargeable with positive fraud, were the consequences to fall on any one but himself. An unregistered conveyanee is to be postponed without regard to its consideration, no distinction being made by the terms of the act; and there is no reason for postponing a registered voluntary conveyance, when untainted with actual fraud, that would not equally attach to a conveyance for valuable consideration. The injury to the donee would be as great, although as he gave nothing for the estate, the hardship would be less. Still there would be a hardship, the difference even in this respect, being only in the degree.

As therefore the matter is res integra here, we are at liberty to interpret the statute according to the dictates of justice and convenience: at all events, its construction must bend to the provisions of our own statutes; and we are consequently of opinion, that the estate limited to Mrs. Berrien, is unaffected by the subsequent mortgage.

In consequence of the death of Mrs. Rogers, since the trial, the question which respects the estate limited to her separate use, although exceedingly important in its principles, involves no more. *247 at present than the costs of the action. The conveyance is in trust1 “to permit her to use, improve, occupy, possess, and enjoy; and to receive all and singular the rents, issues, and profits.” A use-thus limited to any other than a married woman or feme in contemplation of marriage, would be executed; but it is immaterial whether the trust be to pay a married woman tlie profits, or to permit her to receive them, it being necessary to a separate provision that the legal estate should remain in the trustees, to prevent the husband from taking the profits and defeating the very object of the conveyance. (1 Saund, on Uses, 197.) The estate of Mrs. Rogers, therefore, is a trust, and without any power of disposition being annexed to it in the deed. It has been pressed in the argument that such a power is an inseparable incident of the ownership. Nothing in the law is more to be deprecated, than those decisions in which the right of a cestui que trust to dispose of his estate, has b.een recognised. Every attempt to secure a provision to a spendthrift child must prove abortive, while the trustees are bound to follow any disposition of it which he may make. It is still more unfor-1 túnate that, as regards their separate estates, femes covert have been | regarded in pquity as femes sole. It has been justly remarked, that * if the principle be pushed to its extent, a married woman who has trustees, will be infinitely worse protected than if she were left to her legal rights. There are instances of wives having been coaxed or bullied out of the protection provided, even at the instant when the settlement was before the Court of Chancery. Ought we then to follow this principle farther than our own decisions have carried it? The English decision's, since the declaration of our independence, have unsettled every thing.- In some it has been held that the feme may exercise absolute dominion without an express power in the conveyance; in others, that she can exercise no power at all; and to this complexion they will perhaps come at last. But it is agreed on all hands, that her power is not to be extended beyond her personal estate and the profits of her land. She has not in a single instance been permitted to lay her hands on the inheritance. There is, indeed, no ease in which the question involved the exercise of a power over her own life .estate; but if her power does not comprehend the fee when she is the owner of it, it is not easy to understand how it can comprehend'a less estate. It has been held to extend to copyhold, because the estate can be surrendered only by her act; and as she is exclusively the tenant, and the husband’s authority is suspended, it seems there is no objection to her act in the court of the manor. But there is no instance of her having been i permitted to dispose of freehold, except in pursuance of the terms ] of the trust, or by way of power over a use. Peacock v. Monk, (2 Ves. 190,) is express to the point. An agreement to dispose of the profits of her real estate, has been executed in equity; but in a later ease, the Court of Chancery has refused to enforce a security on rents and profits under similar circumstances. Here, however, the mort *248 gage was not of the profits, and it would be asking too much to require us to treat it as an agreement contrary to the meaning of the parties.

But, it appears to me, the trust in favour of Mrs. Rogers, was intended to be unalienable.. Although the distinctions on this head /are justly obnoxious to the charge of subtilty, there is no doubt that I the intention, where it is manifest, must prevail, although it be 1 evinced by less than an express clause. Such an intention has been collected from very slight circumstances, such as a contingent interest in the wife after her husband’s death; or a direction to pay the profits into the respective hands of the testator’s sisters, as long as they shall live. Here the trust is expressed to be “ for the tersonal support and comport of the said TacyN a clause more clearly indicating an intent to prevent alienation by anticipation, than any to be found in the cases in which the exception prevailed; and the estate of Mrs.' Rogers would therefore be unaffected by a rigid application even of the English cases.

In fine, notwithstanding thé case of Newlin v. Newlin, ( 1 Serg. & Rawle, 275 ,) which was hastily determined on an exception to evidence, we are entirely prepared to adopt the conclusions of Chancellor Kent, in The Methodist Epis. Church v. Jaques, ( 3 Johns. Ch. Rep. 108 ,) that the English decisions are so floating and contradictory, as to leave us at liberty to adopt the true principle of • these settlements; that instead of holding the wife to be a feme sole to all intents as regards her separate estate, she ought to be deemed ¡so only to the extent of the power clearly given in the conveyance; and that instead of maintaining that she has an absolute right of dis-i position, unless she is expressly restrained, the converse of the pro- ’ position ought to be established—that she has no power but what is expressly given.

We are of opinion, then, that the plaintiff did not acquire the estate conveyed to the separate use of Mrs. Rogers.

The remaining question depends on a few plain elementary principles. The use as to the remainder of the estate was executed by the statute; consequently the power of appointment reserved to Mrs. Rogers, being general, was intended to be exclusively for her benefit. In the words of Mr. Sugden, a general power of appointment is, in regard to the estates that may be created by force of it, tantamount to a limitation in fee, not merely because it enables the donee to limit a fee which a particular power may also do, but because it enables him to give the fee to whomsoever he pleases. He has an absolute disposing power over the estate, and may bring it into the market whenever his necessities or wishes lead him to do so. (Sugd. on Powers, 482, 485.) But a power to sell implies a power to mortgage, a mortgage being a conditional sale. (Mills v. Banks, 3 P. Wms. 9.) And it would seem, for the same reason, that a power to charge will not imply a power to mortgage. Under a general power, it has been expressly held that a mortgage is *249 a revocation, (Perkins v. Walker, 1 Vern. 97. Thorne v. Thorne, Ib. 141,) and there is no reason why the donee may not appoint, by way of mortgage, as he may treat the estate in every respect as his own. Here the mortgage must be intended to have been in execution of the power, although it contains no reference to it, because - as the estate created by it, cannot be served out of Mrs. Rogers’s interest, it must necessarily be served out of her power. It was’ therefore an effectual appointment.

Smith, J., having been absent during the argument, in consequence of indisposition, took no part in the’decision.

. Judgment for the defendant, non obstante veredicto.