Stevens v. Dewing

That a lease to continue as Long as wood grows or water runs4 conveys a fee in the use. That an instrument to divest lessee of such an estate must be executed with a seal as required by statute.

This was an action of ejectment for lands in Sheldon. Plea, general issue. The plaintiff claimed fhe land by virtue of a lease from Adams Stevens to him, to run as long as wood grows and water runs; said Martin to support said Adams and his wife during their lives. The defendant produced on trial the copy of the record of a similar lease from the plaintiff to one Theophihs Lamphier, to which Adams Stevens was a party, and a quit-claim deed from Lamphier to Adams Stevens of said premises. The defendant then showed a judgement in his favor against Adams Stevens, and an execution issued upon sajd judgement, and the same regularly levied upon the land in question. Under which levy the defendant took possession. The plaintiff, then, to avoid the force of said lease from him to said Lamphier, produced the Original lease, which appeared never to have been sealed. This, though objected to, was read to the jury. The court then instructed the jury, that, if they found the said lease or assignment from the plaintiff to said Lamphier had never been sealed, to find a verdict for the plaintiff. The jury returned a verdict for the plaintiff! A bill of exceptions was allowed, on which the cause was brought up to this Court. The references to the'written instruments in the arguments of counsel and in the opinion of the Court, will render the whole intelligible, without any further statement respecting them. Argument in support of the exceptions. — It is sufficient for the defendant to show that the plaintiff has no title to the premises. The lease from Adams Stevens to Martin Stevens is void. They must both be bound by it or neither. Martin is not absolutely bound to support his parents, but only to support them or else deliver up his property to Adams. He can, at his pleasure, have it a contract or not. This instrument is also void, not having been delivered. If the Court should not consider this void, the inquiry is, what is the instrument ? The defendant contends it is a lease for years. The words “ lease, rent,” &c., and “ for the term of one thousand years,” and also reserving rent, make it a lease. This was evidently the intention of the parties. — The words, “ as long as wood grows and water runs,” are repugnant to the other parts of the instrument. The first words in the deed must govern in the construction of the instrument. — Shep. Touchstone, 88. — 2 Bac. Ah., 6G6, title, Grant, 1. The indenture or written agreement made between Adams Stevens, Martin Stevens, and Theophilus Lamphier, is a surrender from Martin to Adams of Martin's right as lessee of the premises, which can be made by writing without seal. It appears by this instrument that Martin surrendered to Adams, (or to Lamphier for Adams, and according to Adams' desire,) Martin's interest as lessee to the premises. Adams was lessor and bad the reversion. By this instrument Adams discharges Martin from all liabilities on the lease. Lamphier receives the property and engages to support Adams and his wife, and, on failure of supporting them, to deliver the property to Adams. And it was agreed by Adams, Martin and Lamphier, that Lamphier, in the aforesaid premises, should stand in the place of Martin Stevens. — Shep. Touchstone, 300, 301 and n. 305-6-7-9-52.— Stat. 166,2 sec. The statute of this state declares what estates maybe surrendered in writing. In the surrender of Martin to Lamphier for Adams, nothing is released to Martin. The whole estate pass* 1 t ° * ed from him. But, if the instrument should be considered an Assignment from Martin Stevens to Lamphier, a seal is not necessary to make it valid. S. Royce,jr. contra. — It will be contended for the plaintiff, 1. That,bythe indenturebetweenAfamsiSteremandtheplaintiff dated March 1, 1809, the latter acquired an estate in fee, subject to be defeated by the non performance of certain conditions. The operative words of the grant are the following: — “ That I, “ the said Adams, do on my part and behalf lease, let, rent, and “ confirm, to. the said Martin, and his heirs, one certain lot,” &c. “ for the full term of one thousand years, or as long as wood “ grows or water runs.” To this the grantor adds the following covenant: — ’“I, the said Adams, do, for myself and heirs, engage “ to warrant and secure and defend the said premises, during “ the whole of said term of time, against all claims and demands “ of any person or persons, laying any claim thereto, or any part “ thereof.” These granting words, in connexion with the covenant of warranty, are sufficient to pass the feet «If there is any .doubt upon the granting words alone, the covenant operates by way of estoppel upon the grantor, and of confirmation upon the .granting clause. There is no uncertainty as to the duration of the .estate : for, if the periods here mentioned are not regarded as in substance synonymous, yet the grant is good for the one period or the other ; and as the grant is to be construed more strongly against the grantor -than the grantee, it is at his election an estate while wood grows, &c. A sufficient consideration for this conveyance appears'in the covenants of the plaintiff to maintain Adams .Stevens and his wife, 2. That the plaintiff has not conveyed away his estate. Since the conveyance by livery ofseizin only has been abolished, a deed has always been necessary to convey a freehold estate — and especially an estate in fee. The expressions in the statute, “ a deed .or note in writing,” are to be understood with reference to the different interests and estates to be conveyed • and while the “ note in writing” would suffice to convey a chattel interest, the “ deed” was necessary to convey a freehold. The instrument .executed by and between the plaintiff, Theophilus Lamphier, and Adams Stevens, dated March 1,1817, is nota deed, and,therefore, cannot operate as a direct conveyance from the plaintiff to Lamphier. Neither does it operate as a surrender of the estate from the plaintiff to Adams Stevens. There are no worda of a surrender, nor is there any apparent intent that the plaintiff should convey? release, surrender, or discharge, to Adams Stevens any interest or right whatever. All that the plaintiff undertook or meant to do, was to convey his estate to Lamphier, subject to conditions similar to these in his own deed. If this is construed to be a surrender to Adams Stevens, the whole estate necessarily stopped and vested in him, as it could not pass to Lamphier. And thus the design of all the parties was frustrated. The estate of the plaintiff was not a subject of surrender, but required a reconveyance adapted to the magnitude of the estate. A surrender is the return of a lesser estate into a greater, and is the converse of a release, which is the falling of a greater estate upon a lesser one. But Adams Stevens had not a greater estate than the plaintiff for the plaintiff had the whole estate, subject to conditions, which at most could endure but a few years. Nor did this instrument operate as an assignment of the plaintiff’s estate to Lamphier. Firstly, because an assignment was not a sort of conveyance adapted to the estate, which was not a subordinate interest, but the principal estate, and could be conveyed only by ah 'ordinary mode of conveyance. Secondly, because the estate, if assignable, could be assigned by the party no otherwise than by a deed — it being a freehold of inheritance. Thirdly, because the instrument shows no consideration sufficient to support any conveyance whatever. The only colour of consideration is the engagement on the part of Lamphier, and the discharge of the plaintiff from his previous covenants by Adams Stevens. But the latter is void and inoperative, because by pa-rol ; and the former imposes no obligation on Lamphier which was of any certain benefit to the plaintiff. .It was, at most, but a promise of Lamphier to maintain the old people, so long as he chose to occupy the land; but he was at liberty to abandon all whenever he pleased, and was not even bound to take possession at all. The plaintiff continued liable upon his original covenants, and received no indemnity or equivalent in this transaction. Nor was this instrument available as an authority from the plaintiff to Lamphier to make a future surrender to Adams Stevens': Assuming that the estate of the plaintiff might be surrendered, (which we by no means admit) still a deed was necessary to effect that object. But the deed from Lamphier to Adams Stevens, dated February 4th, 1821, cannot operate upon the estate of the plaintiff. Firstly, because Lamphier had no authority ? by deed, to execute that conveyance in right of the plaintiff.— Stat. p. 170. Secondly, because the form of the deed, and the mode of execution, are not adapted to the execution of an agency, It, therefore, conveyed nothing beyond the personal interest of Lamphier himself. 3. We contend, .that the plaintiff’s estate has not been avoided or defeated by the re-entry of Jldams Stevens for condition broken. No actual re-entry for that purpose is pretended. But, perhaps, it will bo insisted that his acceptance of the deed from Lamphier is tantamount, and ought to be followed by the same consequences. But to this it may be answered — First, that the case discloses no facts which would give Mams Stevens a right to re-enter. It does not appear that the stipulated maintenance was ever withheld ; and his declaration, appended to the deed from Lamphier, shows the contrary. Without a sufficient cause for re-entry, surely no act of Adams Stevens, nor any joint act of hjm and Lamphier, could prejudice the plaintiff. Second: — as a re-entry was to work a forfeiture of the plaintiff’s vested estate, and as forfeitures are odious in law, the construction upon the exercise of this right is strict, and when an' actual entry is possible, no substituted act or ceremony is admitted. ’ Third :• — the simultaneous declaration of Adams Stevens recorded with the deed', shows that he received that conveyance in right of the plaintiff; and that declaration is proper evidence of the' intent with which the deed was executed and accepted. It is, therefore, evident that this act of Adams Stevens, cannot be construed as a retaking of the property from- the plaintiff on the ground of forfeiture.