The covenants only attach to the estate granted, or purporting to be granted. If a life estate only be expressly conveyed, the covenantor warrants nothing more. The conveyance is the principal, the covenant the incident. If they do not expressly enlarge the estate passed by the operative words of the deed, I cannot perceive upon what sound principle of construction they can have that effect indirectly by throwing light on the intention of the grantor. In the construction of a deed of conveyance the question is, not what estate did the grantor intend to pass, but what did he pass by apt and proper words. If he has failed to use the proper words, no expression of intent, no amount of recital, showing the intention, will supply the omission, although it may preserve the rights of the party under the covenant for further assurance or in equity upon a bill to reform the deed.
The object of the covenants of a deed is to defend the estate passed, not to enlarge or narrow it. To adopt, as a settled rule of interpretation, that deeds are to be construed like wills, according to the presumed intent of the parties making them, to be deduced from an examination of the whole instrument, would be dangerous, and, in my judgment, in the last degree inexpedient. It is far better to adhere to the rigid rules established and firmly settled for centuries, than to open so wide a door, for litigation, and render uncertain the titles to lands. The experience of courts in the construction of wills, the difficulty in getting at the real intent of the party, where imperfectly expressed, or where he had none; the doubt which always exists in such cases, whether the court has spelt out what the party meant, all combine to show the importance of adhering to the rule, that the grantor of a deed must express his intent by the use of the necessary words of conveyance, as they have been settled long ago by judicial decision and the writings of the sages of the law. Upon this point, it is not safe to yield an inch; if that is done, the rule is effectually broken down. Where shall we stop if we start here?
Littleton says: Tenant in fee simple is he which hath lands or tenements to hold to him and his heirs forever. For if a man would purchase lands or tenements in fee simple, it behooveth him to have these words in his purchase: "To have and hold to him and his heirs." For these words, " his heirs," make the estate of inheritance. For if a man purchase lands by these words, " to have and to hold to him forever," or by these words, " to have and to hold to him and his assigns forever," in these two cases he hath but an estate for life, for that there lack these words, " his heirs," which words only make an estate of inheritance, in all feoffments and grants.
"These words, 'his heires,' doe not only extend to his immediate heires, but to his heires remote and most remote, born and to be born, sub quibus vocabulis 'haredibus suis' omnes haeredes, propinqui comprehenduntur, et remoti, nati et nascituri and haeredum appellatione veniunt, haeredes haeredum in infinitum. And the reason wherefore the law is so precise to prescribe certaine words to create an estate of inheritance, is for avoiding of uncertainty, the mother of contention and confusion." Co. Lit., vol. 1,1 a, 8 b; 1 Shep. Touch. 101; Com. Dig., tit. Estate, A, 2; Preston on Est., 1, 2, 3, 4, 5; 4 Cruise's Dig., tit. 32c, 21c, 1.
There are but two or three exceptions to this rule. The cases of sole and aggregate corporations, and where words of reference are used "as fully as he enfeoffed me." A gift in frank marriage, etc., which are to be found stated in the authorities already cited.
These exceptions create no confusion; they are as clearly defined and limited as the rule itself.
The word " heirs " is as necessary in the creation of an estate tail as a fee simple. 1 Co. Lit. 20, a; 4 Cruise's Dig., tit. 32 c, 22, § 11; 4 Kent's Com. 6; Bl. Com. 114.
This author sets this doctrine in clear light. He says: As the word heirs is necessary to create a fee, so, in further limitation of the strictness of feodal donation, the word body, or some other word of procreation, is necessary to make it a fee tail. If, therefore, the words of inheritance or words of procreation be omitted, albeit the other words are inserted in the grant, this will not make an estate tail, as if the grant be to a man, and his issue of her body, to a man and his seed, to a man and his children or offspring, all these are only estates for life, there wanting the words of inheritance.
The rule in Shelley's Case, that when the ancestor, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is limited either immediately or mediately to his heirs in fee or in tail, that always in such cases the word heirs are words of limitation, and not of purchase, 1 Rep. 93; 4 Cruise's Dig., c. 23, § 3, tit. 32, require the use of the word heirs to bring it in operation.
No circumlocution has been ever held sufficient. It is believed no case can be found where this rule has been held to apply unless the word heirs has been used in the second limitation.
Neither the researches of the learned judge who delivered the opinion of the Supreme Court, nor those of the very diligent counsel who argued the case here, have produced a case decided in England or in any state of this Union abiding by the common law, where, in a conveyance by deed, the word children has been held to be equivalent to heirs. That this has been determined in regard to wills is freely conceded, but that does not answer the requisition. The reasoning of the Supreme Court is, to my mind, entirely unsatisfactory. In the administration of the law of real estate, I prefer to stand super antiquas vias, stare decisis; to maintain the great rules of property, to adopt no new dogma, however convenient it may seem to be. The refined course of reasoning adopted in the face of so great a weight of authority rather shows what the law might have been, than what it is.