2 A large part of the opinion is omitted. The part printed is useful here mainly as explaining and illustrating feudal doctrine. - Ed.
The language of this lease, in its ordinary, natural, and popular sense, makes the intention of the parties to pass a perpetual right obvious and unmistakable. Such being, in fact, the manifest meaning of the instrument, and the indubitable intention of the parties as therein expressed, it might not be difficult to find authority on which to hold that the deed should be treated as reformed in conformity with that intention under the prayer for general relief in the bill. Busby v. Littlefield, 31 N. H. 200, and authorities cited.
There may also be room for doubt whether the defendants, having entered into a covenant in terms undeniably sufficient to bind a corporation of this sort forever, could be permitted to repudiate it on the ground that the estate is limited to the legal representatives rather than the heirs of the lessees, so long as the conditions upon which the estate was granted continue to be performed by any one who comes within the class designated by the term legal representatives. Coke Litt. 9b. 94d.; 2 Bl. Com. 108, notes; 4 Kent Com. 7; 1 Washb. R. P. 58. We have not chosen, however, to examine either of these propositions, but prefer, rather, to inquire whether there exists in this state any law whereby a legal contract, fairly and openly concluded between the parties, and by them put in writing in terms so plain as to leave no room for doubt as to the obligations they have thereby mutually assumed, is set aside and nullified for want of a single word, purely technical in its legal effect, which adds nothing to the sense of the instrument, and can only be made consistent with the intention it is held to express by an interpretation which withdraws it entirely from all the ordinary uses of the language in which it is found. There being no doubt as to what the contract between these parties was, no doubt as to the meaning of the lease, the question we propose to consider is, whether that contract is to be destroyed by an application of the proposition that to create a fee the word "heirs " must be employed.
Suppose A., being the owner in fee of a piece of land, by a deed duly executed, conveys to B. all "his estate and interest therein," and expressly declares in the same deed that B., having paid him the full value of the land, it is his intention, and the effect of the deed shall be, to pass an absolute title in fee simple to B A rule of law defeating that intention and preventing the deed from having the effect intended to be given by its express terms - construing the language, " This deed shall pass, and shall be construed to pass, a fee,'' to mean '' This shall not pass, and shall be construed not to pass a fee " because the superfluous word " heirs " was not used - would undoubtedly strike the unlearned with a degree of astonishment. Such a rule must appear to an intelligent layman, unfamiliar with the mysteries of the fossil remains of feudal institutions, as arbitrary, destructive, tyrannical, and in most violent conflict with all ideas of legal reason which such a person can comprehend.
The question whether that rule is part of the law of this State is presented for our consideration in the present case, in a form which differs in no material respect from the case supposed for illustration.
It is said to be a rule of the common law that without the word "heirs" a fee-simple in land cannot pass by deed; and that this rule is so absolute and unyielding, that, no matter how clearly the intention of the grantor to convey a fee may be stated in the deed, such intention can be of no avail without that word. Washb. R. P. Bk. I., ch. Ill, sec. 53, and authorities in notes. A priori we should expect to find a rule which in its practical application brings about results so anomalous and absurd, but which is, nevertheless, enforced with such remorseless rigor by the courts, upheld by reasons very plain and very imperative. Naturally we should also expect that the books, which are full of cases where its application has produced palpable injustice, more or less aggravated according to circumstances, would also be filled with strong and conclusive reasons in its support On the contrary, what does appear? I venture to affirm that since the revolution by which the house of Stuart was finally excluded from the British throne, when most of the shackles which feudalism had riveted upon the tenure of lands throughout the kingdom were removed, not a reason, nor the semblance of a reason, growing out of the condition and wants of society, the progress of civilization, the exigencies of trade, or the analogies of the law can be found in its support in any country or state where the common law has been used.
The rule is a feudal one: that it had no place in the laws of the Saxons is shown by Reeves. Speaking of the form of charters at about the time of the Norman Conquest, he says: " The words of limitation to convey a fee, whether absolute or conditional, were divers; " and after giving a number of Latin forms which were used, some of them containing the word " haeredibus," and some not, he continues, " from which divers ways of limiting estates (and numberless other ways might be produced), it must be concluded that no specific form had been agreed on as necessarily requisite to express a specific estate; but the intention of the grantor was collected, as well as could be, from the terms in which he had chosen to convey his meaning." I Reeves's Hist. Law (Finlason), 42.
Blackstone says: " This very great nicety about the insertion of the word ' heirs ' in all feoffments and grants, in order to vest a fee, is plainly a relic of the feudal strictness; by which we may remember it was required that the form of the donation should be punctually pursued; or that, as Cragg expresses it in words of Baldus, ' donationes sint stricti juris ne quis plus donasse praesumatur quam in donatione expresserit. And, therefore, as the personal abilities of the donee were originally supposed to be the only inducements to the gift, the donee's estate in the land extended only to his own person, and subsisted no longer than his life; unless the donor, by an express provision in the grant, gave it a longer continuance, and extended it also to his heirs. 2 Bl. Com. 107, Chancellor Kent says: " The rule was founded originally on principles of feudal policy which no longer exist, and it has now become entirely technical," and he gives the same reason for it as Blackstone. 4 Kent Com. 6.