In the nature of things the word is no more necessary to the valid conveyance of land than to the valid conveyance of a horse. Its use was necessary in the scheme of a semi-barbarous institution, a vast engine of slavery and oppression, an instrument of violence and disorder, which had no better security for its continued existence than superiority of brute force, and which was swept away upon the dawn of a better civilization more than five hundred years ago. Why is its use still required in one class of instruments and not in the other, when both have the same object in view, namely, the conveyance of land?
I have not found any answer to this inquiry. The legal signification and effect of the word as used in our deeds of bargain and sale are purely technical. Strictly speaking, there is no one in existence at the time of the grant to answer the description. Nemo est hares viventis. Those who may become the heirs of the grantee take not the slightest present interest by virtue of the word. The conveyance vests the absolute and unlimited ownership in the grantee; the word imposes no restraint on his power of alienation. Neverthe less it has a settled and well understood meaning as thus used, and, as a legal term, is very convenient and useful to show that the estate granted is a fee. It could not now be safely omitted without using some other form of expression showing with legal accuracy the intention and contract of the parties.
Of course it will not be omitted by any conveyancer or other person who knows the significance it has acquired. But when a case arises where the intention of the grantor to convey a fee simple is clearly shown by other words in the deed, we think the court have no power to say a fee shall not pass because he has not, in addition, inserted this technical word, using it in a sense entirely distinct and different from its usual and common import. Our conclusion is, that the rule, which would defeat the obvious intention and destroy the plainly expressed contract of the parties in the present case, is not adapted to our institutions or the condition of things in this State; that it never became part of the law of the State, and, therefore, that this instrument conveys to the lessees a perpetual right to take and use the water upon the terms and conditions specified, which right may pass to their heirs and assigns as a fee.
A decree is to be entered in accordance with these views.
(2.) Incorporation of Words of Limitation by Reference to Another Instrument.
131 Pennsylvania State, 447. - 1889.
Ejectment. Plaintiff was nonsuited below. The facts appear in the opinion.
Williams, J. - The title to the land in controversy was, in 1866, vested in James Ramsey, under whom both parties claim. In August of that year he made an assignment to his son, Allen Ramsey, which was written on the back of the deed under which he acquired title, and delivered the paper on which the deed and the assignment were written to his son. The assignment was in these words:
"I, James Ramsey, do hereby assign and set over all my right, title, claim, interest, property, and demand whatsoever in and to the within deed unto Allen Ramsey, for value received. Witness my hand and seal this 3d day of August, 1866.
James Ramsey. [Seal.]
"Attest: George Bish."
Eighteen years later, in 1884, he conveyed the same land by deed to his daughter, Elizabeth Jane Graham. The father was in possession until his death. Allen Ramsey died before his father. This action was brought by the heirs at law of Allen. The defense alleges that Allen took only a life estate in the land, under the assignment made by his father to him, and that on his death his title was extinguished, the fee having passed to Mrs. Graham under the deed made to her in 1884.
Two questions were raised on the trial, and are now for determination. The first relates to the construction and legal effect of the assignment to Allen Ramsey. The other is over the right of the plaintiffs to show by George Bish, the scrivener by whom the assignment was drawn, and the subscribing witness to its execution, what the parties intended and agreed upon, what they asked him to put in writing, and what he undertook to do for them. The learned judge of the court below held that the assignment conveyed only a life estate, and that evidence offered to show that a fee-simple was intended, and that the failure of the scrivener was by mistake of his own, was incompetent.
We do not doubt the general rule laid down by the learned judge, that the word " heirs," or its equivalent, is necessary in a deed in order to vest a fee-simple in the grantee. The rule is as old as the common law, and, as applicable to a formal deed, is well understood, and constantly applied. It is the invariable practice of professional conveyancers to describe the estate which it is intended to convey, by apt words. If it is a fee, the words of inheritance are introduced. If it is for the life of the grantee or of another, the character and duration of the estate are clearly set forth. Instruments having no apt words of description in them are not often met with, but when encountered are found, like the one before us, to be the work of men who have no professional training, and no knowledge of the principles of conveyancing. They are almost always intended to convey a fee-simple, and fail to do so because of the omission of the necessary technical words, the importance of which was unknown to the scrivener and to the parties. It is for this reason that the courts have relieved against the mistakes so made, when the proofs were sufficient to justify them in so doing, and have applied the general rule only to such cases as came clearly within its operation. Thus, the courts both in England and in this country have held that the word " heirs " was not necessary to pass an absolute estate in fee when there was a gift by will, but that the intent to vest a fee may be gathered from the will as a whole. Little's App., 81 Pa. 190. So it has been held that an executory contract without words of inheritance will pass a fee-simple in equity. Ogden v. Brown, 33 Pa. 247. And it was held in the case last cited that the effect of an informal instrument transferring an interest in real estate depends, not on any particular words or phrases found in it, but on the intention of the parties as collected from the whole instrument. This case was followed in the recent case of Dreisbach v. Serf ass, 126 Pa. 32.