But the effort to avoid the rigor of the rule where its application is not obligatory began long ago. Where technical words are supplied by reference to another instrument which contains them, the case was recognized as an exception as early as the days of Lord Coke; and this exception was recognized by our own case of Lytle v. Lytle, 10 W. 259, and followed. The rule was plainly laid down in the last case cited that a fee simple may be created in Pennsylvania, by deed without words of inheritance, by a reference to another instrument in which such words are found, and it was made clear that such was the rule in England at a very early date. The following examples are from Shepherd's Touchstone. A conveyance was made by deed in which the grantor recited that "B. hath enfeoffed him (the grantor), of white acre, to have and to hold to him and his heirs, . . . and that as fully as B. has given white acre to him and his heirs he doth grant the same to C." Here the word " heirs " is supplied in the grant to C. by the reference to the grant from B., and C. takes a fee-simple without the appearance of words of inheritance in the grant to him. Another case is that of a grant of two acres of land " to have and to hold, the one acre to A. and his heirs, and the other acre to B. in forma predicta." Shep. Touch. 101. Here B. takes a fee-simple by virtue of the reference to the grant to A.., in which words of inheritance appear. The reference shows the intent of the grantor, and is held to import the words of inheritance into the grant to B.
In the light of these cases, let us look once more at the assignment before us. We find the assignor held a deed in fee-simple, in the usual form, made in 1862 by another son, John. On the back of this deed the assignment is written. It refers for a description of the estate granted to the terms of the deed upon which it is indorsed, and professes to transfer to the assignee all the right, title, interest, property, claim, and demand of the assignor " in and to the within deed." What was the title of the assignor? That question can only be answered by an examination of the description of it in the body of the deed; but, whatever it was, the assignor undertakes to transfer it to his assignee. Not a part of it; not a life estate carved out of it, but " all the right, title, interest, property, claim, and demand " of the assignor. Nothing was left. He transferred his whole estate, as vested in him by virtue of the deed, by the reference to its terms in the assignment. He said, in substance and in legal effect, " as fully as the within deed clothes me with the title to the land described in if, so fully and completely do I transfer the same land to my son Allen. He is to take from me the title which I took from my grantor." The technical words that are wanting in the assignment standing by itself, are thus supplied by the reference to " the within deed " for a description of the estate; and the fee-simple which the father took by the deed from John he transfers by his assignment to Allen. This is what was intended; and the scrivener wrought better than he knew in making his reference to "the within deed " for a description of the " right, title, estate, interest, property, claim and demand " of the assignor. If Allen bought a life estate only, it is reasonable to suppose that he would have taken possession; but he left his father in possession, and in the full enjoyment of its proceeds. If the father understood that he parted with a life estate only, and retained the fee, he would naturally keep the deed under which he acquired title; but he indorsed his assignment upon that deed, and delivered it so indorsed, to Allen. We are satisfied, therefore, that the parties intended just what our construction of the assignment shows they did, viz., to convey the fee-simple to Allen. In this view of the case, it becomes unnecessary to consider the other question at any length.
The judgment is reversed, and a venire facias de novo awarded.
(3.) In the Transfer of a Fee to a Trustee.
47 New Hampshire, 488. - 1867.
Bill in equity to restrain defendants from cutting certain water pipes.
Bellows, J. - This cause is heard upon bill and answer. The defendants claim under William Simpson, alleging that by his deed to Mr. Britton only an estate for life was granted. The substance of that deed is, that, in consideration of one hundred dollars paid by said Britton, agent for the Proprietors of Orford Bridge, Simpson conveys to him for the use of that corporation, and to his assigns, two parcels of land, one being described as a road four rods wide from the bridge to the main road, and the other apparently for a toll-house; to have and to hold the same to said Britton in trust, as aforesaid, and to his assigns.
By this deed, by force of the statute of uses, the title vested at once in the corporation, as it had full capacity to take; and nothing indicates any purpose that the legal estate should be kept on foot in Mr. Britton. The conveyance was made to him, probably, because conveyances directly to corporations had not then become quite familiar. Had it been conveyed to the corporation directly, then, as a corporation aggregate never dies, it would be a fee-simple without words of succession or inheritance. Had it been a sole corporation, words of succession would have been necessary.
This general doctrine is well settled; 4 Greenl. Crim. Dig. 279; 4 Kent's Com. 7, where it is said that the reason why, in deeds to corporations aggregate, the word heirs or successors is not necessary, is, "because in judgment of law a corporation never dies, and is immortal by perpetual succession." So is Co. Lit. 9, 6.
Such being the law where the grant is directly to a corporation aggregate, it would seem not to be unreasonable to apply the same doctrine to a grant to a trustee for the use of such a corporation, when it is of such a character that the whole title at once vests in the corporation, making it substantially a grant to the corporation.