We think the case was properly disposed of by the surrogate, and that the judgment of the General Term should be affirmed.
Walton, J., in
50 Maine, 139. - 1863.
Another question raised in this case is, whether the deed from Mrs. Brown to Oliver S. Nay was valid. The objection to it is, that it purports to convey a freehold estate to commence in futuro; and such is its effect, for by its terms Mrs. Brown was "to have quiet possession, and the entire income of the premises until her decease."
Deeds in which grantors have reserved to themselves estates for life are believed to be very common in this State; and whether or not such deeds are valid is certainly a very important question, and ought to be authoritatively decided.
It was a principle of the old feudal law of England that there should always be a known owner of every freehold estate, and that the freehold should never, if possible, be in abeyance. This rule was established for two reasons: 1. That the superior lord might know on whom to call for the military services due from every freeholder, as otherwise the defense of the realm would be weakened. 2. That every stranger who claimed a right to any lands might know against whom to bring his suit for the recovery of them; as no real action could be brought against any one but the actual tenant of the freehold. Consequently, at common law, a freehold to commence in futuro could not be conveyed, because in that case the freehold would be in abeyance from the execution of the conveyance till the future estate of the grantee should vest. And it is laid down in unqualified terms in several cases in Massachusetts, and in one in this State, that an estate of freehold cannot be conveyed to commence infuturo by a deed of bargain and sale, which owes its validity to the statute of uses, and not to the common law.
But the doctrine that freehold estates to commence infuturo cannot be conveyed by deeds of bargain and sale, since the passage of the statute of 27 Henry 8, c. 10, commonly called the statute of uses, is clearly erroneous. It is clear that, at common law, such conveyances could not be made; and it is equally clear that, by virtue of the statute of uses, such conveyances may be made. Prior to the reign of Henry 8, real estate could be so held that one person would have the legal title, and another the right to the use and income. To obviate many supposed inconveniences which had grown out of this practice of separating the legal title from the use, the statute of uses was passed, by which it was enacted that the estates of the persons so seised to uses should be deemed to be in them that had the use, in such quality, manner, form, and condition, as they had before in the use. It will be noticed that the effect of this statute was to annex the legal title to the use, so that they could not be separated. Mr. Cruise says, that when this statute first became a subject of discussion in the courts of law, it was held by the judges that no uses should be executed that were limited against the rules of the common law; but that this doctine was not and could not be adhered to, for the statute enacts that the legal estate or seisin shall be in them that have the use, in such quality, manner, form, and condition, as they before had in the use; that chancery having permitted uses to commence infuturo, and to change from one person to another, by matter ex post facto, the courts of law were obliged to admit of limitations of this kind. The statute did not attempt to limit or control the doctrine of uses; it simply declared that where the use was, there, the legal estate should be also. The result was that it opened several new modes of conveying legal estates wholly unknown to the common law; for whatever would convey the use and income of real estate before its passage, would, by virtue of the statute, convey the legal estate afterwards. It will thus be seen that conveyances through the medium of the statute of uses are effected in this way: - The owner of an estate in lands, for a consideration either good or valuable, agrees that another shall have the use and income of it, and the statute steps in and annexes the legal title to the use, and thus the cestui que use becomes seised of the legal estate in the same manner as before the statute he would have been seised of the use. The argument, presented in a syllogistic form, is this: Since the statute of uses, freeholds can be conveyed in any manner that uses were conveyed before its passage. Before its passage, uses were conveyed to commence in futuro; therefore, freeholds may be conveyed to commence in futuro since its passage. It must be remembered, however, that neither legal estates nor uses can be so limited as to create perpetuities. If future estates are so limited as to take effect in the lifetime of one or more persons living, and a little more than than twenty-one years after, the rule against perpetuities will not be violated. We will refer to a few leading authors:
Mr. White, a very learned English writer, in one of his additions to the text of Mr. Cruise, says: "By executory devise and conveyances operating by virtue of the statute of uses, freehold estates may be limited to commence in futuro." 1 Greenleaf's Cruise, title
1, § 36.
Mr. Chitty, after stating that by a common law conveyance, a freehold to commence in futuro could not be conveyed, continues. " But deeds operating under the statute of uses, such as bargain and sale, covenant to stand seised, or a conveyance to uses, or even a devise, may give an estate of freehold to commence in futuro." 1 Chitty's General Practice, 306; 2 Bl. Com. 144, note 6.
Mr. Sugden says: "A bargain and sale to the use of D., after the death of S., is good." Gilbert on Uses (Sug. edition), 163.
Mr. Cornish: "By a bargain and sale, or covenant to stand seised, a freehold may be created in futuro". Cornish on Uses, 44.