Chancellor Kent: "A person may covenant to stand seised, or bargain and sell, to the use of another at a future day." 4 Kent's Com. 298.
Mr. Archibold: "Deeds acting 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." Note to 2 Bl. Com. 166.
In a note to the 5th American edition of Smith's Leading Cases, vol. 2, p. 451, after noticing the Massachusetts cases, in which it is held that a freehold to commence in futuro cannot be created by a deed of bargain and sale, the learned editors say: " It is undoubtedly true that such limitations are bad at common law; but it seems equally well settled that they are good in deeds operating under the statute of uses, whether the use be raised on a pecuniary consideration or on blood or marriage. The point is so held in England, and has been repeatedly and expressly decided in New York, and several of the other States of this country. The attributes of a use are the same, whatever may be the consideration in which it is founded; and, if uses commencing in futuro were without the operation of the statute, when raised by a bargain and sale, they would be equally so when originating in a covenant to stand seised."
In Rogers v. Eagle Insurance Co., 9 Wend. 611, the question underwent a most thorough examination, and the conclusion was, that a freehold to commence in futuro could be conveyed by a deed of bargain and sale, operating under the statute of uses; and the court expressed surprise that any one should have ever supposed that such was not the law.
In Bell v. Scammon, 15 N. H. 381, the same question was raised and the court held that "a freehold in futuro could be conveyed either by deed of bargain and sale, or by a covenant to stand seised."
Mr. Washburn, in his late very able work on Real Property, vol. 2, p. 617, § 16, says that the reasoning of Chancellor Walworth, in Rogers v. Eagle Insurance Co., 9 Wend. 611, in which he maintains that an estate of freehold, to commence in futuro, can be conveyed by a deed of bargain and sale, and the authorities upon which he rests would seem to leave little doubt in the matter, beyond what arises from the circumstance that other courts have taken a different view of the law.
It is true, that in Massachusetts and this State, when determining that the deeds then under consideration were valid upon other grounds, judges have expressed the opinion that a freehold to commence in futuro could not be conveyed by a deed of bargain and sale; but these opinions are mere obiter dicta, for they have never yet had the effect of defeating a deed. The idea seems to have originated in an unauthorized statement, probably accidental, to be found in Pray v. Pierce, 7 Mass. 381. Having under discussion the rule that deeds should be so construed as to give effect to the intention of the parties, and not to defeat it, the case of Wallis v. Wallis, 4 Mass. 135, was referred to by way of illustration, and the reporter makes the court say that the deed in the latter case was held to be a covenant to stand seised, "because, as a bargain and sale, it would have been a conveyance of a freehold in futuro, and therefore void."
By turning to that case, Wallis v. Wallis, it will be seen that such a statement in unauthorized. The court remarked that, by a common law conveyance, a freehold could not be conveyed to commence in futuro, which was unquestioanbly true; but the court did not say that such a conveyance could not be made by deed of bargain and sale, which owes its validity to the statute of uses and not to the common law. Why the deed in Wallis v. Wallis, was not sustained as a bargain and sale, instead of covenant to stand seised, does not appear. The case was submitted without argument, and, as the deed could readily be sustained as a covenant to stand seised, it may not have occurred to the court that it could just as well be sustained as a bargain and sale. On careful examination, it will be seen that these cases, Wallis v. Wallis, and Pray v. Pierce, are not authorities for the doctrine they are so often cited in support of.
In Welch v. Foster, 12 Mass. 93, the deed, for a valuable consideration, to be paid whenever the deed should take effect, and not otherwise, purported to convey a certain part of a mill, with the land, etc., "provided that the said deed should not take effect or be made use of, until the said mill-pond should cease to be employed for the purpose of carrying any two mill-wheels." It was held that nothing passed by the deed, not because it was to take effect only upon the happening of a future event, but because the event, if it should ever happen, might be delayed much beyond the utmost period allowed for the vesting of estates on a future contingency. The event, it was held, must, in its original limitation, be such that it must either take place, or become impossible to take place, within the space of one or more lives, in being, and a little more than twenty-one years afterwards, to prevent the creating of a perpetuity, or an unalienable estate. Such is undoubtedly the law Besides, no consideration was ever paid for the deed, and the grantor afterwards conveyed to another. Under these circumstances the court very properly held the deed void. But the distinction made by Judge Jackson, in that case, between covenants to stand seised, and deeds of bargain and sale, is mere dictum, and has neither reason nor authority to rest upon.
Speaking of the qualities of a bargain and sale, Judge Jackson says: "One of these qualities is, that it must be to the use of the bargainee, and that another use cannot be limited on that use; from which it follows that a freehold to commence in futuro cannot be conveyed in this mode; as that would be to make the bargainee hold to the use of another until the future freehold should vest." Hold what? Upon the execution of a deed in which the grantor reserves to himself an estate for life, and conveys the residue, the grantee obtains a present vested right to a future enjoyment of the property; but, until the future freehold vests, the use, the seisin, and the right of possession, remain with the grantor, and there is no conceivable thing that the bargainee will be required to "hold to the use of another."