We entertain no doubt that, by deeds of bargain and sale, deriving their validity from the statute of uses, freeholds may be conveyed to commence in futuro. It will be seen that the law is so held in England, and by an overwhelming weight of authority in this country. In fact that such was the law seems never to have been doubted except in Massachusetts and in this State; and we think the error originated in the unauthorized remark found in Pray v. Pierce, and has been repeated from time to time without receiving that consideration which its importance demanded.
We are also of opinion that effect may be given to such deeds by force of our own statutes, independently of the statute of uses. Our deeds are not framed to convey a use merely, relying upon the statute to annex the legal title to the use. They purport to convey the land itself, and being duly acknowledged and recorded, as our statutes require, operate more like feoffments than like conveyances under the statute of uses. In Thacher v. Omans, 3 Pick, on p. 525, Chief Justice Dana, speaking of our statute of conveyances, first enacted in 1697, re-enacted in the Revised Laws of 1784, incorporated into the statutes of this State in 1821, and still in force, says:" This statute was evidently made to introduce a new mode of creating or transferring freehold estates in corporeal hereditaments; namely, by deed, signed, sealed, and acknowledged, and recorded, as the statute mentions; it does not prescribe any particular kind of deeds or conveyances, but is general, and extends to all kinds of conveyances." On p. 532 he further says: 'It seems evident to me that a deed executed, acknowledged and recorded as our statute requires, cannot be considered as a bargain and sale, because the legal estate is thereby passed without the operation of the statute of uses, in as ample a manner as by a feoffment at common law, accompanied with the ancient ceremony of livery of seisin." Such also were the opinions of Chancellor Kent and Prof. Greenleaf, 4 Kent, 461; Greenleaf's Cruise, title 12, c. 1, § 4. note; title 32, c. 4, $ 1, note. Mr. Greenleaf, in the note first cited says that in most of the States, including Maine, "deeds of conveyance derive their effect, not from the statute of uses, but from their own statutes of conveyances; operating nearly like a feoffment, with livery of seisin, to convey the land, and not merely to raise a use to be afterwards executed by the statute of uses."
Mr. Oliver in his work on conveyancing, ed. of 1853, p. 281, speaking of our common warranty deed, says: "This deed derives its operation from statute and has therefore some properties peculiar to itself. . . . The transfer is not effected by the execution of a use, as in a bargain and sale, but the land itself is conveyed, as in a feoffment, except the livery of seisin is dispensed with, upon complying with the requisitions of the statute, acknowledging and recording, substituted instead of it." We think these views are sound and if any of the technical rules which have grown up under the statute of uses stood in the way of giving effect to deeds executed in accordance with the provisions of our statute, simply because they purport to convey freeholds to commence at a future day, we think effect might be given to them independently of the statute of uses. But in our judgment no such rules do stand in the way of giving effect to such deeds. They may be upheld either as bargains and sales under the statute of uses or as conveyances deriving their validity from our own statutes.
Having come to the conclusion that the demandant is entitled to recover upon another ground, it was not absolutely necessary to consider the validity of the deed from Mrs. Brown to Oliver S. Nay, which purports to convey a freehold to commence in futuro But, as the question involved is an important one, and was ably argued by the counsel in the case; and, as the court has already decided one case within the past year (Hunter v. Hunter), in the county of Sagadahoc, in accordance with the views here expressed, but without any written opinion, and as several other suits involving the same question, are still pending before the court, we deemed it best to make known our decision of the question, and to state our reasons for the decision, in connection with this case.
II. Special rules to be observed in creating future estates subject to a condition precedent.1
1. A Common-law Contingent Remainder Must be so Created that it may by possibility vest in interest during, or eo instantI with the termination of, the particular Estate.1 Furthermore, It Cannot be Made to Depend on an Estate for Years.
1 The condition precedent referred to is one which either may not happen at all, or may not happen before some other future event expressly connected with it by the terms of the deed or will.. See note p. 869, supra - . Ed.
1 See definition supra. The remainder will be valid in its creation if it obeys this rule though it may afterwards fail because the particular estate ends before
139 Pennsylvania, 309. - 1890.
Per Curiam. - The authorities cited on behalf of the appellants were not necessary to sustain the familiar rule of the common law, that a contingent remainder must have an estate of freehold to support it. The application of this rule to the case in hand is unique. It may be concisely stated thus: The tenant for life purchases, and has conveyed to her by deed, the interest of the contingent remainderman - the one furthest removed from the succession. The life-tenant then claims that her life-estate is merged into the remainder, that intermediate contingent remainders are thereby destroyed, and that by reason thereof the life-estate has been enlarged into a fee. The idea of a life-estate being merged into a contingent remainder is a novel proposition. Aside from this, a contingent remainder can only be conveyed by a devise; a deed purporting to convey it operates only as an estoppel, unless the conveyance is after the contingency happens. 4 Kent Com. 260; William, R. P. 215; 1 Washb. R. P. 264. We think judgment was properly entered for the defendant on the case stated.