But the deed of the petitioner contained a covenant of warranty against all claims under the grantors, and the effect of this covenant remains to be considered. And here the case of Blanchard v. Brooks, 12 Pick. 47, is in point. In that case, a person being the devisee of a contingent, and also of a vested remainder in lands, made a deed, with covenants of general warranty, and for quiet enjoyment, purporting to convey all his " undivided share or portion, right, title and interest of, in and to " the lands. Mr. Ch. Jus-
1 This rule is statutory. For the New York Statute, see the N. Y. R. P. L.,
2 See § 49, N. Y. R. P. L. - Ed.
Shaw says: " The grant in the deed is of all his right, title and interest in the land, and not of the land itself, or of any particular estate in the land. The warranty is of the premises, that is, of the estate granted, which was all his right, title and interest." ' The grant in legal effect operated only to pass the vested interest, and not the contingent interest, and the warranty being coextensive with the grant, did not extend to the contingent interest, and of course did not operate upon it by way of estoppel." It was held that the plaintiff was not bound as a privy in estate with the grantor. The opinion of the court is, that the petitioner is not estopped by her deed to claim the land.
47 New Jersey Equity, 365. - 1890.
Van Vleet, V.-C. - This is a partition suit. The title to one of the tracts which the complainants seek to have divided is in dispute. The defendant asserts title to the whole tract; the complainants, on the other hand, assert a title to the undivided half of it, but admit that the defendant has title to an undivided fourth and that the title to the other undivided fourth is in certain other persons. The defendant exhibits a paper title to the whole tract; the important question, therefore, presented for decision is, is the title exhibited by the defendant valid? for if it is, the bill as against the defendant, as to that tract, must be dismissed.
Both parties claim under David Curtis, who died intestate between 1783 and 1788. At the time of his death he owned two undivided sevenths of Manasquan Beach, one of which he acquired from Elisha Lawrence, by deed dated July, 1770, and the other from Benjamin Lawrence, by a deed which it is alleged is lost. Among the gifts made by David Curtis by his will there is one which reads, in substance, as follows:
"I give and devise unto my eldest son, Elisha, that right of beach I bought of Elisha Lawrence - to him and the heirs of his body lawfully begotten, and for the want of such heir or heirs, then to be equally divided between my two sons, John and Benjamin."
David Curtis, besides limiting over to his two sons, John and Benjamin, the land devised to his son, Elisha, made John and Benjamin his residuary devisees, and they, as such devisees, took that undivided seventh of Manasquan Beach which had been conveyed to their father by Benjamin Lawrence. The thing in dispute is the one-half of that seventh which David Curtis acquired from Elisha Lawrence, and which he by his will limited over to his son
John in case his son Elisha, for the want of heirs of his body, did not take it. The defendant claims this half and puts forward as the foundation of its title a deed purporting to have been made on the 31st day of May 1788, by John Curtis to Joseph Lawrence. The whole contest between the parties centres in this deed. If it passed the land in controversy, the defendant will be entitled to prevail in this suit; if it did not, the complainants will be entitled to the decree they ask. The complainants contend, first, that the deed has not been sufficiently proved to entitle it to be admitted in evidence; and, secondly, that if it was admitted, no effect could be given to it - first, for the want of apt words to pass any right or estate which the grantor may have held at the time of its execution; and, second, because the grantor then held no right or estate in the land which he could grant or convey. These questions will be considered in an order directly the reverse of that in which they have just been stated.
It is undisputed that Elisha Curtis, the eldest son of David, died childless, never having had issue of his body. John died before Elisha. Their deaths occurred very near together in point of time, but the proof makes it entirely clear that John died first, so that it was undetermined when John died whether or not Elisha would have issue of his body. As the law stood when the devise to Elisha took effect, it is clear that he took an estate tail in the land devised. Our statute cutting an estate tail down to an estate for life in the first taker, with remainder in fee to the issue of his body, was not passed until 1820, Elm. Dig. 130, § 6, and the devise to Elisha took effect prior to 1788. Chief Justice Kirkpatrick stated with great clearness in Den v. Taylor, 2 South. 413, 417, what words would be held to be sufficient to create an estate tail. He said: " It is well settled that a devise to one and his heirs if he die without issue, then over to another, creates an estate tail, as if the principal devise had been in the most technical language, to him and the heirs of his body. The words of the devise over - if he die without issue then over to another - limit the generality of the term heirs in the principal devise, and lead us to the inevitable conclusion that the testator intended heirs of the body only, and not heirs generally. And whenever this intention can be collected from the whole will, taken together, let the phraseology in the particular clauses of it be what it may, it has been always construed to make an estate tail." This statement of the law has been so uniformly followed by the courts of this State as to have become a canon of real property law. Moore v. Rake, 2 Dutch. 574, 585. It is entirely clear that Elisha Curtis took an estate tail ;in the land in controversy.