Freeholds. I. Freeholds of inheritance or fees.

I. Limitation of a Fee in Its Creation or Transfer. Words of Limitation.

a. By deed inter vivos - at common law.

(1.) The General Rule as to Necessity for Technical Words of Limitation in a Transfer or Reservation.

Adams V. Ross

30 New Jersey Law, 505. - 1860.

Application by Ross, mortgagee, for moneys paid into court as the value of a portion of the mortgaged premises taken in fee by the Erie Railroad Co., by exercise of the right of eminent domain under its charter. Ross claimed the whole of the money; other parties claim to be interested. The court below allowed Ross but a part of his claim and from that decision he brings error to this court. The facts appear at large in the opinion.

Whelpley, J. - This writ of error brings up for review the judgment of the Supreme Court, giving a construction to a deed, dated the 9th of September, 1854, between Anna V. Traphagen, of the first part, and Catharine Ann V. B. Adams, wife of Alonzo Whitney Adams, of the second part, by which the grantor, in consideration of natural love and affection and of one dollar, conveyed to the grantee the premises in the deed described. The operative words are grant, bargain, sell, alien, remise, release, convey, and confirm unto the said party of the second part, for and during her natural life, and at her death to her children which may be gotten of her present husband: to have and to hold the above described premises unto the said party of the second part for and during her natural life, and at her death to her children which may be gotten of her present husband, Alonzo W. Adams.

The deed contains covenants of seizin, for quiet enjoyment, against encumbrances, for further assurance and of warranty. These covenants are made by the grantor for herself and her heirs with the party of the second part, her heirs and assigns.

Mrs. Adams, at the date of the conveyance to her, was a minor. On the 12th October, 1855, she, with her husband, executed a mortgage to secure the payment of $6,000 in one year from date, upon the premises conveyed to her. She was then nineteen. The mortgage was to Ross, the applicant in the Supreme Court.

The Erie Railway Company, under the provision of an act of the legislature took a part of the land in question, and hold it in fee simple. The value of the land taken has been ascertained at $3,061; that is now in the Supreme Court, to be awarded to the parties entitled to it, and who they are must depend upon the true construction of the deed.

What, then, are the rights of Mrs. Adams, her husband and children, one having been born of the marriage since the conveyance; and what, if any, are the rights of Ross, the mortgagee to the money in court.

The Supreme Court held, that the estate granted by the deed was an estate in fee tail special in Catharine Adams and the heirs of her body by her present husband; that her husband was entitled to curtesy; that the mortgage to Ross on the interest of Mrs. Adams was void as to her, but was a lien upon the estate of her husband, in case he survived her.

This decision was reached by interpreting the word " children," in the deed, as equivalent " to heirs, calling in the covenants in aid of that interpretation, as throwing light upon what the court called the intention of the grantor.

The Supreme Court was right in holding the first estate conveyed to Mrs. Adams, not a fee simple; the express limitation of the estate to her during life, and after her death to her children, forbade any other conclusion. The covenant, warranting the land to her and her heirs general, cannot enlarge the estate, nor pass by estoppel a greater estate than that expressly conveyed. A party cannot be estopped by a deed, or the covenants contained in it, from setting up that a fee simple did not pass, when the deed expressly shows on its face exactly what estate did pass, and that it was less than a fee.

Rawle on Cov. for Title, 420; Blanchard v. Brook, 12 Pick. 67; 2 Co. Litt. 385b.

Lord Coke expressly says: But a warranty of itself cannot enlarge an estate as if the lessor by deed release to his lessee for life, and warrant the land to the lessee and his heirs; yet doth not this enlarge his estate.

Justice Vredenburgh, in his opinion, admits this to be law. He says, although the covenants cannot be used to enlarge the estate, yet they may be used to show in what sense the words in the conveying part of the deed were used. What is that but enlarging what would otherwise be their meaning? If without explanation they are insufficient to pass the estate, does not the explanation enlarge their operation?

The learned judge, in his elaborate opinion, says: From these covenants, it is demonstrated that, by the terms children by her present husband, the grantor intended the heirs of her body by her present husband. It follows from this argument, that although the conveying part of the deed may not contain sufficient to convey the estate as a fee simple, for example, yet that if the covenants show an intent to pass a fee simple, it will pass.

The argument is, that the words of conveyance and covenant must be construed together. If the covenants look to the larger estate, that will pass upon the intent indicated. Children are said to be equivalent to heirs, because she warranted to her heirs; and the heirs are said to be not heirs general, because she called them children.

The inconsistency between the conveyance and covenant shows mistake in the one or the other. The safest rule of construction is that propounded by the Supreme Court; that the quantity of the estate conveyed must depend upon the operative words of conveyance, and not upon the covenants defending the quantity of estate conveyed.

Starting with that premise, it seems difficult, nay impossible, to reach the conclusion, that the covenants are to be looked to in the interpretation of the conveyance, as such.