To answer the first question, we must ascertain the intention of the devisor; and this can be learned only from his will. His first object seems to have been, to provide for his sons, during their lives; the second, to perpetuate his estate in his name and family. This, according to the notions of those days, could be effected only by an entailment. He therefore used expressions, which have always been understood to create an estate tail. In the first place, he created an estate of inheritance in his sons. He then forbade their selling it away from their lawful male issue. And lastly, he provided, that if either of his sons should die without such issue, his land should revert, and become the estate of his surviving sons, or their male issue. This completed the entailment in perpetuity, according to his views; though not according to the modern decisions. Chappel v. Brewster, Kirby, 175; Hamilton v. Hempstead, 3 Day, 332.
But the defendants claim, that Solomon, the devisee, took an estate in fee simple conditional or in remainder. I am satisfied, upon the authority of many adjudged cases, both English and American, that he took an estate in tail male general. * * *
2. What estate passed from the plaintiff, by his deed to the releasees? By the common law, a release is a secondary conveyance, and is a discharge of a man's right in land or tenements to another, who hath some former estate in possession. Shep. Touch. 318; 2 Bl. Com. 328. But in this State, a release is considered as a primary conveyance, and passes all the right of the releasor to the releasee, provided no other person be in possession adversely; and operates as a conveyance without warranty. 1 Sw. Dig. 133. But if he have no right, nothing passes, not even a chose in action. What estate, then, had the issue of the first donee in tail, during his life? My answer is, none. The plaintiff could, therefore, convey none. Such issue is only an heir apparent or presumptive. His title is the bare possibility, a mere chance, of becoming eventually the heir in tail; for the maxim is, "nemo est lucres viventis." And it is a well-settled rule, that a mere possibility cannot be released or conveyed; and the reason thereof is, that a release supposes aright in being. Shep. Touch. 319; Bac. Abr. tit. Release, H. Hence, it is holden, that an heir-at-law cannot release to his father's disseisor, in the lifetime of the father; for the heirship of the heir is a contingent thing; for he may die in the lifetime of his father. Ibid. This question was indefeasibly answered, by our great master Littleton, nearly four centuries ago. "If there be father and son, and the father be disseised, and the son (living the father) releaseth by his deed to the disseisor, the right which he hath, or may have, in the tenements, without clause of warranty, and after the father dieth, this son may lawfully enter upon the possession of the disseisor; for that he hath no right in the land in his father's life-time, but the right descended to him after the release made, by the death of his father; for no right passeth by a release, but the right which the releasor hath, at the time of the release made; and if he hath no right, the release is void." Littleton, § 446; Lanipet's Case, 10 Rep. 51 a. 'And in some cases, saith Sheppard (Touch. 321), "a release, like a confirmation, doth enure by way of abridgment. But a man cannot bar himself of a right that shall come to him hereafter; and therefore it is held, that these words used in releases, quae quovis modo in futuro habere potero, are to no purpose." This is a mere quotation from the text of Littleton (ubi supra) which is there sanctioned, by the commentary of Sir Edward Coke. ' But here, in the case which Littleton puts, where the son releases in the lifetime of his father, this release is void, because he hath no right at all, at the time of the release made, but all the right was at that time in the father; but after the decease of the father, the son shall enter into the land against his own release. 1 Inst. 265 a. And we are informed, by Lord Chief Justice Trevor, in delivering his opinion in Arthur v. Bokenham, Fitzgib. 234, that this text of Littleton had never been contradicted. Hargrave's Notes on Co. Litt. 265, a. n. 212. The same doctrine was recognized, by the Supreme Court of New York, in McCrakin v. Wright, 14 Johns. Rep. 193, wherein it was decided, that no title, not in esse, would pass by a deed of bargain and sale and quitclaim, unless it contain a warranty, in which last case, it will operate as an estoppel. And in Davis v. Hayden et at., 9 Mass. Rep. 514, it was decided, that nothing passes by a conveyance of land, of which the grantor is only heir apparent.
3. Is the plaintiff estopped to claim against his own deed? This question is already answered, by the citations from Littleton, § 446, and the case in 14 Johns. Rep. 193. "If there be a warrantie," saith Lord Coke (1 Inst, ubi supra) "annexed to the release, then the sonne shall be barred; for albeit the release cannot barre the right, for the cause aforesaid, yet the warrantie may rebut and barre him and his heirs of a future right." But the deed in question is a mere release or quit-claim, and contains no warranty, express or implied.
New trial not to be granted.
(3.) Words of Conveyance.
31 Missouri, 541. - 1862.
Ejectment. - The case was by agreement made to depend upon the question whether an instrument executed and delivered to plaintiff amounted to a conveyance in presenti. The court below held it did not.
Bates, J., delivered the opinion of the court. - It is difficult to determine what was intended by the maker of the instrument under which the plaintiff claimed title. In the memorandum attached to the instrument, and signed by John McKinney, it is called a codicil or supplement to his last will and testament, whilst in the certificate of acknowledgment the whole are called "the foregoing deeds of gift." It may not be necessary to define what is the character of the instrument, for if it be not a deed of conveyance in presenti, the plaintiff cannot recover upon it. In order to determine whether it be such a deed, the whole instrument must be taken together, and effect given, if possible, to every part of it. It does not contain the usual operative words of conveyance, and it contains an obligation to make (in the future) "a good, sufficient right and title to the said described tract of land, clear from me or any of the rest of my heirs, to the whole, sole right and property of my said son, James H. McKinney, and his heirs, forever." It appears to be reasonable, upon consideration of the whole instrument, to suppose that John McKinney believed that he had no power then to convey, and, therefore, he, in order to make a sort of partition of lands among his children, bound himself under a penalty to convey to each one a particularly described tract of land, so soon as he should have power to do so. Taking this to be the view and intention of John McKinney, we must see that he used words apt for that purpose. The only words which might by any construction be deemed operative words of present conveyance are the words " sign over." We cannot, however, think that they import more than an assignment of John McKinney's interest in the land, the title to which was then imperfect and inchoate, and, therefore, not operating as a present conveyance of the land itself sufficient to maintain an action of ejectment in the name of James H, McKinney.