This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
47. Lewis v. Mcgee 1 H. K. Marsh. (Ky.) 199; Hunter v. Watson, 12 Cal. 363, 73 Am. Dec. 543; Morgan v. Hazlehurst Lodge. 53 Miss. 665; Neal v. Nelson, 117 N. C. 393, 53 Am. St. Rep. 590.
It is immaterial in what part of the conveyance the grantee's name or identity is made to appear,50 but if a person is named as grantee in the premises, another person not named therein, but named in the habendum, cannot take an estate under the convevance otherwise than by way of remainder.51
- Uncertain grantee. Occasionally a conveyance is made in terms to the heirs of a particular person, which person is still alive. There is obviously no room for objection to the validity of such a conveyance
23 S. E. 428. But when a consideration is paid, an equity has occasionally been recognized as existing in favor of the heirs. Hutto v. Hutto, 66 Fla. 504, 63 So.; Johnson v. John L. Roper Lumber Co., 168 N. C. 226, 84 S. E. 289.
In City Bank v. Plank, 141 Wis. 653, it was held that a conveyance in terms to a person deceased was valid, on the theory that by the use of the name of deceased it was intended to designate his executor, the inference being very strong that when the parties to a transaction know that a person named is dead, they intend, in using his name, to designate a living person..
48. Simmons v. Spratt, 20 Fla. 495, 8 So. 123; Mclnerney v. Beck, 10 Wash. 515, 39 Pac. 130, But see Arnett v. Fairmont Trust Co., 70 W. Va. 296, 73 S. E. 930, where a bequest to the "estate" of one deceased was regarded as passing the property to the personal representative.
49. Shaw v. Loud, 12 Mass. 447; Hoover v. Malen, 83 Ind. 195; Boone v. Moore, 14 Mo. 421; Gearheart v. Tharp, 9 B. Mon. (Ky.) 31.
50. Spyve v. Topham, 3 East 115; Richey v. Sinclair, 167 I11. 184, 47 N. E. 364; Berry v. Billings, 44 Me. 416, 69 Am. Dec. 107; Bay v. Posner, 78 Md. 42; Irwin v. Longworth, 20 Ohio, 581; Henniges v. Paschke, 9 N. Dak. 489, 81 Am. St. Rep. 588; Co. Litt. 7a; Sheppard's Touchstone, 75; 2 Preston, Conveyancing, 435.
51. Norton, Deeds, 287; Sheppard's Touchstone (Preston's Ed.) 237; Samme's Case, 13 Coke, 54; Husted v. Rollins, Iowa, 137 N. W. 462, 42 L. R. A. (N. S.) 379; Blair v. Osborne, 84 N. C. 417; Moore v. City of Waco, 85 Tex. 206; Adams v. Dunklee, 19 Vt. 382; Cox v. Douglass, 20 W. Va. 175; Weekly v. Weekly, W. Va. 83, S. E. 1005. Contra, to the effect that one not named in premises may take otherwise than by way of remainder, see Mc-leod v. Tarrant, 39 S. C. 271, 17 if the word "heirs" is in the particular case intended as a designation of ascertained persons, the living children, for instance, of the person named.52 But it has been decided in a number of cases that if the word "heirs" is in such case used in its technical sense, and the attempted conveyance to the heirs is not by way of remainder, it is invalid for lack of any ascertained grantee.53 And it has been decided that, for the same reason, a conveyance, not by way of remainder, to unborn children of a particular person, is invalid.54 The validity of such a conveyance when by way of contingent remainder, has on the other hand been freely recognized.55
At common law, that is, before the Statute of Uses, such a conveyance to persons not ascertained or not in being was valid only if by way of contingent remainder, since otherwise there was no person to whom the livery of seisin could be made,56 and this distinction between a conveyance by way of remainder and not by way of remainder was applied even in the
S. E. 773 (Mclver, C. J. dissenting).
52. Tharp v. Yarbrough. 79 Ga. 382, 11 Am. St. Rep. 439; Seymour v. Bowles, 172 I11. 520. 50 N. E. 122; Tinder v. Tinder, 131 Ind. ,181, 30 N. E. 1077; Heath v. Hewitt, 127 N. Y. 166; 13 L. R. A. 46, 24 Am. St. Rep. 438; Huss v. Stephens, 51 Pa. St. 282; Robertson v. Wampler, 104 Va. 380, 51 S. E. 835.
53. Duffield v. Duffield 268 I11. 29, 108 N. E. 673; Tinder v. Tinder, 131 Ind. 381, 30 N. E. 1077; Booker v. Tarwater, 138 Ind. 385, 37 N. E. 979; Hall v. Leonard. 1 Pick. (Mass.) 27; Morris v. Stephens, 46 Pa. St. 200. But see Bailey v. Willis. 56 Tex. 212.
54. Davis v. Hollingsworth, 113
Ga. 210, 84 Am. St. Rep. 233, 38 S. E. 827; Faloon v. Sim-shauser, 130 I11. 649, 22 N. E. 835; Morris v. Caudle, 178 I11. 9, 44 L. R. A. 489, 69 Am. St. Rep. 282, 52 N. E. 1036; Miller v. Mcalister, 197 I11. 72 64 N. E. 254; Dupree v. Dupree, 45 N. C. 164, 59 Am. Dec. 590; Newsom v. Thompson, 2 Ired. L. (24 N. Car.) 277; Lillard v. Ruckers, 9 Yerg. (Tenn.) 64.
55. Co. Litt, 378a; Norton. Deeds, 319; Boraston's Case, 3 Co. Rep. 20a; Sharman v. Jackson, 30 Ga. 224; Mudge v. Ham-mill, 21 R. I. 283, 79 Am. St. Rep. 802, 43 Atl. 544. See cases cited ante, Sec. 136 (b).
56. Ante, Sec. 156.
1596 Real, Property. [Sec. 434 case of a conveyance by grant,57 in analogy, presumably, to the case of a conveyance by livery, since there was nothing in the nature of a common-law grant to suggest such a distinction. Consequently the modern decisions, in recognizing this distinction, are supported by the common law authorities. It is somewhat difficult, however, to see why the validity of a conveyance in favor of the heirs or unborn children of A should, at the present day, be dependent on whether, by the same instrument, a particular estate is created in favor of B; and such a conveyance might, it is submitted, well be sustained, without any particular estate, as creating an executory interest, valid by force of the Statute of Uses, or local state statute,58 to mature into an estate upon the ascertainment or coming into existence of the grantees named. A devise to unascertained or non existent persons, if not offending the Rule against Perpetuities, is perfectly valid,59 and there would appear to be no sufficient reason for applying a different rule in this regard to a conveyance inter vivos. The language of some of the cases, above cited, would seem to suggest that the asserted invalidity of a conveyance to unascertained or non existent persons is based on the theory that a conveyance by deed is necessarily a bilateral transaction, and that consequently the grantee must be in existence at the time of the delivery of the instrument in order that there be an acceptance thereof.'1" Even the courts, however, which profess to recognize the necessity of the acceptance of a conveyance, in effect admit that a conveyance is perfectly valid although the grantee is an infant, mentally and legally incapable of acceptance,61 and if the impossibility of acceptance dispenses with, its necessity when such impossibility arises from per57. Perkins, Sec.Sec. 52, 53; Shep-pard's Touchstone, 235; Bacon's Abridgment, Grant (C).