Halifax,
April Term, 1793.
EJECTMENT. In the trial of this cause, a question, arose upon by a deed of bargain and sale, made to the lessor of the plaintiff, by his father, in the year 1771, of the premises in question, which conveyed the whole estate absolutely to the bargainee; but in the premises of the deed there is an exception of the grantor’s life time in any part or parcel of the land; though this exception is not in the habendum. Whether the lessor of the plaintiff took a fee by this conveyance, as a life estate was reserved to the grantor.
Davie for the defendant,
laid it down as an established rule of law that a fee cannot be created by deed to take effect or arise in futuro : and here he said, the grantee was not to take till after the grantor’s death.
*29Mr. Att. Gen. Haywood
entered into a discussion of the doctrine of uses, to shew that the use might be limitted to take effect in this manner by the stature of uses*; although it would not have been good at the common law.
But the Court,
Ashe, J. and Williams, J.
stopped the Att. Gen. saying they differed with him in opinion, with respect to the operation of the statute of uses: but they were clearly of opinion without hearing Haywood farther, that here the fee immediatiately passed to the grantee, and the reservation was void.