Doe ex dem. Cobb v. Hines, 44 N.C. 343, 1 Busb. 343 (1853)

June 1853 · Supreme Court of North Carolina
44 N.C. 343, 1 Busb. 343


However untecbnical and ungrammatical a deed may be, yet it may be valid, if its words declare sufficiently and legally the party’s intention.’ Therefore, where by a very informal deed, A. “in consideration of good will and affection for bis son-in-law H.,” gave him certain slaves, and then followed this clause: “I also appoint H. agent of the following property, to wit,” (mentioning certain slaves,) “ and the following tracts of land,” (describing them,) “to be to use and benefit of my daughter C.,” &c.: — It was held, that the intention to give the land to the daughter being plain, the deed might operate as a covenant to stand seised, either to the use of H. as trustee for C., or to the use of C.; and quacumque via, the title had passed from A., and he could not recover in ejectment against H.

(The cases of Bronson v. Baynter, 4 Dev. & Bat. 393 ; Armjicld v. Walker, 5 Ire. 580; Spiñngs v. Hawks, ibid, 30; Davenport v. Wynne, 6 Ire. 129; Brooks v. Rat-cliff, 11 Ire. 321; and Kea y. Robeson, 5 Ire. Eq. 373, cited and approved.)

This was an action of ejectment, tried at the Spring Term, 1853, of Wayne Superior Court, before Manly, Judge. The pleas were — not guilty — statute of limitations.

The lessor of the plaintiff, upon the intermarriage of the defendant with his daughter, Cartha, had executed to him a paper writing, of which the material words were as follow :

“ Know all men by these presents that I, Enoch Cobb, for the inconsideration of the good will, favor and affection that I bear to Rewards my son and law James M. Hines, I give to the said James M. Hines the following negroes, <fcc. In witness whereof I hereunto set my hand and seal this 23 February 1839.

(Signed) E. COBB, [seal.]

I also place and set over and appoint James M. Hines agent of the hereafter named property, to be to use and benefit of my daughter Cartha, and the lawful heirs of her body to them and *344their successors, to wit, Patsy, Winny, Eilick, little Kedar, Abram and Smithea, and the following tracts of land [describing them] in witness whereof I hereunto set my hand and seal this 23d day of February 1839.

• Witness (Signed) E. COBB, [seal.]”

A. G. Jernigan, his

Thomas w Dail. Mark

In May, 1852, the lessor of the plaintiff demanded of the defendant possession of said land, and upon his refusal to surrender possession of the same, this action was commenced.

Cartha, named in the paper writing, died some ¿wo or three years before the suit was instituted, leaving three children surviving her, and now living. Said paper writing was duly acknowledged at the November Term, 1840, of Wayne County Court, and has been duly registered.

Upon the case agreed, from which the above is an extract, the Court gave pro forma judgment for the plaintiff, and the defendant appealed to the Supreme Court.

Moore, for the defendant.

1. The consideration here is what is commonly called good, being that of blood. It appears on the face of the deed and is therefore sufficiently declared. 2 Saund. U. & T. 81 ; 7 Rep. 133 ; Bedell’s case ; 2 Wilson Rep. 22 ; 2 Roll Abr. 782 pi. 3 ; 2 Shep. Touch. 512.

2. There being no valuable consideration, the words operate as a covenant to stand seised. The words of a deed may be transposed so as to give it validity, where the intent that it should operate is manifest. Kea v. Robeson, 5 Ire. Eq. 373; 1 Shep. Touch. 87 ; Smith v. Packhurst, 3 Atk. 136. The words here may be transposed thus, The hereafter named property [is] to be to the use and benefit of my daughter Cartha, <fcc., and I place and set over and appoint J. M. H. agent of the same,” or— connecting this part of the deed with the other — “ Know all men &c. that the hereafter named property, of which I place and set *345over and appoint J. M. H. agent [is] to be to the use of my daughter &c.”

Both bargains and sales, and covenants to stand seised Operate to transfer the legal title by virtue of the Statute of Uses. The only difference between them is in the consideration. Hence a deed may operate to make both kinds of assurance : as, if A, covenant that in consideration that B. is his son, he shall have a certain tract of land for life, and that C. has paid $100, he shall have it in fee. Burton on Real Prop. s. 145; 1 Rep. 145; 1 Shep. Touch. 221.

The covenant must be by words de presentí, and the words of this deed are such, clearly. Do these words make a covenant.? A covenant, “ is the agreement or consent of two or more, by deed in writing, whereby one of the parties doth promise to the other that something is done already, or shall be done afterwards.” 1 Shep. Touch, c. 7, p. 160 et seq. and notes 9 & 10 ; Platt on Cov. (3 L. Lib.) A deed poll may create them as effectually as an indenture. 1 Shep. Touch. 162.

No formal words are necessary to create either a bargain and sale, or a covenant to stand seised. 2 Saund. U. & T. 49, and 79, 80. In the latter, the word covenant is not necessary. Por-dage v. Cole, 1 Saund. Rep. 319. Agreed between A. & B. that B. shall pay A. a sum of money for his lands on a particular day ;” — these words amount to a covenant by A. to convey the lands, and are words of the future. So if the words had been “ It is hereby witnessed that A. has paid B. $100, and A. is to have a certain tract of land — or a certain tract of land is to be the property of A.;” these words malee a covenant de presentí, and raise a present use which the statute executes. If one at common law assigns a chose, though nothing passes, it is a good covenant, Bac. Abr. Cov. Letter A. ; Siegnoret v. Nognire, 2 Ld. Ray. p. 1242 ; Frontín v.-Small, 2 id. p. 1418. Assigna-vit makes the covenant. If A. make a deed to B. in these-words — “ I have in my custody one writing obligatory, being the property of B. in which &c., and I will be ready at all times, when required, to redeliver the said writing to the said B.” — tMsis a covenant by force of the words — I will be ready at all times &Ci Roll’s Abridg. 519. Covenant that A. shall have a piece *346of land for five years is a good lease. 1 Shep. Touch. 161 et seq. and notes 9 & 10. Covenant with one that if he marry my daugilter he shall have my land ; from the time of marriage he shall have it, 2 Shep. Touch. 512 : or — that one shall have my land, it is a good bargain and sale ; 2 Shep. Touch. 514, et seq. Covenants are to be always taken most strongly against the cove-nantor, and most in advantage of the covenantee ; and according to the intent of the parties. 1 Shep. Touch. 166.

If the words had been : The hereafter named property in consideration of five dollars is to be to the use and benefit of my daughter and the lawful heirs of her body ” — the conveyance would have been good as a bargain and sale. Therefore if blood is inserted in lieu, the deed becomes a good covenant to stand seised, 2 Shep. Touch. 511; 1 id. 224. See cases cited, 2 Saund. U. & T. 79, 80, and the cases cited in note. See also Bronson v. Paynter, 4 D. & B. 393 ; Armfield v. Walker, 5 Ire. 580 ; McAllister v. McAllister, 12 id. 184; Brooks v. Ratcliff, 11 id. 321 ; Davenports. Wynne, 6 id. 129 ; 1 Shep. Touch. 82 — 86 et seq. and n. 94 at p. 92 ; Parkhurst v. Smith, Wilies Rep. 332.

If the covenant is not with Mrs. Hines, it is with the trustee, her husband, and the consideration of marriage, which e&tends to him, and of blood which extends to his wife, is sufficient to vest the estate in him, for her use ; 2 Shep. Touch. 523. And this makes him both trustee and tenant by the curtesy.

J. H. Bryan and Wright, contra.

Battle, J.

The deed under which the defendant claims, and by virtue of which he seeks to defeat the recovery of the plaintiff’s lessor, is, as must be admitted, very informal. It is untechnical, ungrammatical, and totally at variance with all the recognized rules of orthography, and yet it may be valid, if there be sufficient words to declare clearly and legally the party’s meaning. ’ ’ 2 Black. Com. 298. It is our duty now to inquire whether the words contained in this deed be sufficient to enable us to pronounce what is the party’s meaning. It may facilitate our inquiries to recur to fundamental principles, and ascertain what rules have been established by the sages of the law, for the construction of deeds. The three following given by Blackstone in *347his Commentaries, (2 Black. Com. 379,) and supported by many authorities both before and since his day, will be sufficient for our purpose. These rules are :

1st. That the construction he. favorable and as near the minds and apparent intents of the parties as the rules of law will admit. For the maxims of the law are, that verba intentioni debent inser-vire; and benigne interpretamur chartas propter simplicitatem lai-corum. And therefore the construction must also be reasonable, and agreeable to the common understanding.”

2nd. u That quoties in verbis nulla est ambiguitas ibi nulla ex-positio contra verba fienda est; but that, where the intention is clear, too minute a stress be not laid on the strict and precise signification of. words; nam qui haeret in litera, haeret in cortice. And another maxim of law is, that mala grammatica non vitiat chartam ; neither false English nor bad Latin will destroy a deed. ’ ’

3rd. That the construction be upon the entire deed, and not merely upon disjointed parts of it. Nam ex antecedentibus et consequentibus Jit optima interpretatio. And therefore that every part of it be, if possible, made to take effect, and no word but what may operate in some shape or other. Nam verba debent intelligi cum effectu, ut res mar gis valeat quam per eat.’’ ’ See Smith v. Parkhurst, 3 Atk. Rep. 135. Preston Ed. of Shep. Touch, vol. 1, p. 87. Bronson v. Paynter 4 Dev. & Bat. Rep. 393. Armfield v. Walker, 5 Ire. Rep. 58. Davenport v. Wynne, 6 Ire. Rep. 129; Kea v. Robeson, 5 Ire. Eq. Rep. 373, and Brooks v. Ratcliff, 11 Ire. Rep. 321.

Now if we apply these rules and the principles plainly deducible from them, to the deed under consideration, we think that the intention of the parties may easily be ascertained from the words which they have employed. In the first part of the instrument, the donor gives, in language which admits of no doubt, certain slaves to his son-in-law, declaring that he 'so gives them because of the good will, favor and affection which he bears towards him. He then proceeds, I also place and set over and appoint James M. Hines, (the defendant, his son-in-law,) agent of the hereafter named property, to be to the use and benefit of my daughter Cartha, and the lawful heirs of her body to them and their successors, to wit ” &c., naming certain slaves, and the tract of land *348now in dispute. The defendant’s counsel contends that these words contain, in substance and effect, a covenant by the plaintiff’s lessor, to stand seised to the use of his son-in-law, or of his daughter, the defendant’s wife; that the consideration is either expressed in the deed, by means of the reference to that recited in the first part, or that it is implied from the relationship of the parties apparent in the deed ; that the relationship, whether of consanguinity to the daughter, or affinity to the son-in-law, is a good consideration, sufficient to raise an use, and that therefore the deed is effectual to transfer the land either to the daughter or son-in-law; and in either case, the plaintiff’s lessor cannot recover. For these positions the counsel cites the following, among other authorities :—Bac. Abr. tit. Cov. Letter A. Platt on Cov. 3, (3 Law Library.) Bedell’s case, 7 Rep. 40. 2 Saund. on Uses and Trusts, 81. Milbourne v. Simpson, 2 Wils. Rep. 22. 2 Pres. Shep. Touch. 512, (31 Law Lib.) The counsel for the plaintiff’s lessor, on the other hand, contends that the words relied upon by the defendant are unmeaning, that no covenant is expressed, and that none can be implied, because it would be repugnant to the idea of an agency in the son-in-law, that no sufficient consideration appears to raise a use either to the daughter or son-in-law, and that the instrument is thefefore'void and of no effect; and he cites in support of his argument Co. Litt. 49, a., and Springs v. Hawks, 5 Ire. Rep. 30. We think that it is clear that the plaintiff’s lessor intended to give to his daughter and the heirs of her body, or to his son-in-law for the usé: of his daughter and the'heirs of her body, the land and slaves mentioned in the second part of the instrument in question-. This appears plainly from the fact, that having given certain slaves to his son-in-law in the first part of the deed, he commenced the second part with saying, I also place &c. James M. Hines agent of the hereafter named property,- to be to me and benefit of my daughter Cartha ” &c. What could he mean, if he did not intend his daughter to' have the use of the property which he proceeds to enumerate ? The authorities cited clearly show that no particular words or form of expression are necessary to create a covenant. They show that the relationship of the parties, appearing on the face of the deed, is sufficient to manifest the consideration arid *349raise an use ; and that relationship by affinity to a son-indaW is a good consideration ; why then cannot the deed operate according to the intention of the covenantor 1 The parties to the deed are certain, the property intended to be conveyed is certain ; and yet we are told that because the son-in-law is appointed agent instead of trustee for the daughter, or because he stands between the father and his daughter, the property cannot go to her use. To this objection we-give an answer in the grave and emphatic language of Lord Chief Justice Willes, in the case of Smith v. Packhurst, before referred to : "Another maxim .is, that such a construction should be made of the words of a deed, as is most agreeable to the intention of the grantor; the word's are not the principal thing in a deed, but the intent and design of the grantor ; we have no power indeed to alter the words, or to insert words which are not in the deed, but we may and ought to construe the words in a manner the most agreeable to the meaning of the grantor, and may reject any words that are merely insensible. These maxims my Lords, are founded upon the greatest authority, Coke, Plowden, and Lord Chief Justice Hale ; and the law commends the astutia, the cunning of Judges in construing words in such a manner as shall best answer the intent; the art of construing words, in such a manner, as shall destroy the intent may shew the ingenuity of, but is very ill becoming a Judge.” An instance of this astutia is given by Blackstone, 2 Com. 298, when he says that by the grant of a remainder, a reversion may well pass and e converso. In the deed before us the intent of the father'to give property to the use of his daughter is plain, and that intent may be effectuated, by construing the word agent to mean trustee, and it may be so construed without doing much violence to its proper meaning ; for a trustee is in some sort an agent to manage property for the benefit of another.

We think that we can do this, and that we ought to do it, and thus escape the condemnation pronounced upon Judges who exercise their ingenuity in construing words so as to destroy, instead of to give effect to the intention of parties as manifested in their deeds. Whether the operation of the deed was to vest the legal estate in the defendant in trust for his wife and her heirs, or whether she took the legal estate so as to give him a life estate as *350tenant by the curtesy, the lessor of the plaintiff cannot recover. The judgment in favor of the lessor must therefore bo set aside, and judgment of nonsuit be entered according to the case agreed.

Pek Curiam. Judgment accordingly.