# Vanhorn’s Lessee v. Harrison

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Vanhorn’s Leſſee verſus Harrison.
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The Chief Justice now recapitulated the material points, and delivered the opinion of the Court as follows.
M‘Kean, Chief Juſtice. This cauſe comes before the Court on a caſe made for their opinion. The caſe is long, and has ſtated ſeveral particulars, which can have but little influence upon the deciſion.
The material facts are: That a certain Johannes Vandergrift was ſeized in fee of the premiſes in queſtion, and, being ſo ſeized, by his laſt will and teſtament in writing, dated the 16th March 1732, deviſed the ſame unto his eldeſt ſon Abraham in fee-tail, with remainder in fee to all his other children. And afterwards, by a deed or inſtrument in writing, ſealed and delivered, bearing date the 31st of Auguſt 1743, “In conſideration of natural affection, he gives, grants &c. fully, freely, abſolutely and clearly, the ſame premiſes, to his ſon Abraham Vandegrift, together with all the rights, titles, intereſt, claim and demand whatever, which he then had in the ſaid granted premiſes, or any part thereof, To have and to hold unto him only the ſaid Abraham Vandergift, without any further condition, as he had fully, freely and abſolutely, and of his own accord ſet and put in further teſtimony &c.”
If this conveyance paſſed a fee to the ſon Abraham Vandergrift, then judgment muſt be for the defendant; but if an eſtate for life only, then judgment muſt be for the leſſors of the plaintiff: For, ſuppoſe the will of Johannes Vandergrift, which was executed prior to the conveyance, is taken into the caſe, yet the ſon Abraham had thereby only an eſtate-tail, which is ſpent by his death, without heirs of his body lawfully begotten.
When this caſe was firſt argued, the counſel on both ſides conſidered it only in two points of view, to wit, Firſt, Whether the conveyance from Johannes Vandergrift to his ſon Abraham was to be conſtrued as an original conveyance at common law, or as a covenant to ſtand ſeized to uſes? And, ſecondly, What was the intention of the parties, as to the eſtate which was to paſs?
Mr. Sergeant contended, that it was an original conveyance at common law, and let the intention of the parties be what it may, it could only paſs an eſtate for life to the ſon, for want of proper words of inheritance.
Meſſrs. Wilcocks and Lewis inſiſted that this deed muſt be conſidered, a covenant to ſtand ſeized to uſes, and that it ſhould receive the like conſtruction with a will, that is, to be governed by the intention of the parties. In ſupport of their firſt poſition, “that it muſt be taken to be a covenant to ſtand ſeized to uſes,” they cited. 2 Wilson 22. 75. Carthew 38. Comberbach 128. S. C. 10. Mod. 35. 36. 1 ​ Atkyns 8. 1 Mod. 175. 2 Levinz to 3 Levinz. 372. 1 Bac. 274. For the ſecond poſition, they cited, Carthew 343. 1 Co. 100 b. 101 a. Littleton's Rep. 347. 5 Mod. 266. And they concluded, that if this inſtrument had been a will, it would appear manifeſtly to be the intention of the parties to paſs a fee; for which they cited 6 Mod. 109 110. Cro. Car. 450. 1 Ld. Raymond 187. 2 Will. 524.
Mr. Sergeant, in his reply, ſaid, that the deed of 1743 muſt operate as a feoffment, and relied upon the following authorities. Co. Lit. 9. a 1 Vol. Pennſylvania laws pa. 78. Prec. in Chan. 580. Lilly's Conveyance 613. 614. 646. 2 Inſt. 672.
Upon hearing this argument, and reading the books that had been cited on both ſides, and full conſideration of them, it appeared to me, that this deed, or inſtrument, ought to be taken as a covenant to ſtand ſeized to uſes, and that the law has been long ſettled, that a deed ſhall be conſtrued either as a common law conveyance, or a ſtatute conveyance, if it can be taken both ways, as will beſt tend to give it all the effect the parties intended. This deed then has every requiſite neceſſary to conſtitute a deed of covenant to ſtand ſeized to uſes. 1ſt. Here is a ſufficient and proper conſideration, viz. natural affection. A conſideration may be either a good, or a valuable one. A good conſideration is that of blood, or natural affection, or love; as when a man grants an eſtate to a near relation, as in this caſe, to his eldeſt ſon. Blood or marriage are the moſt common and ſuitable conſiderations in this ſpecies of conveyance. The valuable conſideration is ſuch as money, marriage, or any other equivalent given for the grant. 2 Black. 207. 336. 2d. It is a deed. 3d. Johannes Vandegrift was ſeized in fee. 4th. Here are apt words to convey lands; and the word grant, which is in the deed, has been adjudged in the caſe of Wilkinſon's leſſee vs Farmer &c. (2 Wilſon 175, 1 Mod. 175.) ſufficient, of itſelf, to create a covenant, and to raiſe an uſe. Theſe are all the circumſtances neceſſary to make a good deed of covenant to ſtand ſeized to uſes.
As to the other point:—How this conveyance was to be conſtrued, whether as a deed at common law, or, like a will, according to the intent of the parties? I was, at firſt, of opinion, from the general doctrine laid down in all the books cited at the bar, that the intention of the parties was to govern in the ſame manner as in a will; and of that intention I had no doubt; for by the words uſed in the premiſes, if unreſtrained by the habendum, it appeared mantfeſtly, that Johnannes Vandergrift had given all his right, title, intereſt, claim and demand whatſoever, which he had in the land, unto his ſon Abraham, freely, abſolutely, and clearly &c. which words in a will would unqueſtionably paſs a fee. But having, afterwards, met with two cafes in 4 Burn's Eccleſiaſtical Law pa. 110 and 118. I heſitated. A ſecond argument was, therefore, had on the 18th of December laſt, when the queſtion, that alone admitted of controverſy to wit, how far this deed of covenant to ſtand ſeized to uſes, ſhould be conſtrued like a will, was fully conſidered by Mr. Bradford. He contended, that it required ſuch technical words, as are ​ uſed and neceſſary in deeds at common law to paſs an inheritance, that in all deeds the word heirs is neceſſary to paſs a fee; this is the general rule, and though there are exceptions, yet this ſpecies of conveyance to uſes is not among them; which appears 1ſt, from the ſilence of approved writers on this ſubject. To ſhew which he cited, 2 Black 108. Bac. Abr. 252. 3. Comyn's Digeſt. 214. Shepherds Touchſtone of aſſurances, fo. 101. (97, of new edition) Co. Lit. 9. 2dly. From a variety of expreſs and poſitive authorities. 3 Black. 370. 1. Co. 87 b. Co. Lit. 10. a. Shepherd's Touchſt. 102. 106. 1 Comyn's Digeſt. 543. 1 Co. Rep. 100 b. Gilbert's Uſes and Truſts 75. 76. And 3dly, that words, eſſential to convey a fee in a deed at common law, are neceſſary ſince the ſtatute of uſes, 27 Hen. 8 ch. 10. in a covenant to ſtand ſeized to uſes. To prove which he cited 5 Bacon 357. 1 Rolls Abr. 837. Cro. E. 478. 2. Lill. Reg. 112. Sir Thomas Raym. 317. 2 Ld. Raym. 115. 2. 4. &c.
We have ſince heard the counſel for the defendant in anſwer, who chiefly dwelt upon the deed of 1743 having a relation to the eſtate which the covenantor had, that he having a fee, had by relative words conveyed that fee to his ſon; and they relied upon 2 Comyns 215. Shep. Touchſt. 121. Co. Lit. 9. b.
Upon the whole, the Court have, unanimouſly, formed the ſame opinion as the Plaintiff’s counſel, after the moſt mature conſideration.
1. This deed is a covenant to ſtand ſeized to uſes.
2. Before the ſtatute of uſes, viz. 27 Hen. 8. ch. 10, this deed would have paſſed a fee, 1 Co. Rep. 100 b. Shetley's caſe, though the word heirs is not in it. But ſince that ſtatute, the limitation of uſes is in many caſes governed by the rules of common law; and no inheritance, in a covenant to ſtand ſeized to uſes, or other deed to uſes, can be raiſed, or new eſtate created, without the word heirs; becauſe the uſes are now transferred into poſſeſſion, and therefore muſt be governed by the rules of poſſeſſion at common law. 5 Bacon's Abr. 350. 356. and the caſes there cited. And at common law, though the intent of the parties be ever ſo fully expreſſed and manifeſted in a grant or other deed, without the word heirs, a fee ſhall not paſs. 6 Mod. 109. 2. Vezey 252. 1 Wilſon 351. 2 Blackſt. Reports.
3dly. There are no words in this deed, either technical or relative, that can raiſe a fee, and conſequently Abraham Vandegrift had thereby only an eſtate for life in the premiſes.
Let judgment be entered for the Plaintiff.