#### Den, on *the*demise of Sasser *per*Guardian *v.*Blyth.

A, seised in fee of the premises in question, - executed a deed to his son, in which he slated that for the preferment of his son, he conveyed the land to him and to his heirs forever: Provided that this deed sbatl not take effect during the lives of the grantor and his wife ¡ but the premises should remain first to hitt) for his natural lift: and then to her for her life: *held,*that the last clause of the deed was a good reservation of the life estates and that the fee is a good remainder upon them. s

Ejectment. And special verdict, stating in substance, that *John Sasser, sem*being seised in fee of the premises in question, in April. 1774, executed a deed to iiis son ; in *v*hioh it is staled that for the better preferment of his son, &c. he conveyed to him several tracts of land described in the deed. And amongst others, the premises in question, to him and bis heirs forever.* In which deed is contained a clause to the effect following, *to-witz*Provided that this deed shall not take effect during the lives of the grantor and his wife, but the premises therein mentioned should remain, first to him for his natural life.then to bis wife for her.natural life. *John,*the grantee, died seised in fee, intestate, leaving a brother who died intestate, leaving *James,*bis only son, an infant. John, the elder, also on the fifth of June, 1778, executed a deed for the premises in question, in consideration of naniral affection, to his daughter *Mary Myth,*and her heirs, after *300his decease, on condition that she and her husband should live with him, and take care of him, and also by another deed, dated the 24th January, 1782, he. granted the premises to his said daughter in fee, absolutely and without any proviso. *John,*the elder, died seised in 1782. *John Sasser,Jun.*lived wi‘h *John,*the elder, till his death, in 1776. *Mary Myth,*and her husband, lived with him in like manner, and continued in possession after the old man’s death.

*Baker*for the Plaintiff

The deed to *Sasser,*the son, may operate as a feoffment, or deed of gift, or conveyance under the act of 1715, c. 38, s. 6, which after directing the registration of deeds, says, and ail deeds so done, and executed, shall be valid, and [mss estates in lands, or right to other estate, without livery of seisin, attornment or oilier ceremony in the law whatsoever.-*Under this act, all deeds in whatsoever form they may be drawn., where they evince an intent to convey, shall have the effect, if registered, that, the parties intended them to have. If intended to opérate as a feoffment, they shall operate as such, without the ceremony of live;y of seisin. If drawn in the form of a deed of gift, so that in strictness it is neither a feoffment nor deed under the statute of uses, yet if there appeals to. he a clear intent to pass the lands, and the deed be registered, it shall be effectual. If it can be called neither a feoffment nor deed of gift, if registered, it shall he sufficient — the intent of the parties being apparent. This act meant to establish all deeds without regard to their form, whether they were deeds at the common law, or under the statute of uses, or neither the one nor the other, where there was an intent of the party to convey. We may well consider this as a deed of feoffment, the art takes away the necessity of livery and seisin ; and if we consider it as a deed of feoffment, then the proviso is void, as being repugnant to the body of the deed, and (he grantee had a present state. New invented clauses against the nature of the estate granted, have always been held invalid, as being repugnant to the grant. *Co. Lift.*282, *b.*in the notes. *Co. Lift.*377, *b.*in the notes. 6 *Rep*41. *Litt. s.*S50, Such as a feoffment with a clause of non-alienation. 2 *Hep.*23. Or a deed to a man and his heirs, *habendum*from 99 years to 99 years, for 300 years. The thii d resolution in this case was, that . i *habmdum*repug' .mt to tiie premises is void. *Cro. Elia.*254, 255. *jSaben-**301*dum*after the death of the grantor, and no estate limited in the premises, is void. 2 *Ba. M.*498. Grant of the reversion dependant upon an estate for three liv< s, *ha-bendum*to A. tor life, which estate to begin after the three lives were expired, is a good grant of the reyersion, and vest a present reversionary interest, the *habendum*being void. 6 *Rep. 41, Mildmay’s case. No*condition shall make an estate to cease as to one and revive as to the other. Here was a condition, that he. should not. suffer a common recovery, and if he attempted it, that then the estate, to one should cease, and revive and commence in another. All these cases prove that a subsequent part of a deed, derogatory to a former part, and tending to lessen the powers over the estate granted in the preceding part, are void. This proviso is of that nature — it lrssens the estate granted in the premises, which was an estate to commence *in presentí,*by making it to commence not till after two lives in being. It is a proviso totally incompatible with the premises and derogatory to them, as it attempts to take from the grantee, part of the estate already granted in fee in the (¡remises: or viewing it in the most favourable point we can, it is in the nature of an *habendum,*that attempts to make an estate of free» hold to commence *in futuro,*after an estate in fee already granted in the premises. Such a proviso is void in law ; of consequence a present estate in fee passed to the ancestor of the lessor of the Plaintiff, Much hath come by regular descent to him, and he is therefore entitled the judgment of the court in his favour upon this special verdict.

But let it be granted that the proviso is valid, or at least equally valid with the other parts of the deed, and to be considered in making a construction upon it. It will then appear to have been the intent of the parties to defer the possession till after the death of the grantee— will it follow, that this is necessarily a freehold to commence *in futuro ?*I say it will *not: it*may be a remainder expectant upou an estate for the life of the grantor, to take effect in possession after the determination of this particular estate — such a construction is made by arranging the clauses in the deed in the same older as they are arranged by the sense and meaning of the deed, and by the intent of the parties; by transposing the clauses, and making the latter part to precede the first, in w hich order if they had been at first placed, there would have been *302now no objection to this latter pait for repugnancy. such transposition will bring us to the true ami evident meaning of the parties, what rule of law hinders the making it? What principle of reason forbids it?— Tln re is none, hi truth, such construction is warranted by law ; for when land is conveyed under the statute of uses to A. after the life of the grantor, the law deems so much of the use as is not conveyed away, to remain in the grantor; and that being an use commensurate with bis life, there still remains in him a freehold use, which will continue, until the estate granted commences in possession, and so not a freehold to commence *in fu-turoi*but a fee dependant upon a freehold, is conveyed. Covenants to stand seised, are supported upon this principle — if a ¡nhn covenants to stand seise.d ¡o the use of another in fee, to commence after his death, it is good to pass the reversion to the grantee. The law implies an use for life in the grantor, sufficient to support the estate *in futuro*when it cometh *in esse.*The principle universally applied in all such cases is, that the. law will con-Sfrue the deed to be such an one, by being which, it will be in law competent to pass die estate as the'parties intended, *nt res migis valent quam pereat.*It is the business of Judges so to construe, deeds, as that they shall operate in such manner as will effectuate the intent of parties- 5 *Bac. M.*365. A covenant, to stand seised to the use of one’s seif, remainder over, is good in the .respect of the remainder; as to what a remainder or to stand seised is, the consideration of blood is a sufficient consideration for if. *5 Bac.'M.*ñ66, A covenant to staml seised, operates without any transmutation of possession. This is the substantial and sole definition of that con veyance, and agrees perfectly with the deed now before 'he court, and first mentioned in the special verdict; which if not good as a feoffment, grant of the reversion, deed of gift, or conveyance under the act of 1715, for want of some essential circumstance peculiar to each of these species of conveyances, then it mav be construed a covenant to stand seised, *ut res magis*valent, as it agrees substantially with the definition of that instrument — whereby the es’ate will pass according to the intent of parties. Any words used in a grant, however unlike those that are most proper for such a conveyance, may cause the conveyance to be taken as a covenant, to stand seised, if they purport the same in substance as is expressed by the most *303proper words. 2 *Wils.*22, *75. Shep. Touch. Free.*82;. 83‘ ■ 3 ®3r. 1 *Mod. 175.*if the deed now under consideration, can be legally construed to be a covenant to stand seised, as these authorities prove it may, then this deed is no more than a covenant to stand seised to the use of the grantee after the life of the grantor and his wife; and is the. same in substance, as if he had covenanted to stand seised, in the first place to the use of himself and his wife, during their lives, and the life of the survivor, with remainder in fee to the son; and is no more in fact than the usual and common conveyance of a present interest, to . ommence in posession *in futuro,*expectants upon a freehold in being, and is not opposed to any rule of law respecting real estates. But notwithstanding these arguments, let us suppose, as will be contended for on tl>e other side, that this is a void deed, because it attempts to pass a freehold *in futuro.*The consequence will he, that by the same ride their deed is void also, for the estate thereby granted to the daughter, is, from and after the decease, of the grantor ; and if both deeds are void, then the lessor of the. Plaintiff is entitled to recover as being heir at law to the grantor.

. *Taylor, e contra*

Mr. *Baker*has begun with two di- . visions and hath cited cases for the support of each' — I will examine his authorities in the first place, and see how far they really go towards the support of his position. He says this proviso is a new invented clause, repugnant to the premises of the deed, and that by law new invented and repugnant clauses qre void ; and lie cites *Co. Litt.*282, *b.*A man granted a rent, with a new invented clause of distress, m* .* that the grantee should hold the distress against gages and pledges, and yet says Bie book, by the whole court, he,shall gage deliverance. This case proves nothing as to the point it was intended for. A man by his agreement cannot alter the rules of law — the rule of law is, that a distress shall be replevia-ble; here they agreed that it should not be repleviable, and. the question simply was, whether the agreement of the parties should prevail; and because *dispositio legis fortior est quam hominis,*the court held this new invented agreement void : otherwise says the book, by this new invention all replevies shall be taken away. What is proved by this authority is, that an agreement, condition, proviso, or new invented clause (no matter what it be *304called) of the parties, repugnant to a known rule of law, shall be void. But I apprehend, although it maybe a new invention, if it be not repugnant to any rule of law, it will not be void merely because it is a new invented clause. He next cited *Co Lilt. 377, b.*That also is a case of a new invention, planned, as the book says, by an irishman, and the invention is condemned; because by law a tenant in tail has a power as incident to bis estate, to suffer a recovery, and make a warranty capable of barring it | and the invention was in direct opposition to these powers annexed by law to an estate tail and the persou of its owner; and since either the law must have been altered, or this invention declared void, the Judges were determined by the same i.tasons they were governed by in the former case — but if it had not aimed at the abolition of a rule of law, there would have been no just reason for setting aside the agreement of the parties. These cases, arid many others like them that may be found in the books, go upon the principle of a repugnance to some established rule of law. The next set of cases he cites, go upon the principle of repugnance in the latter parts of a deed to those in the former parts ; and it must be admitted, that in some cases such a repugnance will make void tiie latter clause, but in what cases is best explained by the authority cited on the other side, and which is next in order to be commented on. 2 *Re.*23, admits an *habendum*may be void for repugnance ; and says, where the estate in the premises, and that in fhe *habendum,*both pass by the delivery of the deed, there if the estate in the habendum, be less than the estate in the premises, the *habendum*is repugnant and void : or where the estate in the premises, requires a ceremony to its perfection, and that in theAa-*beiutum*none — there tiie estate in the *habendum*takes effect b) the delivery of the deed only, and is not void for repugnancy. The provisional clause in this deed is not an *habendum,*and the bare saying this, is sufficient to shew the inapplicability of the case cited to that now under consideration. But say it is an *habendum,*it gives no less an estate than that contained in the premises — > they are both estates in fee. The only difference is, that the one is to commence *in*futuro. the other presently ; the proviso and the preceding parts of the deed aré both parts of the same deed, and.both to be taken into con *305sideration, in order to ascertain the true meaning of the parties. The former is not to cause a rejection of the latter part for repugnancy, unless they be totally irre-concileable in meaning with each other. What that meaning was iu the present case, is evident. — it was to create a fee and freehold in the grantee, to commence *in fxituro,*upon the death of (he grantor and his wife. This being once established, the only question remaining is, whether this intent be compatible with *the rules*of law. In other words, whether a freehold can be created to commence *in futuro*; and that it cannot, no one will deny. As to the other authorities cited, they all proceed upon tiie same principle with these already adverted to, except in one instance, where the *habendum*was deemed void, because it attempted to create a freehold to commence, *in*futuro. The next attempt is to support this deed as a covenant to stand seised. If it he a conveyance under the statute of uses, such a proviso is not repugnant, hut must be taken as a part of the deed, and must have a proper agency in forming a construction Upon the deed. *Co. Litt,'337.*1 *Rep.*173. 9 *Rep.*104. All these authorities prove that a proviso contained in a deed under the statute of uses, is good ; and if the proviso in the deed of *John Sasser,*the elder, be not, void, then *John*Sasser, the younger, had no estate, in possession, nor had he any remainder, there being no preceding particular estate to support it.; or if he had any other estate, it could be no other than a freehold estate to commence *in futuro,*and that is void. 5 *Rep.*94. it cannot be maintained that this proviso is a nullify; for wherever a proviso contained iu a deed, is of such a nature that a Court of Equity would enforce it, it, is good. In the case before us, had *John Sasser,*the younger, attempted to turn the, old man out of possession, the Court of.Equity would have prevented him from doing so iniquitous a thing. They would have compelled nhn to abide by the terms upon which he liad accepted the deed. Again, it is a rule,'that every deed take.fi effect from the time of its delivery, or not at. all. It cannot for some time after delivery be dormant, and afterwards upon the arrival of a particular period, reviverr-in the present case the. parties have attempted to make the deed remain inert and neat] during tin; life of the grantor and his wife. The pro* iso is, that the deed shall not have the effect until, *&c.*yet *306by the rule of law it must have effect from the time of its delivery, or not at all. If it had effect in the present case from the time of delivery, the estate of John, the younger, whatever it was, passed to him from that time $ and that must necessarily have been an estate of freehold to commence *in futuro :*or if the deed had no effect at that time, the estate did not then pass ; and as the deed can never hereafter have any effect, no estate at all passed from the grantor — and so either way the estate intended, that is to say, an estate of freehold *in futuro,*is void. But to view this case in its proper light, the proviso in this deed is a condition. The word proviso is peculiarly appropriated by law, to create a condition. *Lztt.*sec. 328. 329. 2 *Rep. 70 b, et seq. Dyer*311. *Cro. Car.*128. And as it is a condition to take place prior to the estate intended to be conveyed to the grantee, it is a condition precedent, tantamount to the. same thing as if ¡he party had granted the estate in fee, upon condition that it should not take effect until after the death of the grantor and bis wife. And with respect to conditions, the la,w is, that if the condition be subsequent, to defeat an estate already created, and repugnant to law, it is void, and the estate shall be absolute. But if it be a condition precedent, to be performed before the estate can vest, and be repugnant to law, it can never be performed ; and for want of a performance, the estate by the very terms of its creations can never arise — Such condition cannot be dispensed With as a nullity — it is a part of (he contract, a *sine qua*non, and its illegality wili have the effect of preventing *he estate from arising. *Shep. Touch. Pre.*129 *Co Lift.*206, *Cro. Elia.*864. 2 *Bl. Com.*156. í *L. Ray.*662. If this be a condition precedent, it is also a condition repugnant to law, as the scope and view of it is to make a freehold estate pass immediately, and commence in possession *in futuro,*and must therefore have the effect of defeating the estate of the grantee forever. The deed in question, is not a feoffment, conveying a present estate with a repugnant proviso or *habendum ;*for it is expressly found he died seised, which proves the immediate freehold was not conveyed, nor delivered over to the grantee, without which, or the circumstance of livery of seisin, as it is called, there can be no feoffment.

His not giving up (he possession to the grantee when the (b ed was executed, together with the proviso, is a full proof that it never was intended to operate as a feoff-*307mcnt. It cannot be made to operate as such without open violence to the intent of the parties. It is a conveyance under the statute of uses — in which case the'proviso is good so far, as that it must be considered in forming a construction upon the deed; and in that view it will appear to be a condition, to have effect prior to the commencement of the estate of *John Sasser,*the younger.— He had not therefore a present estate, hut an estate to commence *in futuro*— and the condition upon which it depended being repugnant to law, as it attempts to make an estate of freehold to commence *in*futuro, arid being therefore legally unperformable, the estate dependant upon it, namely the estate in *John Sasser,*the younger, can never arise nor take effect. The consequence of this is, that *John,*the elder, notwithstanding this deed, had the estate in fee in him as before the execution of it, ,and a right to make a conveyance to his daughter of that estate ; which he has done as stated in the special verdict, by the one or the other of the deeds there mentioned.— The former deed they say is defective — it is not necessary for us to enquire, whether it be so or not — the other deed to her is clear of that and of all other objections— and will pass the estate to the daughter though the other deed he defective.

*Gen. Davie*— The words of the proviso are, “Provided that this deed shall not take effect during the lives of the grantor and his wife, but the premises shall remain to the use of the grantor- for his life, and then to his wife for her life.” This deed is either a deed of feoffment at the common law, or it is a covenant to stand seised ; and. if it be a feoffment, the proviso is void. First, it may he a feoffment at the common law — the words here used are well adapted to that instrument. There is no proof, it is true, of any livery of seisin, but immediately after this transaction the grantee, or the feoffee, as I would call him, was in possession, and continued in possession to the day,of his death *;*which is tantamount to a proof of livery and seisin-r-and beside, our act of 1715 dispenses with livery and seisin in case of deeds of feoffment, provided the deeds be registered in due time — and considering it in that light, the proviso is clearly void, because repugnant to the preceding part of-the deed, which conveys a'fee unresti-ictively. It is argued by *Mr.*Taylor, that the provisional clause in this deed, is a condition pre*308cedent and against law — it is ¡vat a condition but, a limitation. *Co. Litt.*201. A condition is a quality annexed to an estate, whereby it may either be defeated or enlarged, or created upon an uncertain event, no part of which definition agrees with the provisional clause in this deed. It is not to defeat, enlarge or create the estate upon an uncertain event which may or mav not happen — the estate in all events is to remain a fee, nor is if upon any event to be defeated ; neither is the life estate in the grantor and his wife, to be defeated upon any event whatsoever. Nothing is liere left to chance or future occurrences, every thing is unalterably fixed — then if this be a common law conveyance, the proviso is a limitation repugnant to the estate granted in the former part of the deed. *Shep. Touch.*129. *Mr. Taylor*seems to suppose that the word proviso, *ex vi termini,*makes a condition, that is not so — it may be a limitation, covenant, corn!¡ti-fian, reservation, &c. *Co. Litt.*203, *a*and *b,*204. 2 *Re.*72. A proviso to restrain the generality of the former clauses, is not a condition — whether it be a condition or Hot, depends upon the true construction of the deed, and the consequences that would result were it held to be a condition — if these were such as would defeat the true meaning of the contract, or not promote the ends it had in view, it shall be construed to be something else, rather than a condition — as a covenant, limitation, or the like, that will effectuate these purposes. As to its repugnan-cy — if it be a proviso repugnant to law, it is void, *Fearns*178, 179 *et seq.*Or if it be contrariant in itself; or allowing it to be a condition, it is void and against law if it attempts to defeat only part of the estate to which it is annexed. 1 *Re.*85 6, 86 *b.*For if a condition at the common law could make an estate cease as to one, and revive as to another, for a particular time, the breaches of such conditions, which in their nature, are secret and not notorious acts, might privately transfer the freehold from him who had taken it by a notorious act as livery of seisin, or the like, to some other person *;*and again, by a like secret breach, from him to another — so that he who wished to bring a *praecipe,*would never know against whom to institute his suit, nor the lord whom to call upon for his services. If it could be made to cease for a time, and revive again afterwards, then if might be made to cease during the minority of heirs, and by this means *309fjlf, wardship be lost to the lord. Such secret modes of estates, from one to another, are against the w hole policy and fundamental principles of the common law, which ordained all transfers of real estates to be by open and notorious ceremony. Furthermore, if ¡i be a proviso or condition calculated to deprive the holder of the estate of the exercise of some power which the law annexes as art incident or quality ro the estate from motives of policy, as a proviso or condition not to bar an estate tail, it is void. *8hep. Touch.*130, 131,132. *Litt. sec.*723, and the comment upon *Litt. sec.*360, 361, 362. An *habendum*is a material part of the deed, as if performs the office of describing the estate, or quantity of interest the grantee is to have, and where it is repugnant to the premises, it is void. — much more shall a proviso coming both after the premises and the *habendum,*be void, when repugnant to both : and that it is void in such case, is abundantly proven by *Cro. Jac.*282. *Cro. Eli».*255. 1 *lie.*47. *5 Re.*12. 9 *Re. Sunday’s*case. 1 *Re.*86. But grant that the proviso in the present case is not void — still if it can be so construed, as legally to carry into effect the intent of the parties, without violating any rule of law, it must be so construed — and here, the manifest meaning ofthe parties may be effectuated consistently with the rules of law, by construing this deed to be a covenant to stand seised. 2 *Bac. Jib.*498. 3 *Dyer*272. *Cro. Car.*366. 1 *B. Jib.*410. 5 Bac. *M.*362. 7 *Re.*13 *b.*1 *Bac. Jib.*176. *5 Bac. Jib.*351. *Cow.*600. *Hob.*287. A covenant to stand seised of an estate to commence infuturo, is good ; for so much of the ancient use that was in the covenantor, and whi< h is not conveyed out of him, remains still in him — and in the present case, if the'proviso had not been inserted, but the deed bad conveyed to the grantee an estate after the lives of the grantor and his wife, there Would have remained in them a life estate sufficient to support the future interest of the grantee — and surely if the law would have implied this without the help of the proviso, a proviso express to the same purpose, will not prevent the deed from receiving the same construction, *utile per inutile ñon vitiatur*— expressum *non f adit taciturn cessare.*As to the piare.occupied by this proviso, being the latter part of the deed, that is totally immaterial— no matter where it is placed, the construction must be made upon all that appears on the face of the deed — and *310the law in making the proper construction, will assign to each member of the deed, the .station and precedence it ought to possess, though it may have been misplaced by the inattention or unskilfulness of the drawer . The true meaning of the instrument is,to be collected from tire whole contents, without regard to the order in which the several clauses are actually placed. According to this arrangement, the true meaning of this deed will he, to stand seised, fir st to tire use of the grantor for life, and the life of his wife, and afterwards to the use of the gr an-tee its fee. Every part of this meaning is clearly expressed in some one or other of the parts of this deed, and when you refer them to the several periods wlem they are to take effect, they necessarily assume this order.'— There can no reason be given, v\ hy tire deed should not be so construed, and if it be so construed, every objection to its validity and legality immediately vanishes — so that whether it be a feoffment at the common law, or whether it be taken as a conveyance to uses, in either case the Plaintiff is entitled to recover.

Judge Stone — I am satisfied judgment ought to be, given for the Plaintiff — -this is a covenant to stand seised.

Jttdge Haywood — 1 am also satisfied in my own mind, that judgment ought to he given for, the Plaintiff; but É have, reasons for declining to give my opinion judicially, unless it shall become absolutely necessary. I was formerly applied to, while at the bar, for my opinion on this very deed; and after consideration gave the same I now entertain : — Let it lie over till next term, Judge Macay will then be here : — if he should be of the same opinion with the Judges now present, judgment will of course be entered for the Plaintiff.

Note. — The reasons of the Judges now present, were not founded upon the arguments about repugnancy — no part of a deed is repugnant but that which cannot consist with the other parts, unless we speak of a repugnancy to rules of law. It is by no means inconsistent with an estate in fee in remainder, that another should first have an estate for life — neither is it necessary to inquire, whether the deed in question, was intended to operate as a deed at common law, or under the statute of uses: for whether intended as the one or the other, if it could not operate effectually in the way intended, it will operate, in some other way in which it may be effectual. There can be no doubt of this rule. A deed intended to operate as a feoffment, may be construed a covenant to stand seised. 1 *Atk.*8. *H. B. R.*614. There cannot be the least doubt, but that a covenant Ü5 stand seised to the use of another, after one’s own life, isgood to pass the estate intended; for the law raises in the grantor art estate fur life vn the mean time.*311sufficient ta support the future estate. *Co. Litt.*22, *b.*This' ha» been already decided in a vast number of instances. There is no point better established by authorities. 1 *Mo.*175, 178, 98, 159, 121. 2 *Mo.*207. 3 *Mo.*237. 2 *Ves.*255. 4 Mo. 149. 2 L. Ray. 855. 1 L. Ray. 34. There can be no doubt in the present case as to what was the meaning of the parties, and the only question is, whether it is possible to put such a construction upon the deed, *(Vide*1 *Nels. Ab.*487, 488, *s.*16, 17, 18, 19, 20, 22. 3 *Nels.*96, s. 18. *Fearne on Cont. Rem.*30. 33,) as to make that inlent consistent with the rules of law: and if the law will imply an estate for life in the grantor, where nothing is said about it, in order to support the estate in remainder, surely it will not reject such estate when raised by the express words of the parties. Here that is done, and besides, the very case now before the court was decided not long since, and is reported in 4 *Term*181. There, there was a conveyance exactly like the present, and a proviso of exactly the same import, placed in the same part of the deed ; and the court decided it was not a repugnant proviso, but consistent with the estate granted in the deed, and that the estates mentioned in the deed were well raised. *Vide*1 *Nels.*408, *a.*22. 1 *Rep.*101, 154, *b.*

Septembeprterm, 1796. This special verdict was again argued before Judges Macay and Stone, and they gave judgment for the Plaintiff.

Note — jlf will not be improper here to observe, that this opinion of three of the present Judges — founded upon consideration, after argument by counsel, upon a case made by a special verdict, is directly against that of *Ward*and *Ward,*decided as to this point at Halifax, April term, 1793. That was an Ejectment cause, upon the trial of which, a question arose upon adeed of bargain & sale, made tothe lessor of Uv-. P'aintiff by his father in the year 1771, of the premises in question, which conveyed the whole estate absolutely to the bargainee ; but in tha premises of the deed, there is an exception of the grantor’s lifetime, in any part or parcel of the land — whether the lessor of the Plaintiff toot a fee by this conveyance, as a life estate was reserved to the grantor, was the question.

*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 *arisein futuro¡*and here, he said the grantee was not to take till after the grantor’s death. The Attorney-General, *Haywood,*entered into a discussion of the doctrine of use.-.,' to shew that the use might be limited to take effect in this manner by the statute of uses, although it would not have been good at the common law.

. *Per Curiam.-~-A.snn*and Williams, to the Attorney-General, we differ with you' in opinion in respect to the operation of the statute of uses, but we are clearly of opinion, that here the fee immediately passed to the grantee, and that the reservation is void.