#### Levi Parker *versus*William Nichols.

The owner of land makes a deed thereof, not fraudulent, to his grandson, in eon* sideration that the grandson shall live with and work for him during the grantor’s life, notwithstanding that the grandson is to come into possession when he arrives at the age of twenty-one, upon condition that he bring in to the grantor a certain proportion of the yearly produce, &c. and within one year after he becomes of age he is to pay the grantor or his order a certain sum of money ; provided nevertheless, that if *lie*should not live to take the premises into his possession, &c. the deed should be void. Held, that this was a covenant to stand seised to the use of the grandson, and that he having performed the conditions until lie became of age, the possession was transferred to the use without an actual entry, and a seisin thereby vested in him, subject however to be defeated by the grantor or his heirs upon the non-fulfilment of the conditions which were to be performed after the grantee became of age.

The oath required of an executor &c. licensed to sell real estate, must be taken before he fixes on the time and place of sale, and not merely before he gives a deed to the purchaser.

Writ of entry for the recovery of twenty acres of land in Westford, into which, it was alleged, the tenant had no entry but *after*a disseisin which Elizabeth Fletcher did to the demandant within thirty years. The writ is dated May 26, 1827.

The tenant pleaded that Elizabeth F. did not disseise the demandant; upon which issue was joined.

At the trial, before *Wilde*J., the demandant read the deed of Benjamin Fletcher to Thomas Symmes, dated December 6, 1788, of an undivided moiety of certain land (including the demanded premises), and a deed of the same date, of the other moiety, from the same grantor to the demandant. In this *117iast deed the grantor says, “ for and in consideration that my grandson Levi Parker junior &c. (the demandant) shall live with and faithfully work for me and Elizabeth my wife during our natural lives, notwithstanding the said Levi is to come into possession of half of the lands and buildings hereafter described when he arrives at tire age of twenty-one years, upon condition that he bring in to the said Benjamin and Elizabeth two thirds of the produce &c. raised on said lands yearly and every year during the natural life of the said Benjamin and Elizabeth, and the said Benjamin is to pay two thirds of the taxes, &c. and the said Levi is to pay the other third during the natural lives, and after the decease of either the said Benjamin or Elizabeth the said Levi is to bring in one third of all the produce to him or her the survivor &c. during the natural life, and the survivor is to pay one third part of the taxes and the said Levi the other two thirds &c. ; also to provide his equal proportion of firewood the whole term of life of the survivor ; also to bear his equal share of cost in keeping all of said buildings in decent repair. Also the said Levi shall within one year after he arrives to the age of twenty-one years pay to me or my order forty pounds lawful money. These things done according to the true intent and meaning are to be in full consideration, and the receipt thereof to be acknowledged. And I do hereby give, grant, bargain, sell and convey to the said Levi Parker, and his heirs and assigns forever, the one half of all the lands &c. to be equal in quantity and quality, &c. the other half of said lands &c. being this day deeded to Thomas Symmes.” After an *habendum*in fee simple and covenants of seisin, right to sell and convey, and general warranty, the deed proceeds:—lc Provided nevertheless, that if the above-named Levi Parker junior should not live to perform and take the above-said premises into his possession and perform as above mentioned, then the above-said conveyance is to be considered as void and of none effect; otherwise to remain in full force and virtue.”

The demandant also read a deed of Elizabeth Fletcher, the widow and executrix of Benjamin, to James Prescott, dated October 13, 1795, by which, for the consideration of 100L she assigns to Prescott her interest in the land conveyed, as *118above mentioned, to Parker (except what had been legally s°ld at vendue), and she agrees that Parker shall keep and perform to Prescott the conditions in the deed first mentioned, in the same manner as he was obliged to do to her. On tin's deed was a certificate of Prescott, dated September 3, 1801, acknowledging that Parker had performed the conditions to Prescott’s satisfaction.

The demandant also proved that he was born January 9, 1778 ; and he there proposed to rest his case.

The tenant then objected, that the deed of Benjamin Fletcher to the demandant could not operate as a bargain and sale, and must be construed to be a covenant to stand seised to the use of the demandant at a future time upon the performance of a condition precedent by the demandant, and therefore was not sufficient evidence of his seisin as alleged in his writ.

The demandant thereupon called a witness, who testified that he had known the demandant from his childhood ; that the demandant lived with Benjamin Fletcher several years before Benjamin’s death and continued to live at the same place with Elizabeth Fletcher, Benjamin’s widow, a considerable part of the time until he was twenty-two or twenty-three years of age ; but the witness had never seen him on the land now demanded, which is a separate tract lying at the distance of half a mile from the nearest part of the homestead of Benjamin F. where the demandant lived with Benjamin and his widow.

The judge being of opinion that the evidence was sufficient to put the tenant upon his defence, the tenant produced the last will of Benjamin Fletcher, dated June 16, 1786, and proved by Elizabeth F., the executrix, April 21, 1789, in which he bequeaths to Elizabeth the use and improvement of all his estate, real and personal, during her life.

The tenant also produced evidence of proceedings in the Probate Court, from which it appeared that the personal estate of the testator was not sufficient to pay his debts ; a license from the Court of Common Pleas in November, 1793, to sell so much of the real estate as should be necessary to satisfy the balance, with the charges necessarily arising in the sale and future administration ; an affidavit of T. Symmes, that as agent of the executrix he gave notice of the time *See.*of the intended *119sale, and that at the time appointed, *viz.*February 3. 1794, the land now demanded was bid off by the tenant; and a need of the land from the executrix to the tenant, dated April 19, 1794.

*Oct. 17th.*

Also a deed from the demandant to the tenant, dated January 11, 1799, conveying other land, and referring to the demanded premises as the land of the tenant.

The bond given by the executrix respecting the sale of the real estate under the license, was dated April 8, 1794, and the oath required in such cases was administered on the same day.

A default was ordered by consent of the parties, subject, &c.

Dana, for the demandant,

admitted that the deed from Benjamin Fletcher was a covenant to stand seised to uses, and he contended that the demandant became seised upon his arriving at the age of twenty-one years, he having up to that time performed the conditions of the deed.

*Stearns*and *Abbot, contra.*

The deed is a covenant to stand seised to the use of the grantor and his wife during their lives, and afterwards to the use of the demandant, but upon a condition precedent to be performed by him. That part of the condition which respects the payment of the 40L has not been performed, and so he was never seised. As to the difference between a bargain and sale, and a covenant to stand seised to uses, they cited *Welsh*v. Foster, 12 Mass. R. 96 ; *Roe*v. Tranmer, 2 Wills. 75 ; *Doe*v. *Simpson,*ibid. 22 ; *Wallis*v. *Wallis, 4*Mass. R. 136 ; *Pray*v. *Peirce,*7 Mass. R. 384 , Roberts on Fr. 119.

A voluntary provision-for the benefit of his own family by a man in debt, is void as against even subsequent creditors. *Walker*v. *Burrows,*1 Atk. 94 ; *Russell*v. *Hammond,*ibid. 13 ; *Taylor*v. *Jones,*2 Atk. 600. Here it appears that the grantor was in debt at the time of his decease, and if he was not so a short time before, it is incumbent on the demandant to show it. The tenant was not obliged to inquire before he purchased, whether the personal assets were sufficient to pay the debts. *Leverett*v. *Harris,*7. Mass. R. 292.

There is no evidence that the demandant ever entered on this parcel of the land embraced by the deed of Benjamin *120Fletcher. He ought to have made an entry within twenty years after the disseisin. *Brown*v. *Porter,*10 Mass- R. 100 ; *Wells*v. *Prince,*4 Mass. R. 67.

*Anil term*1829, *at Concord.*

Talcing the oath required by *St.*1783, c. 36, § 17, to be administered to an executor licensed to sell real estate, is not a condition precedent to the sale. *Perkins*v. Fairfield, 11 Mass. R. 227.

The demandant is estopped to claim the land, for by his deed of January 11, 1799, he has recognised the tenant’s title.

*Hoar*replied.

The opinion of the Court was read as drawn up by

Putnam J.

The principal question in this case is, whether the evidence produced is sufficient to prove the seisin of the demandant; for unless it be so, the tenant of the freehold is not to be disturbed.

There is no proof of any actual entry. And the deed offered by the demandant cannot operate as a bargain and sale, because it purports to convey a freehold *in futuro.*But we think it may be construed as a covenant of the grantor to stand seised to the use of the demandant. A valuable consideration is expressed, and a good consideration may be presumed from the fact, that it appears in the deed, that the grantee was the grandson of the grantor : so that if it were necessary in this State as it seems to he in England, to prove a consideration of blood or marriage to support a covenant to stand seised to uses, it might be presumed in the case at bar, as it was in *Wallis*v. *Wallis,*4 Mass. R. 135.1

It is objected, however, that the conveyance was upon conditions precedent, which have not been performed by the demandant, *viz.*that he was to perform certain services until he became of age, and afterward, and within a year, he should pay a sum of money ; and that there is no evidence that he paid the money. There is evidence in the case, that he performed the services up to the time when he became of full age, and the *121grantor then intended that the possession should be taken. He expressly declares in his deed, that the demandant is to come into possession when he arrives at twenty-one years, upon condition of performing the services mentioned up to that time.

The intention of the parties seems to be clearly ascertained, that the grantor was to stand seised until the grantee became of age, and if he should then have performed the services required in the deed, that the estate should then actually vest in possession ; but that it should be liable to be defeated by the covenantor or his heirs if the covenantee should fail to pay the 40Z. within a year afterwards. There is no evidence in the case, of any entry for condition broken.

Now we think there is no difficulty in executing this intent, m virtue of the statute of uses, 27 *Hen.*8, c. 10. The conditions having been performed until the grantee became of age, the possession was, without actual entry, transferred to the use, or as it is expressed in Wood’s Institute, the statute then “joined the use and the possession of the land together, so that what estate a man hath in the use, the same he hath in possession.” By these means the demandant became seised when he became of age, *viz.*January 9, 1799, and he is enti tied to call upon the tenant to disprove the title, if in his power to do so.

The tenant relies upon a deed by the executrix of the grant- or for the payment of his debts. And it is suggested that the conveyance of the grantor was void as against creditors.

If the question of fraud had been intended to be raised, it should have been submitted to a jury. But we do not perceive any evidence in the case to prove it. If this had been a mere voluntary settlement made in good faith when the covenantor was not indebted, it could not have been avoided by a subsequent creditor. *Russell*v. Hammond, 1 Atk. 15.1 But it appears to be an honest family settlement upon valuable, as well as upon good consideration, and *bona fide.*

But if this estate were liable to be sold for the payment of the debts of the grantor, the executrix has not performed the *122requisitions of the law to make a valid conveyance of it. Stie dk-l not take the oath required to be taken before fixing on the time and place of the sale. The Si. 1817, c. 190, § 11, [St. 1783, c. 36, § 17,— Revised Stat. c. 71, § 14,] is peremptory as to that requisition.

The defence therefore wholly fails. But the demandant is to recover only one half of the premises demanded, according to his right under his deed; and judgment is to be rendered accordingly.

1

 If the consideration of blood appear on the face of the deed, it is sufficient to raise a use, although blood be not particularly expressed as the consideration. *French*v. *French,*3 N. Hampsh. R. 234. See *Shed*v. *Shed, 3*N. Hampsh. R. 432; *Wood*v. *Stewart,*20 Johns. R. 85; *Hauseman*v *Sebring,*36 Johns. R. 515; *Hunt*v. *Hunt,*14 Pick. 381.

1

 See Howe v. *Ward,*4 Greenl. 197, *Damon*v. *Bryant,*2 Pick. (2nd ed.) 414, note 2, and cases there collected; *Smitli*v. *Lowell,*6 N. Hampsh. R. 67; *Jackson*v. *Seward,*5 Cowen, 67.