Supreme Court of Rhode Island, 1866

Wardwell v. Bassett and Wife

Supreme Court of Rhode Island · Decided March 6, 1866 · Bradley

8 R.I. 302

Counsel

B.N. and S.S. Lapham, for the plaintiff: — I. The deed from Chloe H. Bassett to Amey Ann Bassett was a void instrument, because it attempts to create an estate in futuro. 2 Bl. Com. 165, 315; 2 Washburn on R.P. 219, 220, 229-31; 4 Kent, 235 (note); Taylor's Landl. and Ten. § 73. II. The covenants of warranty in the deed do not work an estoppel. 2 Wn. on R. Prop. 472, 476. III. The plaintiff's title, by conveyance from the devisee of Chloe H. (who continued to be the owner notwithstanding her conveyance to her daughter-in-law), is to be sustained. Potter, for the defendants: — I. The deed from Chloe H. Bassett to Amey Ann Bassett conveyed all her interest, and therefore no title to the lot in question could pass under her will. That deed is not void at common law. The estate is granted in the premises and granting part of the deed, and the habendum cannot change or lessen it. 2 Bl. (Wendell's ed. of 1847), 298, and notes. Indeed, an habendum is unnecessary. 5 Barn. and Cres. 716; 5 Barn. and Ald. 783. It is a general rule that no one can claim under an habendum unless he is named in the premises. 2 Hilliard's Abr. § 148, p. 355. A reservation or a use may be limited, in the habendum, to one not named in the premises. Ib. § 150. If the habendum is repugnant to the premises, it is void. If the grant is made to A and his heirs, habendum to B for life, A takes a fee. And where the habendum of a bargain and sale is to the grantor, it shall be rejected, and the use enure to the grantee. So, where the premises give an immediate, and the habendum a future estate, the latter shall not defeat the grant, as being in futuro. Ib. § 155; Moss v. Sheldon, 3 Watts Serg. 160. By the deed in question, the fee passes at once by delivery of the deed, subject to a life estate of the grantor. 2 Bl. Com. (ed. as above) 164-7. There is an estate of freehold in possession to support the estate granted by the deed. 4 Bl. Com. 143-4 (notes). The deed is, in effect, a grant of a remainder, subject to a life estate of the grantor. The reason why, at common law, an estate of freehold, to commence in futuro, was void, was, because such an estate cannot be created without livery of seizin, or corporal possession of the land, "by a freeman — one who could go where he pleased." 2 Bl. Com. 143, 144; Hilliard's Abr. 77, § 6. The feudal system, as a law of tenure, is abolished in the United States. Ib. ch. 2, §§ 13, 14, 18, and cases cited; ch. 81, p. 293-5; ch. 2, § 69; Green v. Thomas, 2 Fairfield, 318. Livery of seizin is expressly abolished in Rhode Island. Rev. Stats. p. 335. II. A conveyance to take effect in futuro is valid. Jackson v. McKenney, 3 Wend. 235, and citations; Same v. Dunleigh, 1 Johns. Cas. 94; Same v. Swart, 20 John. R. 87; Same v. Swarts, 11 John. 351; 4 Cruise's Dig. 185, 193; Green v. Thomas, 2 Fairfield, 318; Rogers v. Eagle, 9 Wend. 611. III. The covenant in the deed to the defendant, Amey Ann, is good, as a covenant to stand seized. Jackson v. McKenney, 3 Wend. 235; Same v. Swart, 20 John. 87; 2 Strange, 934; 2 Hilliard's Abr. 312; §§ 20-57. IV. That deed is also good by way of reservation. Jackson v. McKenney, 3 Wend. 235.

Opinion of the Court

Bradley, C. J.

The question in this case arises upon the construction of a quitclaim deed made in the common form under our practice, with the habendum providing that it shall not take effect until after the decease of the grantor. This is not an unusual mode of conveyance in this and other New England States, and is, upon the face of it, open to the objection of attempting to create an estate in fee in futuro. It is the duty of the Court, of course, to sustain the intention of the parties if upon any legal grounds it can be sustained.

*305 The language of tbis instrument may be construed as a covenant to stand seized, as the intention is clear, and as, upon inquiry, we find tbat tbe relations of tbe parties to tbis deed are such as to furnish a sufficient consideration ; for it is admitted in the case, though not upon tbe face of tbe deed, tbat tbe grantor was tbe mother of tbe husband of tbe grantee, by whom be bad children.

The cases of Wallis v. Wallis, 4 Mass. 135, Gale v. Coburn, 18 Pick. 397, and Bell v. Scammon, 15 N. H. 381, are strictly analogous to tbis case, upon tbe point here decided. See, also, Byron v. Bradley, 16 Conn. 473. It is unnecessary to consider whether tbe deed could be sustained upon other grounds.

Judgment for the defendant.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.