Griffith's Lessee v. Ridgely

The Court, on the second prayer, were of opinion, and so directed the Jury, that the warranty contained in the said deed bearing date the 2d of May, 1752, is a lineal warranty, and does not rebut and bar the claim of the lessor of the plaintiff unless it be proved that he received assets by descent from Orlando Griffith. To this opinion the defendant excepted. (Johnson, Ch. J. and Goldsbokougu, J.,) On the third prayer the Court were of opinion that the deeds of lease and release were sufficient in law to pass the estate of the said Catharine Griffith to the said Charles JRidgely, and directed the Jury accordingly.

The Court also were of opinion, (a) that the words of re ⁴³⁴ ference “first herein mentioned’’ in the act of assembly of 17G6, c. 14. s. 3. relates to the Provincial, Court and it is within the equity of the act, that the deed should be recorded in the General as well as the County Court, and no reason can assigned why it should not. There is a reason why the certificate should go from one county to the other, because the Justices of one county had no cognisance of the powers of the other. But the General Court Judges pervaded the whole, and the commissions of the Justices of the P eace are all recorded in the office of the General Court. If it had not been for the last clause, the clerk of the county would have had no authority to record the deed at all, but only the clerk of the General Court.

The plaintiff excepted to this opinion. By the 4th exception it appears: The plaintiff offered evidence that on the day before the execution and acknowledgment of the deeds of lease and release from Catharine Griffith to Charles Ridgely, the said Ridgely sent to Joshua Griffith, son of the said Catharine, the following letter, viz. “ Sir — Í shall be up at your house on Monday morning to see you and your mother concerning the land I hold called Timber Neck. If there should be any thing doubtful in my title, I hope it will be in our power to settle amicably with your assistance. If your mother should not be at your house, I should take it a favour if you should get her there on Monday morning if agreeable.

If it is not in your power to do it, I beg you will let me know where I may meet with you and her on Monday morning. Charles Ridgely, son of Jno.” That the said Joshua Griffith sent for and procured the attendance of the Justices who took the acknowledgment of the. said deed, and held and guided the hand of the said Catharine while she signed the said deed; also that the said J ustices, at the time of the execution and acknowledgment of the said deed, trusted to the information of the said Joshua Griffith as to the said Catharine’s having any ⁴³⁵ knowledge of the contents of the said deeds, without inquiring of the said Catharine whether she knew the contents thereof, or reading the said deeds to her, or informing her of the contents thereof. And further gave in evidence the depositions of the two justices before whom the said deeds were acknowledged, stating that the deeds were not read to the said Catharine by them, and that she was very deaf, and that the said Joshua Griffith received from the said Charles the consideration for which the said deed was executed. The plaintiff further offered in evidence that the said Catharine Griffith, at the time of the execution and acknowledgments of the said deeds had not sufficient reason and understanding to make a deed to convey land or dispose of property; and offered further to prove this fact by hearsay; and that the said Joshua Griffith, some little time after the execution and acknowledgments, did declare, that he was present at the execution of the said deeds and acknowledgments thereof; that his mother, the said Catharine, knew nothing- of it; that he g-uided her hand and transacted the whole business, and that she had not at that time sufficient reason and understanding to convey her hand or to make a deed.

To this evidence, so offered to be given, the defendant objected, and the Court (Johnson, Ch. J. and Goldsbokougii, J.) were of opinion, that the evidence so offered to be given was improper and inadmissible. The plaintiff excepted to this opinion. Judgment for the defendant.

The plaintiff appealed to the Court of Appeals. In the Court oj Appeals, June term, 1792. Cooke, for the appellee. The husband being seised of an estate of inheritance, the deed of the 14th of September, 172.Ó, passed such interest us he might legally pass, though. ⁴³⁶ it could not operate to convey the estate of the wife, she , . being no party to it.

It may operate as a feoffment. If as a bargain and sale, it will convey a base fee till entry made by the wife. Cro. Jac. 332. 417.

Law of Eject. 152. If as a feoffment, it would work a discontinuance. Litt. sec. 594. The deed of the 2d May, 1752, though not properly acknowledged, is good as a release or confirmation from Orlando Griffith, whereupon to ground the warranty.

Shep. 181. 327. Co. Lftt. 235. 371. 385. All deeds are to be construed with reference to their subject matter. 1 Durnf. 703. This deed is good as a release without being recorded.

At common law all warranties, lineal or collateral, did. bind without assets the heir they descended on, unless it began by disseisin. Litt. sec. 697. The first law whereby they were restrained was the statute of Gloucester, which barred only a tenant by the curtesy from making a warranty, unless he left assets to descend. Why make this statute if a warranty would not bar without assets ?

But all other cases stood as they did at common law Then came the statute de donis, which creates an estate-tail, and restrains the alienation of it; otherwise estates-tail would have been in the same situation as all other estates at common law. Warranties are not mentioned in the statute de donis,^ but the Judges adopted the rule in the statute of Gloucester, and by an equitable construction of the statute de donis, made it necessary that a linéal warranty to bar an estate-tail, should have assets to descend. Freem. 60. Thus stood the law: Tenant by the curtesy, by the statute of Gloucester, and tenant in tail by the construction of the statute de donis, could not bar their heirs by warranty, unless they left assets ty descent.

But all other persono might„ ⁴³⁷ Orlando Griffith was neither tenant by the curtesy, nor tenant in tail; and therefore he might bar his heir. There is no statute law, no adjudged case to the contrary : if there is, I call on the gentlemen to produce it. But there are many cases to the contrary. Litt. sec. 706, 707. 711, 712. 2 Bl.

Comm. 301, 302. Warranty without assets binds an estate in fee, but not an estate-tail. Jacob Com. Law, 390. 3 Com.

Dig. 432. Third exception. The words of reference in the third section of the act of 1766, c. 14. “ first herein mentioned,” .relates to the first clause, and is within the equity of the act. No purpose can be answered by recording the deed in the County Court that is not effected by the recording it in the General Court.

There is a reason why the certificate should go from one County to another, because the Justices of one County have no cognisance of the power of the Justices of another County; but the power of the judges of the General Court pervades the whole state. If the deed is acknowledged in the County, it may be recorded in the General Court, which shews the last words respecting the certificate were only to enable a record in the County where the land lay, and without it the clerk of the County could not record. But if that clause had been left out it might be recorded in the General Court. First exception.

By the act passed in 1725, the estate-tail of Catharine in a moiety was changed into an estate in fee to the husband and wife» The act declares they shall hold in fee-simple an absolute estate of inheritance, and makes no limitation of the estate in case they die without issue, as the will had done, which gave it to the wife in tail. 2 Bl. Rep. 1211. T'he act is to have a liberal construction, and to be considered as a will. 2 Vez. 354, 355, 356. Fourth exception.

Hearsay not evidence. The witness ⁴³⁸ must speak of facts, and the Court or Jury judge of them, Bull 289, 290. If the first speech is without oath, the second is no better. If living, what he was heard to say is not the best evidence.

Pinkney, for the appellee. First-point, By the act of assembly, Griffith and wife take a fee in the moiety by entireties. 2 Ld. Raym. 1144, 1145, 1146. 1st. It appears from the preamble of the act, that Orlando Griffith was a p rrchaser for a valuable consideration.

It could not therefore be the intention of the act to settle the whole on the wife. 2d. The enacting clause in express words gives them a joint interest in fee, and the subsequent words do not take it away. The subsequent words only prove that the draughtsman of the act did not understand the power of alienation incident to the estate created. But no implication is to be admitted against the positive words. 2 Ld.

Raym. 1152. And it is inconceivable that after the law has positively created a joint estate of inheritance in the husband and wife, such estate is destroyed by the legislature proceeding to give their ideas of the power of alienation consequent upon it. 3d. Words that vrould make others joint-tenants will make husband and w fe each tenants of the entirety. 2 Bl. Rep. 1211.

Co. Litt. 299. b. 2 Vern. 120. 2 Lev. 39. And the words of this act will clearly create a joint-tenancy in a common case. 2 Bl. Com. 180. Second point.

Although the alienation of the husband (where baron and feme are seised of the entirety in fee) is voidable by the entry of the wife after the husband’s death, or by the entry of the heir of the wife surviving, yet it is good until so avoided, as a transfer of the fee. Pigot, 72. shews that his povestas alienadi is as great as that of a tenant in tail. ⁴³⁹ 2 Ld. Raym. 779. 1 Bl. Rep. 252. shew, that in the case ^ x % of tenant in tail, his alienation even by -deed of bargain and sale will pass the fee till the entry of issue.

See also, Cro. Jac. 332. 417. Law of Eject. 102. The distinction between the operation of conveyances to Uses, and common law conveyances, (as feoffment,) which operate upon the possession, seems to be that the first maybe avoided by entry, but are good until so avoided, while the latter work a discontinuance, and by tolling the entry-put the estate to a right.

So that the nature of Orlando Griffith’s estate enabled him, even by a mere conveyance to uses, to pass a base fee in the entirety, defeasible by a subsequent entry of those who had right. Third point. The first deed (in 1726) will make the person entering under it (Charles Ridgely) tenant at will to Orlando Griffith. Co. Litt. 56. b.

Fourth point. The second deed (in 1752) may enure as the release of Orlando Griffith. 2 Bl. Comm. 324, 325. And a release to a tenant at will is good.

Shep. Touchst. 321. The two deeds then, taken together, operate as a transfer of a base fee in the entirety to Charles Ridgely; so that unless Mrs. Griffith, in her life-time, (after her husband’s death,) did actually enter and avoid, Charles Ridgely, or those claiming under him, had at the time of her death abase fee, which could only then be avoided by the entry of her heir. But Fifth point.

The heir could not enter and avoid, because he was rebutted by the warranty contained in the deed of 1752. Warranties are to be favoured. 5 Bac. Air. 453. Co. Litt. 365. b.

This warranty is lineal. Co. Litt. 375. a. 3. 715. “ Wherever the heir could, by any possibility, derive his title by descent to the lands warranted through the warraut ⁴⁴⁰ ing ancestor', the warranty is line a." See also, 2 Bl. Comma 301. In this case there was a plain possibility that the heir might have claimed through Orlando Griffith^ the warranting ancestor, by the w ife’s dying first.

The warranty therefore is lineal. Let us now consider, then, whether as a lineal warranty it will bind under all the circumstances of the case. And here we are to consider how it would stand at common law. And again, if good at common law, whether it is impeached by any existing sta ,ute. 1st.

At common law all warranties by the ancestor bound the heir on whom they descended, except in the single case of a xvarranty commencing by disseisin. 2 Bl. Comm. 301, 302. Litt. sect. 697. Gilb.

Ten. 140, 141. It was totally immaterial whether the warranting ancestor had any right in the premises. His warranty rebutted in all possible instances, that by disseisin excepted. As this is unquestionably the general rule, we must endeavour to discover whether the present case comes within any known exception to it; and 1st.

It was objected in the court below, that this warranty is void, quia it commenced by disseisin» I answer. To constitute a xvarranty by disseisin is impossible where no disseisin exists: for to make such a warranty, it is necessary not only that there should be a disseisin committed, but that it should be committed by the ancestor warranting, or that he should at least be a party to it. And again, tha; the warranty and disseisin should be simitl and semel, or at least that the disseisin should have been with intent to make the warranty, and quasi uno tempore with the warranty. 2 Bl. Comm. 302.

Lift, sect. 698, 699. 702. Co. Lin. 367. a. 369. b. (bottom.) Examples. The son purchases land and lets to the father for years or at will.

The father enfeoffs another with warranty. The feoffment is a disseisin to the son, and the ⁴⁴¹ warranty therefore void. Litt. sect. 698. So if the father be tenant by elegit, or statute, of the son’s land, and make a feoffment with warranty.

Litt. sect. 698. So if the father be tenant for years, with remainder to the son in fee. 2 Bl. Comm. 302. So if the father disseise the son by an entry and ouster, with intent to enfeoff with warranty.

Co. Litt. 367. a. All these warranties are void, because either a previous disseisin is committed by the ancestor, with the express intent of enfeoffing with warranty, which, if after-wards done, the law couples on account of the intent, with the disseisin, or the very deed in which the warranty is con» tained operates in itself as a disseisin. But in our case, Orlando Griffith disseised nobody, either previously to his release, or by it. He could not make a disseisin as to his moiety, because he was seised of the inheritance himself.

To disseise tlv. heir was impracticable at any rate, for living' his ance.-.iors he had nothing in die premises. This could not, therefore, be a zvarranty commencing by Sidy. It was also objected in the Court below, that this wmrainy is inoperative on the heir upon another ground. 1st- That a release is an equitable conveyance, and transfer' »o more than the party had a right to pass; and that of coursi Criando Griffith, by his release to Charles Ridgely, om> transferred an estate for his own life. 2 Burr. 704 — 715. 10 Co. 96, 2d. That a warranty is only commensurate with the estate to which it is annexed, for that it cannot enlarge an estate, and ceases with it.

I answer as to the first position. It might he contended that it is not law to the extent laid down, agreeably to the authorities already cited. I might argue that it is true a release without more does not toll an entry, as a feoffment does, after the determina ⁴⁴² tion of the estate which the grantor had a right to pass 5 hut that an estate granted by a release or bargain and sale, continues till avoided by entry. That the true difference is this: if a man having only a defeasible or limited estate conveyS jn fee by reieaS(J or bargain and sale, the person having right may enter on the expiration of the grantor’s right, and avoid, but the estate continues until so avoided.

But if, instead of a release or bargain and sale, afeoffment is used, the estate cannot be avoided by an entry, but only by judgment in a real action. In a word, that the feoffment works a discontinu anee, which the release, or bargain and sale, without more, does not. But it is totally immaterial, quacunque via data, for let the operation of a release (as an equitable conveyance) be what it may, unconnected with a warranty, yet when so connected, it has all the effect of a feoffment to pass a fee, and equally produces a discontinuance. Gilb.

Tenures, 120. Harg. Co. Litt. (note) 330. b.

Litt. sect. 601. Salk. 245. 8 Vin. 513, 514, 515. 517. 523, 524, 525, 526. 532, 533. 2 Reeves, 141. The reason is obvious. The release passes a defeasible fee, avoidable by entry, and the warranty annexed rebuts the entry.

For it is to be understood that a warranty passes no right in itself, but merely rebuts the right of another. Shep. Touch. 327. 5 Bac. Abr. 447.

The principles contained in this objection would be ex-tremelyjust and applicable if the warranty was distinct from the release, and not inserted in it. As it stands, it is no objection at all, for at common law the release of tenant by the curtesy, or even of an ancestor having no interest at all with a 'warranty annexed, was a complete rebutter to the heir. This is proved by the statute of Gloucester of 11 Hen. VII. and by Co. Litt. 385. 387.

Litt. sect. 738. Shep. 181. 327. Co. Litt. 265. 371. When it is said in the books that a warranty cannot ⁴⁴³ enlarge an estate, the meaning is where the warranty is not contained in the deed creating the estate.

Thus, if a deed without warranty passes no more than a life estate, no subsequent warranty operating upon or having reference to that deed can enlarge or have effect beyond it. Such is Seymour’s case, 10 Co. 97. which was cited against us, in the General Court, in support of the objection now under consideration. In Seymour’s case there was no discontinuance, because the warranty was not coupled widt the deed. In our case there was a discontinuance for the reverse cause.

The fine in Seymour’s case operated on what passed by the deed, and so the warranty. But Seymour’s case is fully explained in S Bac. Abr. 96 and 2 Burr. 704 — 715. The rule, too, that a warranty ceases with the estate to which it is annexed, is to be explained in the same manner, 2. e the estate on the face, oí the deed in which the warranty is contained.

As, if the estate be on condition, the warranty is extinguished when the condition is broken. Co. Litt. 385. a. 387. a. 10 Co. 96. b. And so is 5 Bac. 449. (cited against us in the General Court,) “ the defeasance of the estate destroys the warrant}.” I take this