This was an ejectment tried at the Nisi Prius for Dauphin county
in October 1795, when a verdict was given for the Lessor of the
Plaintiff, subject to the opinion of the Court, on a case, stating
the following facts.
On the third of January 1794, a warrant had issued for the lands
described in the declaration i favor of James Chambers; who, on the
6th of January 1758, made his will, and, inter alia, devised, 'that
all his estate, after payment of his debts, be equally divided
between his wife Sarah, and his children Rowland, Ann, Sarah,
James, Elizabeth, Benjamin, and Joseph, each one eighth part.' The
Lessor of the Plaintiff claimed one eighth part of the premises
under the testator's daughter Ann, who had intermarried, twenty
years ago, with Oliver Ramsay, by whom she had issue, and died.
Before her death, however, on the 22nd of October 1779, she had
joined with some of the other devisees, in conveying their
respective shares in the estate, for a valuable consideration, to
Andrew Strout, the real Defendant; but, at the time of executing
the conveyance (touching which, she was separately examined by a
Judge of Dauphin county) she had been driven away by her husband,
and lived separate from him; a fact with which the Lessor of the
Plaintiff was well acquainted. On the 1st of October 1785, Oliver
Ramsay (who is still living) executed an indenture between him and
the Lessor of the Plaintiff, wherein it is set forth, 'that the
said Oliver hath granted, bargained, sold, aliened, released,
enfeoffed and confirmed, and doth grant, bargain, sell, alien,
release, enfeoff and confirm, unto Robert M'Kee, in his actual
possession now being, by virtue of a bargain and sale to him made,
by the said Oliver, as these presents, and by virtue of the
statute, for transferring uses into possession, and to his heirs
and assigns, my undivided part and respective share and purparts of
him the said Oliver Ramsay, of, in and to that certain piece or
tract of land, before described, with all and singular ways &c.
and reversions and remainders.
Page 3 U.S.
486, 487
and also all the estate, right, title, interest, claim and
demand, whether at law or in equity, of him the said Oliver, of, in
and to the same, to have and to hold the said respective share and
purpart, of in and to the said plantation, and tract of land,
hereditaments, and premises, hereby granted, mentioned or intended
to be, with the appurtenances, unto the said Robert M'Kee, To the
only proper use, benefit and behoof of them the said Robert M'Kee,
his heirs, and assigns forever. And the said Oliver Ramsay for
himself, his heirs, executors and administrators, not jointly, do
covenant, promise, and grant to and with the said Robert M'Kee, his
heirs and assigns. That he said Oliver Ramsay, hath not done or
committed any act, matter, deed, or thing whatsoever, whereby or
wherewith his said and respective share and purpart of, in, and to
the said piece or tract of land, hereditaments, and premises, are
or shall or may be impeached, charged or incumbered, in title,
charge, estate, or otherwise howsoever. And the said Oliver, for
himself, his heirs, executors, and administrators, not jointly, do
covenant, promise, and grant, to and with the said Robert M'Kee,
his heirs and assigns, that the said Oliver, his heirs, executors
and administrators, his share and purpart, of him the said Oliver
Ramsay, of, in, and to, the piece or tract of land aforesaid,
hereditaments and premises, against them, their, and each and every
of his heirs and assigns, and all and every person and persons
whatsoever, lawfully claiming, or to claim by from or under him, or
either of them, his or any of his heirs or assigns shall, and will
warrant, and forever defend by these presents. And that said
Oliver, and his heirs, not jointly, do further covenant, promise,
and grant, to and with the said Robert, that they, him, her, or any
of them, shall and will, at any time or times hereafter, at and
upon the reasonable request, proper costs and charges, in law, of
the said Robert M'Kee, his heirs or assigns, make, execute and
acknowledge, or cause so to be, all, and every such further and
other reasonable act or acts, deed or deeds, device or devices, in
the law whatsoever, either by fine or recovery, or otherwise
howsoever, for the further and better conveyance, assurance and
confirmation of his respective share and purpart of him the said
Oliver, of in and to the said piece or tract of land aforesaid,
hereditaments, and premises, unto the said Robert, his heirs, and
assigns, as by him or them, or his or their counsel learned in the
law, shall be reasonably advised, devised, or required.'
There is no consideration mentioned in this deed; but there was
a separate receipt for L.60, given by Oliver Ramsay to
Page 3 U.S.
486, 488
Robert M'Kee; and the deed was acknowledged, and recorded, on
the day of its date.
The general question submitted to the Court, was whether a
conveyance in fee, by a tenant by the curtesy, is not a forfeiture
of his estate? And it was argued by Ingersoll, for the Lessor of
the Plaintiff, and by Duncan and C. Smith, for the Defendant.
For the Lessor of the Plaintiff. The special warranty shows the
intention of the party; it secures the grantee against any previous
incumbrances by the grantor, and against persons claiming under
him, his heirs, or assigns; but there is no covenant, not even a
declaration, that he is seized in fee; and, in effect, he simply
conveys his own right, whatever that may be A freehold, though not
a fee, may be made descendible to heirs and the nature of the
conveyance under the statutes, and with the clause of warranty
under the act of Assembly (1 Vol.111.Dall. edit.) conveys only such
estate as the vendor might lawfully part with. If a tenant for his
own life aliens by feoffment, or fine, for the life of another, or
in tail, or in fee, it is a forfeiture; 2 Black. Com. 274. Co.
Litt. 251. Litt. s. 415. but the reason is, that such an alienation
tends to defeat and divest the remainder. In a feoffment, by the
word Dedi, since the statute Quia Emptores, the feoff only is bound
to the implied warranty; and in other forms of alienation, no
warrant whatsoever is implied. 2 Bl. C. 300. 1. Co. Litt. 384. Co.
Litt. 102. Litt. s. 733. The present deed is a bargain and sale; a
contract to convey for a valuable consideration; 2 Bl. Com. 338.
and it has its force and operation by the statute of uses. 2 Bl.
Com. 327. 337. The force and operation of the words 'grant,
bargain, and sell,' under the act of Assembly, (1 Vol. 111. Dall.
edit.) do not apply where a special warranty is introduced into the
deed, and the previous section of the act only gives to deeds
acknowledged and recorded the effect of a feoffment, or a deed
inrolled in England, to perfect the title and seisen of the
grantee; a mere bargain and sale not being before so strong a
conveyance, as livery. Shep. T. 219.n. (I.)
For the Defendant. The act of Assembly declares, that deeds
recorded shall be of the same force and effect here, for the giving
possession and seisen, and making good the title and assurance of
lands, tenements and hereditaments, as deeds of Feoffment with
livery of seisen, or deeds enrolled in any of the Courts of record
at Westminster, are or shall be in the kingdom of Great Britain. 1
Vol. p. 111. Dall. edit. The present deed is, therefore, an
absolute and efficient conveyance in fee, whereas the grantor had
only an estate for life, as tenant by the curtesy, in the premises.
But if tenant for life, or years, conveys a
Page 3 U.S.
486, 489
greater estate, than he can lawfully do, whereby the reversion,
or remainder is divested, it will be a forfeiture of his estate, as
if he makes a feoffment. Co. Litt. 251.a.b. The law is the same in
the case of an alienation by a tenant by the curtesy. Ibid. 252. a.
The recording a deed is made, by the act of Assembly, equal in
solemnity to livery of seisen, as public and notorious, and as
operative to pass and vest the estate. So, if tenant for life
bargains and sells his lands by deed enrolled, although no fee
passes, yet it is a forfeiture, and that by reason of the
enrollment, which is matter of record. 2 Leon. 64. 5. In
Pennsylvania, the deed on record is itself a record, and a copy of
it is evidence. So, if a tenant for years make a feoffment, it is a
forfeiture of his estate; 3 Mod. 151. and, when it is said, in the
case cited, that if he makes a lease and release, though it is of
the same operation, it will not amount to a forfeiture; the reason
is assigned in 1 T. Rep. 744. that a lease and release is a lawful
conveyance, and passes no more than a man may lawfully part with. 2
Bl. Com. 274. 5. The particular tenant, by granting a larger estate
than his own, has, by his own act, determined and put an end to his
original interest; and on such determination the next taker is
entitled to enter regularly, as in his remainder, or reversion. The
criterion of the forfeiture is the actual passing an estate, which
the grantor has no right to pass, to the prejudice of him in
remainder; it amounts to a disseisin. Feoffment without livery, is
said to pass no interest, which is the reason why such a feoffment
is not a forfeiture; but by the act of Assembly, a deed recorded is
equal to a feoffment with livery; and it is the matter of record,
that makes the forfeiture. Harg. Co. Litt. 59. a. n. (3.)
The Court stopped Ingersoll, when he was about to reply, and
delivered their opinion as follows.
M'Kean, Chief Justice.
We entertain no doubt on the present question. The Legislature
has, at various periods, and on a variety of subjects, departed
from feudal ceremonies and principles, in relation to the transfer
and descent of property; but, in the present instance, the act of
Assembly meant only to give to a grant of lands, a greater effect
upon the estate, on recording the deed, than could previously have
been enjoyed, without livery of seizen: It never contemplated that
circumstance, as an instrument to work a forfeiture, on the common
law doctrine of alienation by tenant for life, or years.
Shippen, Justice.
From the words of the act of Assembly, it is plain, I think,
that the Legislature did not mean to work the forfeiture of a
particular estate, by the provision for recording deeds. In
allowing to deeds recorded the same force and effect, as feoffments
with livery, the intention is expressly restricted
Page 3 U.S.
486, 490
to 'giving possession and seisen, and making good the title and
assurance of lands, tenements, and hereditaments.' It is,
therefore, merely a facility and benefit extended to the
grantee.
Yeates and Smith, Justices, concurred.
Judgment for the Plaintiff.
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