Smith and wife against Pendell

Smith and wife against Pendell. A, after disposing of a portion of his estate by will, devised to his grand-daughter E all the remainder of his lands and estate, hoping she might Uve to enjoy the same; but if she should die leaving bo natural heirs, his will was, that the property should go to C, the mother of E, E entered into possession of the lands thus devised to her, and while she was so in possession, C executed and delivered to her a quit-claim deed, releasing to her all right, title and interest, which C had, either in possession, remainder, reversion, or by bequest or under the will of A, or in any other way. E afterwards died, having never had issue. In an action of ejectment, brought by C, against the devisee of E} it was held, I. that a mere possibility of interest could neither be granted, devised nor released ; 2. that C, in this case, had not such a vested present interest in the estate in question, as could, by her deed, be conveyed to a stranger; 3, that C, however, had, under the will of A, a contingent remainder, the limitation over being to a person certain, upon an event entirely uncertain ; 4. that E} when she received the deed from C, being tenant-in-tail in possession, it was effectual to perfect the title of E against any future claim of C under the will of A. The quit-claim deeds in common use in this state operate as primary or original conveyances. This was an action of ejectment for three parcels of land lying in Stamford. The defendant pleaded the general issue, which was closed to the court. The cause was tried at an adjourned term of the superior court in Fairfield county, in April 1847 ; when the following facts were found. ’ On the 7th of March 1815, David Smith, who then, and ever afterwards until his death, owned the demanded premises, made his last will and testament, in which, after devising certain estate to his daughter-in-law, Hannah Smith, widow of his deceased son, Ezra Smith, he devised as follows: “And to my beloved grand-daughter, Elizabeth Smith, I do give all the remainder of my lands and estate, hoping she may live to enjoy the same; but if the said Elizabeth should die, leaving no natural heirs, my will is, that the same shall go to my said daughter-in-law Hannah Smith, mother of said Elizabeth, and to be her own,” &c. After the decease of the testator, viz. on the 24th of April 1820, his will was duly proved and established. The demanded premises are a part of the estate mentioned in the will as devised to said Elizabeth Smith; who after her grand-father’s death, went into possession thereof, and continued in possession until the 1st of January 1842, when she died, without ever having had a child. While she was so in possession, viz. on the 26th of October, 1841, said Hannah Smith, and her husband Eber Smith, executed and delivered to said Elizabeth, then the wife of William Pendell, since deceased, a quit-claim deed of all their right, title and interest, in the lands in question, which the releasors, or either of them, had, either in possession, remainder, reversion, or by bequest, or under the will of David Smith, or in any other way. For this deed, though purporting to be for the consideration of one dollar, no valuable consideration was in fact paid. On the same 26th day of October 1841, said Elizabeth made her will, and thereby devised said lands to William Pendell, her husband, in fee-simple. After her death, William Pendell went into possession of the premises, and continued in possession until his death, in January 1846. In the mean time, he had married another wife, named Elizabeth; to whom, by will, dated April 21st, 1845, he devised the premises in fee-simple. This devisee, after the death of her husband, went into, and has ever since continued in, possession. The present action was brought by Eber Smith and Hannah, his wife, claiming the premises in her right, against Elizabeth Pendell, claiming title under the will of her late husband, William Pendell. Upon the facts above stated, the case was reserved, for the advice of this court as to what judgment should be rendered in the suit. Hawley, for the plaintiffs, contended, 1. That Hannah Smith’s interest, during the life of Elizabeth, was, in every respect, contingent, not merely in regard to possession or enjoyment, but in regard to right and title. So long as Elizabeth lived, there was a possibility of issue ; and until her death, it could not be known whether Mrs. Smith would have any interest in the land, or not. It was a naked possibility. 2. That having only a naked possibility, during this period, she had no estate, which she could, by any instrument whatever not amounting to an estoppel, convey or release to Elizabeth. A quit-claim deed is clearly no estoppel. Cruise’s Dig. tit. Remainder, c. 7. s. 22. Co.Litt. 265. a. n. 212. by Bidder. Lilt. sec. 445, 6. Lacey v. Tomlinson, 5 Day 77. Dart v. Dart, 7 Conn. R. 250. 256. 5 Bac. Abr. 704. (Gwil. ed.) tit. Release. II. Shep. Touch. 321. 3. That consequently, on the death of Elizabeth, “ leaving no natural heirs,” i. e. without issue, the property in question vested in Hannah Smith, under the will of David Smith. Dutton and Ferry, for the defendant, contended, 1. That, by the will of David Smith, an estate-tail in his grand-daughter Elizabeth, was created by implication, with contingent remainder to the plaintiff, Hannah Smith. Hudson v. Wads-worth, 8 Conn. R. 358. and cases there cited. 2. That the interest of Hannah Smith under the will, was extinguished, by the quit-claim deed executed by her and her husband, on the 26th of October, 1841. In the first place, the terms of the deed undoubtedly embrace whatever interest she then had. The words are — “ all right, title, claim and demand whatever, which we, the releasors, or either of us, have, or ought to have, either in possession, remainder or reversion, or by bequest, or under the will, of David Smith, or in any other way.” Secondly, Hannah Smith had, at this time, a present fixed interest, which equity would protect. Hudson v. Wadsworth, 8 Conn. R. 348. It was assignable in equity. 1 Fearne, 536. Wright v. Wright, 1 Ves. 409. It was also transmissible to heirs, and deviséable. 1 Fearne, 534. 544. Thirdly, the authorities are uniform, that a release to the terre-tenant, in which all others join who have any interest in the estate, present or future, vested or contingent, is effectual to transfer such interest, whatever its nature may be, and to bar all future claims by such releasors. -Co. Litt. 268. a. Lampéis case, 10 Co. 48. Wright v. Wright, 1 Ves. 411. 2 Fearne, 529. n. Goodtitle d. Edwards v. Bailey, Cowp. 597. 2 Woodies. 212. ¡ 3. That the giving of such deed and the subsequent acquiescence on the part of the plaintiffs in the possession of the releasee therein named, and of her devisee, both claiming title under it, constitute an estoppel inpais. by which the plaintiffs are precluded from setting up a claim of title. Brown v. Wheeler, 17 Conn. R. 345. 353. Roe v. Jerome, 18 Conn. R. 138. Middletown Bank v. Jerome, 18 Conn. R. 443. [MAJORITY — Church, Ch. J.] Church, Ch. J. David Smith was the owner of the land in controversy until his death ; and by his last will and testament, dated March 7th, 1815, he devised it in the following language: “ And to my beloved grand-daughter, Elizabeth “ Smith, [afterwards the wife of William Pendell,’] I do “ give all the remainder of my lands and estate, hoping she “ may live to enjoy the same ; but if the said Elizabeth should “ die, leaving no natural heirs, my will is, that the same shall “go to my said daughter-in-law Hannah Smith, mother of “said Elizabeth, [one of the plaintiffs] and to be her own,” &c. Under this will, the said Elizabeth entered into the possession of the premises, and having married William Pendell, ishe continued in possession until her death ; and while she was thus in possession under the will of David Smith, the said Hannah Smith and her husband, the present plaintiffs, executed and delivered to her a quit-claim or release deed of this land, dated October 26th, 1841, as follows : “ We do, by “ these presents, remise, release and forever quit-claim unto “ the said Elizabeth all right, title, interest, claim and demand “ whatever, which we, the said releasors, or either of us, “ have, or ought to have, either in possession, remainder, re- “ version, or by bequest, or under the will, of David Smith, “ or in any other way.” Elizabeth, the grantee, died about the 1st day of January 1842, without ever having had a child ; and by her will, dated October 26th, 1841, she devised this land to William Pendell, her husband, in fee-simple. William Pendell married again, and died in January, 1846, after having devised this land to his wife, the present defendant. If the release or quit-claim deed from Hannah Smith and her husband to the first Elizabeth Pendell, was effectual to transfer or extinguish the interest of the said Hannah in these premises, the plaintiffs cannot recover ; and whether it was, is the question submitted for our advice. This question arises under the will of David Smith, connected with the fact, that Elizabeth Smith (Pendell) therein named, died “ leaving no natural heirs upon which contingency, the estate devised was to go to Hannah Smith, one of these plaintiffs. But Hannah had executed to Elizabeth the quit-claim deed before described. The claim of the plaintiff, is, that, when that deed was executed, Elizabeth was alive, and Hannah had no interest in the land, but only a naked possibility, which could not be affected or conveyed, by a release deed without covenants; and that the interest which afterwards arose from the death of Elizabeth, without children, was an original interest in Hannah, not existing when the quit-claim deed was executed, and ^therefore, not extinguished by it. It is true, if Hannah Smith, when she executed her deed of release, had nothing more than a possibility of interest, such deed was inoperative to extinguish her future rights, even after such a possibility had ripened into certainty; and though the releasee was in possession under a title ; because a mere possibility, unaccompanied with some present interest, can neither be granted, devised nor released; although it may be reached, by force of an estoppel in a deed, with covenants. Preston on Estates, 78. 1 Jarman on Wills, 40. 4 Kent’s Com. 498. Jones v. Perry, 3 Term R. 88. Dart v. Dart, 7 Conn. R. 251., and the cases there cited. Lacey & al. v. Tomlinson, 5 Day, 77. We do not think Hannah Smith had any such vested or present interest in this estate, as could, by her deed, be conveyed to a stranger; but we believe she had, under the will of David Smith, a contingent remainder. We cannot, in this respect, distinguish this case from the case of Hudson v. Wadsworth, 8 Conn. R. 348. The will which was there the subject of construction, having given to J. T. Hudson and others the residue of the testator’s estate, further directed, that in case of the decease of the said J. T. Hudson “ with- “ out lawful heirs of his body,” then the estate given to him “should be equally divided between F. and H., and their “ heirs and assigns forever.” The court, in that case, held clearly, that Hudson took an estate tail by implication, and the limitation over to F. and H. created in them a contingent remainder. The words “ natural heirs” and '‘heirs of the body,” in a will, and by way of executory devise, are considered as of the same legal import. The cases are very numerous, which confirm this construction ; many of which are referred to, in the case last cited. Here, as in that case, the limitation over was to a person certain, but upon an event entirely uncertain; which brings the case within the most approved definition of a contingent or executory remainder. In the late case of Mackell v. Weeding, 8 Simons. 4. Sir L. Shadwell, V. C. said, “I consider it to be a settled point, that whether an estate be given in fee, for life, or generally without any particular limit as to its duration, if it be followed by a devise over, in case of the devisee dying without issue, the devisee will take an estate tail.” And in all such cases, the event being uncertain, if the person be certain, the remainder must be contingent. 1 Sw. Dig. 140. 1 Jarman on Wills, 488. The right of Hannah Smith, therefore, was more than a naked possibility, like that of an heir apparent; it was an interest in the estate, though a contingent one. Such an interest is descendible, and if not deviseable at common law, it was made so, by the English statute of wills; and it may also be the subject of equitable cognizance; but it must be conceded, that by the rules of the common law, it cannot be conveyed or transferred, by a deed,.of bargain and sale, or of feoffment, or other common law assurance, without covenants of warranty, to a stranger to the estate. And if this conveyance from Hannah Smith and her husband to Elizabeth Pendell had been of that character, we must say, that no interest passed thereby. 2 Preston on Estates, 15. Shepard’s Touchstone, by Preston, 29. Jones v. Roe, 3 Term R. 88. 1 Sw. Dig. 121. But we have said, that Elizabeth Pendell, when she received the quit-claim deed from the plaintiffs, was tenant-in-tail in possession. This being so, this quit-claim or release deed was effectual to enlarge her estate, and to confirm the ultimate interest in her. and her heirs general, if she should die without children, by creating in her, in that event, a fee-simple. And this, no doubt, was the intention of these parties. The quit-claim deeds in common use in this state, operate as primary or original conveyances ; and when made to a tenant in possession, have all the legal effect of release deeds at the common law; which are defined to be a discharge or conveyance of a man’s right in lands to another, that hath in them some former estate in possession. 2 Bla. Com. 234. Although by the common law, neither a mere possibility, nor a chose in action, can be assigned, by deed, to a stranger ; yet actual rights, though but, contingent, and especially contingent remainders, may be released. The law on this subject was well understood, in the days of Littleton, who says : “ For in every case, where he to whom the release is made, “ hath the freehold in deed or in law, at the time of the release, “ there the release is good.” Sec. 447. Co. Lilt. 265. b. And it is said, that such contingent rights to an estate of freehold may be released in five manners. 1. To the tenant of the freehold in fact and in law, without any privity. 2. To the person in remainder. 3. To the person who is seised of the reversion, without any privity. 4. To the person who has right only in respect of privity. 5. In respect of privity only, without right. In the present case, it is enough, that Elizabeth Pendell, when she received the release, was undoubtedly the tenant of the freehold, both in fact and in law ; and therefore, the release was effectual to transfer all the rights of Hannah Smith, and to perfect the title of Elizabeth, against any future claim of Hannah under the will of David Smith. Co. Litt. 265. a. n. 212. by Butler. Preston on Estates, 75. Lampet's case, 10 Co. 48. Lacey & al. v, Tomlinson, 5 Day, 77. 3 Bla. Com. 324. 1 Sw. Dig. 121. We must therefore advise the superior court, that judgment be rendered for the defendant. In this opinion the other Judges concurred. Judgment for defendant.