Corwin et al. v. Corwin

Corwin et al. v. Corwin. Statute of uses. — Adverse possession. Under the statute of uses, a pecuniary consideration is necessary, to support a deed of bargain and sale. Affinity by marriage is not a consideration which will support a covenant to stand seised to uses. The possession of one entitled in right of his wife, or as tenant by the curtesy, will be presumed (nothing being shown to the contrary), to be held in virtue of such right, and not to be adverse, though he also hold a void deed, purporting to convey the fee; to render such possession adverse, possession under the deed must be shown. Corwin v. Corwin, 9 Barb. 219, reversed. Appeal from the general term of the Supreme Court, in the second district, where a judgment for the plaintiffs, upon demurrer to the answer, had been affirmed. (Reported below, 9 Barb. 219.) This was an ejectment to recover possession of two undivided eleventh parts of fifty acres of land, in the town of Riverhead, in Suffolk county, which the plaintiffs claimed in fee. On the 27th of July 1801, Isaiah Tuthill being seised of the said 50 acres of land in fee, executed and delivered to Jabez Corwin, the husband of his daughter, a deed which “in consideration of natural love and affection which I (the grantor) have and do bear to my son-in-law, Jabez Corwin, and for the better maintenance of him the said Jabez Corwin,” purported “to give, grant, alien and confirm” to the said Jabez Corwin, “ his heirs and assigns for ever” the lands in question, with the usual covenant for quiet enjoyment. * o,jq -i *The daughter of Isaiah Tuthill (Mrs. Corwin) d4d -* died in April 1823, leaving a son, the defendant, Jabez Corwin, Jr., surviving. After the death of the defendant’s mother, his father remarried, and the plaintiffs were two of his sons, by his second wife. Jabez Corwin, the father, died on the 29th September 1836, leaving eleven children surviving. The defendant claimed title as the heir-at-law of his grandfather, Isaiah Tuthill; the plaintiffs, as heirs-at-law of their father, Jabez Corwin. The defendant put in an answer setting forth the titles of the respective parties, as above; and further stating that Jabez Corwin continued to have the use, occupation and enjoyment of the premises, from about the time of the date of the deed, to the time of his death, but had never any title except what he acquired by virtue of said deed, or as tenant by the curtesy, in right of his first wife; and that the plaintiffs had no estate or interest in the premises except as heirs-at-law of their father. The plaintiffs demurred to the answer, and judgment was rendered in their favor at special term, on the ground, that the deed of the 27th of July 1801, from Isaiah Tuthill to Jabez Corwin, was valid, as a covenant to stand seised; and the judgment was affirmed, at general term, on the ground that, even if the deed was void, Jabez Corwin had title by adverse possession. The defendant, thereupon, appealed to this court. Hill, for the appellant. Allen, for the respondent. [MAJORITY — *Johnson, J.] *Johnson, J. — The defendant’s answer sets up r the facts on which, as he alleges, the question of *- the plaintiffs’ title depends; to this answer the plaintiffs have demurred, and thereby admitted the truth of the facts stated. The answer does not allege that Jabez Cor-win was ever in possession of the lands in question, between the date of the deed to him and the death of the grantor in the deed, on which latter event, he became entitled "to the possession of the ■ land, -as tenant by the curtesy initiate. He does not, therefore, appear to have been in possession under his deed, at any time. There being neither livery of seisin, nor possession under the deed, the plaintiffs fail to make out a title in Jabez Cor-win, Sr., unless the deed can be sustained as a conveyance under the statute of uses. It has been contended, that it operates either as a bargain and sale, or as a covenant to stand seised. It cannot operate in the first way, because it shows no pecuniary consideration; nor in the second, because affinity by marriage is not a consideration on which a covenant to stand seised can be maintained. Of course, I do not speak of a deed in consideration of marriage, properly speaking, viz., of marriage to be had; this is a valuable consideration. We do not intend to be understood, as expressing, any opinion upon the effect (should the plaintiffs obtain leave to reply in the court, below) of adding to the case an averment, in reply, that Jabez Corwin was in possession under the deed to him, before the death of Isaiah Tut-hill. In the present aspect of the case, the judgment of the supreme court must be reversed, and judgment rendered for the defendant on the demurrer. Judgment reversed, and judgment for the defendant on the demurrer.