MCKEE'S LESSEE v. PFOUT, 3 U.S. 486 (1798)

U.S. Supreme Court

MCKEE'S LESSEE v. PFOUT, 3 U.S. 486 (1798)  3 U.S. 486 (Dall.)

M'Kee Lessee
v.
Pfout

Supreme Court of Pennsylvania

December Term, 1798

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.