1. As a general thing, any legal conveyance will have the same
effect upon an equitable estate that it would have upon the like
estate at law, and whatever is true at law of the latter is true in
equity of the former. The rule in
Shelley's Case applies
alike to equitable and to legal estates, and an equitable estate
tail may be barred in the same manner as an estate tail at law.
2. A use limited upon a use is not affected by the statute of
uses. The statute executes but the first use. In the conveyance by
deed of bargain and
Page 72 U. S. 269
sale, the whole force of the statute is exhausted in
transferring the legal title in fee simple to the bargainee, and
the second use remains as a trust.
3. A private act of the Legislature of New Jersey (passed in
1818) by which an estate meant to be settled in apparently some
sort of tail, but over the deed settling which (executed in 1793)
doubts and difficulties of law hung, making the rights of the
several parties uncertain, the object of which private act was to
dock the entail, unfetter the estate, and divide it equally between
children in fee, was held to be a proper exercise of the
legislative power to effect an assurance of title through a private
statute, and valid, all parties in interest
in esse at the
time having been before the legislature and having either asked for
the act or consented that it should pass, and there being no ground
for imputation on any of them of fraud, indirection, or
concealment, the partition, moreover, having been made by
disinterested commissioners, having been equal and fair, and all
parties in esse in interest having confirmed it by conveyances and
releases mutually made.
4. A purchaser
bona fide holds adversely to all the
world, and may disclaim the title under which he entered and set
up, even as against his vendor, any title whatever.
5. A remainder is to be considered as vested when there is a
person in being who would have an immediate right to the possession
upon the ceasing of the intermediate particular estate. And it is
never to be held contingent when, consistently with intention, it
can be held vested.
6. Under the Act of the New Jersey Legislature of June 5, 1787
(§ 2), declaring that thirty years' actual possession, where such
possession was obtained by a fair and
bona fide purchase
of any person supposed to have a legal right and title shall vest
an absolute right and title in the possessor and occupier, no
qualification is made as to issue in tail, and where a special
verdict found that the defendant obtained possession by a
bona
fide purchase from a party in possession and supposed to have
a valid title, and the court held that the estate in remainder of
the party in possession and supposed to have the valid title was a
vested remainder, not a contingent one, the case was considered to
be brought within the meaning of the statute as within its
letter.
Robert Morris Croxall, the plaintiff in error, in September,
1863 -- the year is important -- brought ejectment in that court to
recover certain premises in New Jersey. The jury found a special
verdict in substance thus:
On the 15th of November, 1793, Robert Morris, being seized in
fee simple of certain lands in the state just named, an indenture
tripartite was made between him, of the first part, Charles Croxall
and Mary, his wife, of the second, and
Page 72 U. S. 270
Robert Morris, Jr., Adam Hoops, and Aaron Dickinson Woodruff, of
the third. The deed set forth that for the better settling and
assuring of the lands therein described and intended to be conveyed
and settled upon the uses and subject to the trusts, and for the
purposes thereinafter limited, and in consideration of ten
shillings paid to the said Robert Morris by the said Robert, Jr.,
Adam, and Aaron, the said Robert Morris thereby conveyed to the
parties of the third part, and to their heirs, the land situated
&c. The habendum was thus:
"To have and to hold the said messuage, lands &c., to the
said Robert, Jr., Adam, and Aaron, their heirs and assigns, to the
uses, trusts, intents, and purposes hereinafter mentioned, limited,
expressed, and declared of and concerning the same -- that is to
say to the use and behoof of the said Charles Croxall and his
assigns for and during the term of his natural life, and from and
immediately after the decease of the said Charles to the use and
behoof of the said Mary, his wife, and her assigns, for and during
the term of her natural life, in case she shall happen to survive
the said Charles, and from and after the determination of the said
estates so limited to them, the said Charles and Mary, his wife,
for their several and respective lives, to the use and behoof of
the said Robert, Jr., Adam, and Aaron, and their heirs, for and
during the lives of them, the said Charles and Mary, his wife, and
the life of the longer liver of them, upon trust to preserve the
contingent uses and remainders thereof, hereinafter limited, from
being destroyed, and to and for that purpose to make entries as
occasion shall require, but not to convert any of the profits of
said premises to their own uses, but nevertheless in trust to
permit and suffer the said Charles and his assigns, during his
natural life, and after his death, the said Mary, his wife, and her
assigns, during her natural life, to receive and take the rents,
issues, and profits of all and singular the said premises, with the
appurtenances, to and for their respective uses and benefits; and
from and immediately after the death of the survivor of them, the
said Charles and Mary, his wife, then to the use and behoof of the
heirs of the body of the said Mary, by her present husband lawfully
begotten, or to be begotten, and to the heirs of his, her, and
their
Page 72 U. S. 271
bodies lawfully to be begotten, and in default of such issue
then to the use and behoof of the said Robert Morris, party of the
first part to these presents, and of his heirs and assigns forever,
and to or for or upon no other use, trust, intent, or purpose
whatsoever."
The grantees thereupon became seized of the premises, and
Charles Croxall and his wife, and their assigns occupied and
possessed them and received and enjoyed the profits until the
premises were divided as hereinafter stated among the children of
the said Charles and Mary, Charles Croxall, prior to 1817, having
erected a mansion house upon that part of the premises now in
dispute.
Mary, the wife of Charles Croxall, was the daughter of the
grantor, Robert Morris, and was married to the said Charles long
prior to the making the indenture, and had by him before, as well
as after it was executed, several children, all of whom died
unmarried and without issue in the lifetime of their parents except
four, namely Thomas, Daniel, Ann Maria (who intermarried with
Claudius Legrand), and Morris Croxall, who severally survived their
parents, the said Charles and Mary -- the said Thomas being the
eldest, and having been born prior to the execution of the said
deed.
Mary Croxall died in July, 1824, and Charles Croxall in
November, 1831. Thomas Croxall was married in the year 1813, and
had nine children -- three of whom died without issue in the
lifetime of their father. The remaining six, of whom one was Robert
Morris Croxall, the plaintiff, survived the said Thomas, and were
still living. This Robert Morris Croxall, the only surviving son,
was born on the 19th of March, 1821.
Thomas Croxall died in October, 1861.
On the 26th June, 1798, Charles Croxall and Mary, his wife, for
the consideration of five shillings, conveyed the land by deed of
bargain and sale to J. and W. Gallagher, their heirs and assigns,
for and during the life of the said Charles, and after his death
during the life of the said Mary, if she should survive him, in
trust out of the rents
Page 72 U. S. 272
and profits to pay certain debts of the said Charles, and to
enable the said Mary to receive any sum, not exceeding four hundred
dollars per annum, and after the debts were satisfied and the
trustees reasonably compensated, to convey back the premises to the
said Mary, her heirs and assigns.
On the 11th July, 1804, the Gallaghers conveyed the lands to
Mary Croxall, to hold the same during life.
In December, 1807, the Court of Errors and Appeals of New
Jersey, in a suit in chancery, wherein the Gallaghers were
complainants and Charles and Mary Croxall were respondents, decreed
that the appellants, upon certain terms and conditions set forth,
should deliver possession of the entire estate to Charles and Mary
Croxall, and that they should convey the same to the said Mary, her
heirs and assigns, pursuant to their agreement of June 26, 1798.
The conditions of the decree were complied with, and the Gallaghers
conveyed to Mary Croxall accordingly.
On the 1st of July, 1814, Charles and Mary Croxall executed to
their two sons, Thomas and Daniel, a deed of bargain and sale for
one undivided half of the property, with a covenant that they had
done nothing to encumber the estate, and that they would warrant
and defend against all persons claiming under them, or either of
them. There was also a covenant for further assurances.
On the 9th of May, 1808, all the interest of Charles Croxall in
the premises was sold under execution to William McCullogh, and a
sheriff's deed executed. On the 17th of May, 1808, McCullogh sold
and conveyed to one Milner, who on the next day, conveyed the
premises to A.D. Woodruff, Peter Gordon, and Jonathan Rhea, their
heirs and assigns, to hold them during the natural lives of Charles
and Mary Croxall in trust for the sole and separate use of Mary
during life and also to preserve the same from waste, so that after
her death the same might enure to the heirs of her body by the said
Charles Croxall, to the uses declared by the deed tripartite of
15th November, 1793, for the same premises. Shortly after the
execution of the deed last mentioned, and before the application to
the Legislature of New Jersey,
Page 72 U. S. 273
by Thomas Croxall, hereafter mentioned, Woodruff and Rhea died,
leaving Gordon the sole surviving trustee, under the deed executed
by Milner. Before that application also, Thomas, Daniel, and Anna
Maria Croxall had arrived at majority, and Anna Maria had married,
as before stated. Morris Croxall arrived at majority in 1820. Prior
to that time and to the application to the legislature, Gordon was
his guardian.
In November, 1817, Thomas Croxall presented a petition to the
legislature, asking for the partition of the premises. The petition
stated that the title and right of possession for life had become
vested in Mary Croxall, and that in the year 1814 she had, under
the advice of counsel, conveyed to the memorialist all her right
and title to the undivided part of the estate to which he, as an
heir, laid claim. The aid of the legislature was invoked for the
reason, as stated, that difficulties had arisen among the different
branches of the family in relation to the property, that the estate
was so situated as not to produce to its respective owners the
income which it ought to yield, and that causes of litigation
frequently occurred. Charles and Mary Croxall, Daniel Croxall,
Legrand and wife, and Morris Croxall, by Peter Gordon, his
guardian, submitted a remonstrance. The remonstrance was afterward
withdrawn, and with the consent of all the parties,
an act of
the legislature was passed February 14, 1818, which appointed three
commissioners, with power to divide the estate into four equal
parts, and to set off and apart to each of the children of Charles
and Mary Croxall, one equal fourth part by metes and bounds and in
severalty. The was accordingly done. The premises in dispute in
this case are a part of the share set off to Morris Croxall.
The heirs afterwards mutually released and quitclaimed to each
other according to the partition so made. Charles and Mary Croxall
joined in the deeds. The deeds from Morris Croxall and the deed to
him were executed after he arrived at the age of twenty-one years.
Charles and Mary Croxall reserved for their use during their lives
a part of his share. This was not embraced in their deed to him.
The premises in dispute are a
Page 72 U. S. 274
part of what was reserved. Thomas and Daniel Croxall, with
Legrand and wife, in 1819, upon the execution of the deeds to them
respectively, took possession in severalty of their respective
shares and held and enjoyed the same until they severally sold and
conveyed to Garrett D. Wall, as hereafter stated. Morris Croxall
did the same with respect to his share, except as to the part
reserved for the use of his father and mother, which they occupied
-- he living with them. Their occupancy continued until the death
of Mary, in 1824. Charles continued his occupancy after her death,
until he also sold and conveyed to Wall.
The deeds of the
several parties to Wall were all executed in the year 1825.
The deed of Morris includes the land in dispute in this case. At
the time of the conveyance by Thomas Croxall, Wall held three
mortgages upon the premises constituting his share, and had also
bought the same at a sale upon execution and received a deed from
the sheriff. When Daniel conveyed, Wall held a mortgage upon his
share, and had also bought in the property at a sale under
execution, and received the sheriff's deed accordingly. Wall had
also taken up a mortgage executed by Morris Croxall before Morris
conveyed to him. Wall is dead. The mortgages are held by his family
as muniments of title. On the 13th of September, 1825, Charles
Croxall, his wife being then dead, released and quitclaimed to Wall
all his interest in the entire premises so conveyed to Wall,
whether that interest was in his own right or in right of his
deceased wife. Wall paid the full value of the several parcels of
the property at the times when the same were respectively conveyed.
The lands have since been greatly increased in value by
improvements put upon them by Wall and those who purchased from
him. A large portion of the Town of Belvidere now stood upon
them.
On the 25th January, 1827, Wall conveyed to Shererd,
the defendant in the case, by deed of bargain and sale, for the
consideration of $2,200, the full value of the property at the
time, a portion of the premises. They now made part of the Town of
Belvidere.
Upon the making of the several deeds to Wall he
immediately entered into possession under the conveyances,
Page 72 U. S. 275
and Shererd, upon the making of the deed of conveyance to
him by Wall, immediately entered into possession as the owner, and
has ever since been in possession, and for one year prior to the
making of the deed he had been in possession as the tenant of Wall.
Possession was obtained by the defendant by a fair bona fide
purchase of the property in question, of a party in possession, and
supposed to have a legal right and title thereto.
Upon this special verdict, the court below gave judgment for the
defendant. The case was now on error in this Court.
To understand the case fully, it is necessary to state that in
New Jersey the legislature, by a statute of August 25, 1784
[
Footnote 1] (explained by one
of March 3, 1786, and repealed apparently by one in 1820), had
enacted that:
"All devises heretofore made in tail as aforesaid, which have
not already passed through one descent since the death of the
testator, and also all such devises which shall hereafter be made
in tail of any kind, shall be deemed, taken, and adjudged to vest
in and entitle the person to whom the same may descend, agreeably
to the devise or entailment, after the decease of the first
devisee, to all the estate in the devised premises which the
testator was entitled to and might or could have devised; and that
no entailment of any lands or other real estate shall continue
to entail the same in any case whatever longer than the life of the
person to whom the same hath been or shall be first given or
devised by such entailment."
Also that an act to abolish fines and recoveries was
passed June 12, 1799, [
Footnote
2] as on the following day an act [
Footnote 3] declaring that from that day "no statute of
the Parliament of England or Great Britain should have force within
the State of New Jersey."
Also that (by Act of June 5, 1787, section 2d),
[
Footnote 4]
"Thirty years' actual possession of any lands, tenements, or
other real estate, uninterruptedly continued as aforesaid, . . .
wherever such possession was obtained by a fair
bona fide
purchase of such lands, tenements, or other real estate, of any
Page 72 U. S. 276
person or persons whatever in possession, and supposed to have a
legal right and title thereto, or of the agent or agents of such
person or persons, shall be a good and sufficient bar to all prior
locations, rights,
titles, conveyances, or claims whatever
not followed by actual possession as aforesaid, and shall vest an
absolute right and title in the actual possessor and occupier of
all such lands, tenements, or other real estate."
The act had the usual exceptions in favor of infants,
feme
coverts &c., but not others.
The case was argued at much length, and most interestingly, on
the whole learning of estates tail, contingent remainders, the rule
in
Shelley's Case, and how far affected by the statutes of
New Jersey of 1786, 1799, and 1820, the different qualities of
legal and equitable estates in connection with the particular
subject, the effects of the different sorts of assurances at common
law and under the statute of uses, as also on the more usual
learning of the private statute of 1818 and the statute of
limitations of 1787. The fact that the court apparently deemed it
proper to rest its judgment on these last grounds chiefly and "not
to go beyond them" will be a sufficient excuse for a very slight or
no report of so able and learned a discussion at the bar.
Page 72 U. S. 280
MR. JUSTICE SWAYNE delivered the opinion of the Court.
Whether under the deed of Robert Morris of the 15th November
1793, Charles Croxall was tenant for life, remainder to Mary
Croxall his wife, for life, remainder to their son Thomas Croxall
in tail -- whether Mary Croxall was not the donee in tail under the
rule in
Shelley's Case, and if so, whether her estate was
a legal or equitable one -- and whether
Page 72 U. S. 281
Thomas Croxall was not the donee or first tenant in tail, and if
he were the first or the second tenant in tail, whether he took a
legal estate by the operation of the statute of uses, then in force
in New Jersey, or whether he took an equitable estate, the statute
not executing the use created by the deed for his benefit, are
questions not without difficulty and upon which the views of some
members of the Court are not in harmony with those of others. As
there are grounds of decision not involving these inquiries upon
which we are all united in opinion, except one member of the Court,
as to one of the propositions, it is deemed proper to place our
judgment upon those grounds and not to go beyond them. If Thomas
Croxall, and not his mother, was the first tenant in tail, taking
under the deed by purchase, and not by limitation, it is immaterial
whether his estate was legal or equitable. In the law, if real
property, the principles which apply to estates of both kinds, with
a few limited exceptions not affecting this case, are the same. In
the consideration of a court of equity, the
cestui que
trust is actually seized of the freehold. He may alien it, and
any legal conveyance by him will have the same operation in equity
upon the trust as it would have had at law upon the legal estate.
[
Footnote 5]
The trust, like the legal estate, is descendible, devisable,
alienable, and barrable by the act of the parties and by matter of
record. Generally, whatever is true at law of the legal estate is
true in equity of the trust estate. [
Footnote 6]
The rule in
Shelley's Case applies alike to equitable
and to legal estates, [
Footnote
7] and an equitable estate tail may be barred in the same
manner as an estate tail at law, and this end cannot be
accomplished in any other way. [
Footnote 8]
Page 72 U. S. 282
In
Doe v. Oliver, [
Footnote 9] the testator had devised lands to his wife for
life, remainder to the children of his brother who should be living
at the death of his wife. But one child, a daughter, was living at
that time. She with her husband, in the lifetime of the devisee of
the life estate, levied a fine and declared the use to A. B. after
the death of the first devisee and the termination of her life
estate.
A. B. brought an action of ejectment for the lands and
recovered. It was held that the fine had a double operation, that
it bound the husband and wife by estoppel or conclusion, so long as
the contingencies continued, and that when the contingency
happened, the estate which devolved upon the wife fed the estoppel,
that the estate by estoppel created by the fine, ceased to be an
estate by estoppel only, and became an interest, and gave to A. B.
exactly what he would have had if the contingency had happened
before the fine was levied. If Mary Croxall took under the deed an
equitable contingent remainder for life, and Thomas at her death
would have taken a legal estate tail, if the estate still
subsisted, the statute in his case, executing the use, then the
estates could not coalesce, one being legal and the other
equitable, and the rule in
Shelley's Case would not apply.
In that view of the subject, Thomas and not his mother was the
donee in tail.
A use limited upon a use is not executed or affected by the
statute of uses. The statute executes only the first use. In the
case of a deed of bargain and sale, the whole force of the statute
is exhausted in transferring the legal title in fee simple to the
bargainee. But the second use may be valid as a trust and enforced
in equity according to the rights of the parties. [
Footnote 10]
But without pursuing the subject, let it be conceded, for
Page 72 U. S. 283
the purposes of this case, that Thomas Croxall was the donee or
first tenant in tail and that he took a legal estate, as contended
by the counsel for the plaintiff in error.
Taking this view of the subject, the first inquiry to which we
shall direct our attention is as to the effect of the act of the
legislature of the 14th of February, 1818 and of the proceedings
which were had under it. All the parties in interest then
in
esse were before the legislature, and asked for the act or
consented that it should be passed.
There is no ground for the imputation upon either of them of any
fraud, indirection, or concealment. It is not denied that the act
was deliberately passed, nor that the partition made under it by
the commissioners was fair and equal; all the parties testified
their approbation, and confirmed it by their subsequent
conveyances. The legal doubts and difficulties which hung over the
deed, the uncertainty of the rights of the several parties; the
learned and elaborate arguments, and conflicting views of the
counsel, and our differences of opinion in this litigation evince
the wisdom and the equity of the act. It is as clear by implication
as it could be made by expression that the object of the
legislature was to dock the entail and unfetter the estate. What is
implied is as effectual as what is expressed. [
Footnote 11] If it were possible for the parties
and the legislature to accomplish this object, it was thus done.
Had they the power? When the deed was executed, the statute
de
donis was in force in New Jersey, but modified by the Acts of
her legislature of the 25th of August, 1784, and of the 3d of
March, 1786. Fines and recoveries, as known in the English law,
were then a part of her judicial system. They were abolished by the
Act of June 12, 1799. By the act of 13th of June, 1799, it was
declared that no British statutes should thereafter have any force
within the state. The plaintiff's lessor was the son of Thomas
Croxall, and was born on the 29th of March, 1821. Estates tail,
under the statute
de donis, were, before the passage of
the statute, known in the common
Page 72 U. S. 284
law as conditional fees. Like estates tail, they were limited to
particular heirs to the exclusion of others. The condition was that
if the donee died without leaving such heirs as were specified, the
estate should revert to the grantor. According to the common law,
upon the birth of such issue, the estate became absolute for three
purposes:
1. The donee could alien, and thus bar his own issue and the
reversioner.
2. He could forfeit the estate in fee simple for treason.
Before, he could only forfeit his life estate.
3. He could charge it with encumbrances. He might also alien
before issue born, but in that case the effect of the alienation
was only to exclude the lord, during the life of the tenant, and
that of his issue, if such issue were subsequently born, while if
the alienation were after the birth, its effect was complete, and
vested in the grantee a fee simple estate. [
Footnote 12]
In this state of the law, it became usual for the donee, as soon
as the condition was fulfilled by the birth of issue, to alien, and
afterwards to repurchase the land. This gave him a fee simple
absolute for all purposes. The heir was thus completely in the
power of the ancestor, and the bounty of the donor was liable to be
defeated by the birth of the issue for whom it was his object to
provide. To prevent such results and to enable the great families
to transmit in a perpetuity the possession of their estates to
their posterity, the statute
de donis of the 13 Edward I,
known as the Statute of Westminster the 2d, was passed. It
provided
"That the will of the donor, according to the form in his deed
of gift manifestly expressed, should be observed, so that they to
whom a tenement was so given upon condition, should not have the
power of alienating the tenement so given, whereby it might not
remain after their death to their issue, or to the heir of the
donor, if the issue should fail."
Under this statute, it was held that the donee had no longer a
conditional fee governed by the rules of the common law,
Page 72 U. S. 285
but that the estate was inalienable, and must descend
"per
formam doni," or pass in reversion. The evils arising from the
statute were found to be very great. Repeated efforts were made by
the Commons to effect its repeal. They were uniformly defeated by
the nobility, in whose interest the statute was passed. It remained
in force and was administered without evasion for about two
centuries. In the reign of Edward IV it was held in
Taltarem's
Case [
Footnote 13] that
the entail might be destroyed by a common recovery. The effect of
this process was to bar alike the issue, the reversioner, and all
those to whom the donor had given other estates expectant on the
death of the tenant in tail without issue. The demandant took an
absolute estate in fee simple. [
Footnote 14] Fines were subsequently resorted to for the
same purpose. A statute of 32 Henry VIII declared a fine, duly
levied by the tenant in tail, to be a complete bar to him and his
heirs and all others claiming under the entail. Other incidents
were subsequently from time to time annexed to such estates. By a
statute of Henry VII, they were made liable to forfeiture for
treason. At a later period they were made liable for the debts of
the tenant to the Crown, due by record or special contract, and
still later they were made liable for all his debts in case of
bankruptcy. The power to suffer a common recovery has been
invariably held to be a privilege inseparably incident to an estate
tail, and one which cannot be restrained by condition, limitation,
custom, recognizance, or covenant. [
Footnote 15]
Private acts of Parliament are one of the modes of acquiring
title enumerated by Blackstone. They are resorted to when the power
of the courts of justice is inadequate to give the proper relief
and the exigencies of the case require the interposition of the
broader power of the legislature. They were very numerous
immediately after the restoration of Charles II. The validity of
statutes affecting private interests
Page 72 U. S. 286
in specific real property has been repeatedly recognized by this
Court. [
Footnote 16]
Blackstone says:
"Nothing also is done without the consent expressly given of all
parties in being and capable of consent that have the remotest
interest in the matter unless such consent shall be perversely and
without any reason withheld. [
Footnote 17]"
Here all who were interested consented. No interest vested or
contingent of the lessor of the plaintiff in error was involved,
and no consent was asked of him, for the reason that he was then
unborn.
In
Westby v. Kiernan, [
Footnote 18] it was held that a private act passed to
enable the tenant in tail to raise money bound the remainder. This
involved the power to destroy the estate by encumbering the
property to the full amount of its value.
We entertain no doubt that the act in question was valid and
that the partition made under it, and the deeds subsequently
executed, vested in each grantee a fee simple estate. This was the
necessary result whatever the quantity and character of the estate
of Mary and Thomas Croxall at that time.
It remains to consider the effect of the statute of limitation
relied upon by the defendant in error. The second section of the
Act of the 5th of June, 1787, declares that thirty years' actual
possession, where such possession was obtained by a fair and
bona fide purchase of any person in possession and
supposed to have a legal right and title, shall vest an absolute
right and title in the possessor and occupier. The deed of Morris
Croxall to Garrett D. Wall bears date on the 30th of September,
1825. Wall conveyed to Shererd, the defendant, on the 5th of
January, 1827. The special verdict finds that Wall took possession
at the date of the deed to him from Morris Croxall, and held it
until he conveyed to Shererd on the 5th of January, 1827, and that
Shererd was continuously in possession from that time down to the
commencement of the suit,
"and that possession was obtained
Page 72 U. S. 287
by the defendant by a fair and
bona fide purchase of
the lands in question of a party in possession and supposed to have
a legal title thereto."
The finding of the jury brings the case exactly within the terms
of the statute. And there had been uninterrupted possession for
more than the statutory period of thirty years when the action was
commenced.
It is said that the possession of the defendant was subordinate
to the ultimate right and title of the plaintiff's lessor, and was
in effect his possession. This is not so. The defendant was a
bona fide purchaser. Such a party holds adversely to all
the world. He may disclaim the title under which he entered, and
set up any other title and any other defense alike against his
vendor and against others. [
Footnote 19]
It is said also that the remainder to Thomas Croxall was
contingent and expectant until the death of his father and mother;
that nothing passed by his deed to Wall, and that the statute could
not, under these circumstances, affect the rights of his heir in
tail. Laying out of view the act of the legislature of 1818 and
what was done under it, this is still an erroneous view of the
subject. Thomas was living at the time of the execution of the deed
of 1793, and took at once an estate vested in right, and deferred
only as to the time of possession and enjoyment. It was in the
latter respect only contingent and expectant. If this were not so,
upon the death of the remainderman before the vesting of the
possession his children could not inherit. [
Footnote 20]
The struggle with the courts had always been for that
construction which gives to the remainder a vested rather than a
contingent character. A remainder is never held to be contingent
when, consistently with the intention, it can be held to be vested.
If an estate be granted for life to one person and any number of
remainders for life to others in succession, and finally a
remainder in fee simple or fee tail,
Page 72 U. S. 288
each of the grantees of a remainder for life takes at once a
vested estate, although there be no probability, and scarcely a
possibility, that it will ever, as to most of them, vest in
possession. [
Footnote
21]
Chancellor Kent says the definition of a vested remainder is
thus fully and accurately expressed in the Revised Statutes of New
York. It is "when there is a person in being who would have an
immediate right to the possession of the lands, upon the ceasing of
the intermediate precedent estate."
It is the present capacity to take effect in possession, if the
precedent estate should determine, which distinguishes a vested
from a contingent remainder. Where an estate is granted to one for
life, and to such of his children as should be living after his
death, a present right to the future possession vests at once in
such as are living, subject to open and let in after-born children,
and to be divested as to those who shall die without issue. A
remainder, limited upon an estate tail, is held to be vested,
though it be uncertain whether it will ever take effect in
possession. [
Footnote 22] A
vested remainder is an estate recognized in law, and it is
grantable by any of the conveyances operating by force of the
statute of uses. [
Footnote
23]
Such an estate, if the entail had not been destroyed, passed by
the deed of Thomas Croxall to Morris Croxall, by the deed of Morris
Croxall to Garrett D. Wall, and by the deed of Wall to the
defendant, Shererd. Whatever interest Charles Croxall had in the
property after the death of his wife passed by his deed of the 20th
of September, 1825, to Wall, and from Wall, under the covenant of
warranty in his deed, to Shererd.
The special verdict having found that the defendant obtained
possession by a
bona fide purchase from a party in
Page 72 U. S. 289
possession, and supposed to have a valid title, the case is
thus, in this view of the state of the title, brought again within
the letter, and, as we think, within the meaning of the statute.
The statute provides expressly that possession for the period of
limitation shall vest in the occupant "an absolute right and title
to the land." Such a title thus became vested in the defendant,
Shererd. This would have been the effect of the bar without such a
provision in the statute. [
Footnote 24]
The statute contains no qualification or exception as to issue
in tail, and we can interpolate none; nor can we review or reverse
the finding of the jury. In
Inman v. Barnes, [
Footnote 25] Mr. Justice Story
said:
"I take it to be well settled that if the time limited has once
run against any tenant in tail, it is a good bar not only against
him, but also against all persons claiming in descent
per
formam doni through him."
In
Wright v. Scott, [
Footnote 26] this same statute came under the
consideration of the court. The case involved entailed property.
The court gave the same construction to the statute which we have
given. Mr. Justice Washington remarked that if such were not the
proper construction, the issue in tail could never be barred. In
cases of this class, as in all others, when the statute has begun,
it continues to run until its effect is complete. It proceeds to
throw its protection over the property, and does not stop by the
way for any intermediate right which may have arisen during the
period of its progress. It allows no immunity beyond the savings
which it contains. Such statutes are now favorably regarded in all
courts. They are "statutes of repose," and are to be construed and
applied in a liberal spirit.
Our construction of this statute is sustained by the analogies
of the English and Massachusetts decisions respecting writs of
formidon in descender under the statute of the 21 James I, and
other statutes containing similar provisions. [
Footnote 27] The law presents other analogies
which tend strongly in the same direction. As between trustee and
cestui que trust -- a
Page 72 U. S. 290
joint tenant and a tenant in common, and their co-tenants, the
bar becomes complete when the period has elapsed, which the statute
prescribes, after the commencement of open and notorious adverse
possession. [
Footnote 28] We
think the special verdict sustains conclusively this defense.
The judgment below was properly given for the defendant in
error, and it is affirmed.
[
Footnote 1]
Paterson's Laws 53, 78.
[
Footnote 2]
Ibid., 411.
[
Footnote 3]
Ibid., 436.
[
Footnote 4]
Ibid.
[
Footnote 5]
Burgess v. Wheate, Eden 226;
Boteler v.
Allington, 1 Brown's Chancery 72.
[
Footnote 6]
Cholmondeley v. Clinton, 2 Jacob & Walker 148;
Walton v. Walton, 7 Johnson's Chancery 270;
Doe v.
Laming, 2 Burrow 1109;
Phillips v. Brydges, 3 Vesey
127.
[
Footnote 7]
Garth v. Baldwin, 2 Vesey Sr., 655;
Pratt v.
McCawley, 8 Harris, 264; Fearne on Remainders 121.
[
Footnote 8]
Saunders on Uses 280; Williams on Real Property 155.
[
Footnote 9]
14 Barnewall & Creswell 181.
[
Footnote 10]
Doe v. Passingham, 6 Barnewall & Creswell 305;
Gilbert on Uses, Sugden's note, 1;
Jackson v. Cary, 16
Johnson 304;
Franciscus v. Reigart, 4 Watts 108; Williams
on Real Property 181;
Roe v. Tranmarr, 2 Smith's Leading
Cases 511, note.
[
Footnote 11]
United States v.
Babbit, 1 Black 55.
[
Footnote 12]
Plowden 241.
[
Footnote 13]
Year Book, 12 Ed. IV, 14, 19.
[
Footnote 14]
2 Blackstone's Comm. 360; Cruise on Recoveries 258.
[
Footnote 15]
Knowles' Argument in
Taylor v. Horde, 1 Burrow 84;
Dewitt v. Eldred, 4 Sergeant & Rawle 421.
[
Footnote 16]
Stanly v. Colt, supra, <|72 U.S. 119|>119.
[
Footnote 17]
2 Commentaries 345.
[
Footnote 18]
2 Ambler 697.
[
Footnote 19]
Watkins v.
Holman, 16 Pet. 54;
Blight's Lessee v.
Rochester, 7 Wheat. 548;
The
Society v. Town of Pawlet, 4 Pet. 506;
Jackson v.
Huntington, 5 Pet. 402;
Willison v.
Watkins, 3 Pet. 43;
Voorhies v. White's
Heirs, 2 Marshall 26;
Winlock v. Hardy, 4 Littel
274.
[
Footnote 20]
Goodtitle v. Whitby, 1 Burrow 228.
[
Footnote 21]
Williams on Real Property, 208.
[
Footnote 22]
Goodtitle v. Whitby, 1 Burrow 228;
Wendell v.
Crandall, 1 Comstock 491;
Doe v. Lea, 3 Durnford
& East 41;
Moore v. Lyons, 25 Wendell 119;
Doe v.
Underdown, Willes 293;
Etter's Estate, 23 Pa.St. 381;
Vanderheyden v. Crandall, 2 Denio 18;
Boraston's
Case, 3 Coke 51; 4 Kent's Com. 202; Williams on Real Property
207.
[
Footnote 23]
Fearne on Remainders 216; 4 Kent's Com. 205.
[
Footnote 24]
Leffingwell v.
Warren, 2 Black 605.
[
Footnote 25]
2 Gallison 315.
[
Footnote 26]
4 Wash.C.C. 24.
[
Footnote 27]
Angel on Limitations § 360
[
Footnote 28]
Angel on Limitations, §§ 425, and 419 to 436.
MR. JUSTICE MILLER.
I concur in the judgment of the Court and in its opinion as to
the first ground on which the judgment is based.
In that part of the opinion which declares the statute of
limitation to be a good defense, I cannot concur. The facts
conceded by both parties show that until the death of Thomas
Croxall in 1861, the defendants and those under whom they claimed
had a lawful possession and were at no time liable to an action to
disturb that possession until that event, and I do not believe that
the statute of limitations of New Jersey or of any other country or
any rule of prescription was ever intended to create a bar in favor
of parties in possession who were not liable to be sued in regard
to that possession.
It was unnecessary to decide this proposition, as the Court were
unanimous in the opinion that defendants had a good title in fee
simple which needed no statute of limitation to protect it.
