
    Jackson, ex dem. Trowbridge, and Wife, against Dunsbagh and Dunsbagh.
    The- rulé, that an éstate óf freehold Cannot he made to commence irí futuro', is only applicable to those common law assurances which- operate by trans-" ' mutation of possession, and does not embrace such as are effectuated by transmutation- of a use unless with, warranty. Per Lewi's, J. ■*
    In the construction of deeds the intent of the parties shall, if possible, he carried into effect. . Per Lewis, J. and Lansing, Ch. J. ‘
    Several-instruments or deeds-of the same date, between the same parties, and relating .to the same subject, may be construed as parts of one assurance.
    A deed from a father to his son, in consideration of 10 shillings, was held to be a covenant to stand seised to the use-of the grantee. /
    A pecuniary consideration in a deed is. sufficient to. raise a'use by way of covenant to stand seised: '•Per Lewis,,-3...
    
    The reason of the English rule, that no consideration but those of blood and marriage, are sufficient for that purpose rests upon the English statute-of ■ enrolments, P7 Hen. 8, ch. I§. Per Lewis, 3".
    
    This was an action of ejectment, forlahds iriGermantpwn, in the county of Columbia. The cause was tried before Mr.. Chief Justice Yates; at the Columbia circuit, in October, 1795. A special .verdict was found, which contained the following facts:
    1. That Jost Hendrick Dunsbagh,'by indenture made the. 27th May, 1754,.. between him and Philip Dunsbagh, for the consideration of 10 shillings,; granted,' bargained and 'sold, &.c. to Philip Dunsbagh the premises in question, after the decease of the said Jost; to have and to hold the premises to the said Philip, his heirs and assigns- for ever, after the decease of the said Jost. This indenture contained covenants, that the grantor 'was the owner of the.premises, arid was rightfully seised of a good estate in the same, and that the grantor had- full power to grant, bargain' &c. the premises, to the said Philip, his heirs and assigns for ever, after the decease of the said JoSt, and also that Philip, his heirs [*92] and assigns, ^should at all times thereafter peaceably and quietly havé, hold, &c. the premises; and a cove- " nant for further assurance.
    
      2- On the said 27th of May, 1754, certain articles of agreement in writing were made and executed between the said Jost and the said Philip, wherein Philip is named as his son, and whereby the said Jost, “ for divers good causes and considerations him thereunto moving, did give and grant unto his son Philip, and to his heirs and assigns forever, the one full half part of his mill, and also the full half part of all the yearly income of the said mill, during the natural life of the said Jost, to the only proper use and behoof of the said Philip,.his heirs and assigns forever, as might more fully appear by a pair of indentures, bearing even date. And it was further agreed by the same instrument sealed, that if the said Philip should come to marry, then and in such case, the said Philip should have the half of ah the growing produce of the said Jost’s farm, which should be equally divided between the parties, yearly and every year, during the life of the said Jost, and after his decease, the said lands and farm (which were the premises in question) should be and remain in full, with all the yearly incomes, unto the said Philip, and to his heirs and assigns forever, as might more fully appear by a pair of indentures thereof, bearing even date. But iii case the said Philip should not marry, then he should have no more than the third part of the yearly incomes of the said land,, or farm, during the Life of the said Jost, and after his decease, the said lands or farm (the premises in question) should be and remain in full unto the said Philip, his heirs and assigns for ever f for the performance of which, each bound himself to the other in the sum of 200 pounds.
    3. That the said Philip was, at the time of the execution of the several instruments aforesaid, the only son of the said Jost. ■
    4. That the said Philip, oil the 19th day of September,. 1754, made his last will and testament, in due form of
    * law, and thereby gave unto his sister, Catharine [*93] Dunsbagh, and her heir^and assigns forever, “ all his lands that he had lying in the camp, within a certain patent of 6000 acres, as might more fully appear by a certain deed thereof, dated the 27th of May, 1754 (and which were the premises in question.)
    
      5. That Philip departed this life on the 10th day of Qcto- " her, 1754, without issue.
    6. That Catharine Dunsbagh, named in the said last will • and testament, intermarried with Hendrick Botts, and by him had issue Margaret, one of the lessors of the plaintiff, and who was her only child.
    7. That Hendrick Botts and. Catharine his wife, departed this life in the month of October, 1755.
    8/ That the said Margaret, one of the lessors, was at the time of bringing this action, and before, intermarried with Trowbridge, the other lessor of the plaintiff. ' •
    9. That Philip, in his lifetime, after the execution of the said first mentioned deed and until the day of his death,- lived on the said premises in the said deed mentioned, in the family-of the said- dost, and during the said period, attended the said grist-mill Upon the premises aforesaid, and cultivated the said lands in the said deed mentioned, together with the said dost.
    1(1. That the said dost remained in possession of the said premises, from the time of the execution of the first mentioned deed, until the time of his death, which'was -in 1788.
    11. That on the 13th of November; 1765, certain indentures were made and executed, by and between the said dost and dacob Blatner, whereby for securing the payment-of a sum of money, the aforesaid premises were mortgaged to the said Blatner. "
    12. That on the 7th day of March, 1785, dost made his' last will and testament, in due form of law", and. thereby devised the premises aforesaid to dohn Dunsbagh and Philip
    1 Dunsbagh, the above defendants.
    [*94] *But whether, upon the' whole matter the defendants were guilty, the jurors were ignorant, arid prayed the advice of the court,- &c.
    Spencer, for the plaintiff. ‘
    Gilbert, for the defendant.
   Lewis, J.

The questions arising on this special verdict, are.

;1: Did Philipj the son of dost Hendrick Dunsbagh, unde r whom the lessors of the plaintiff claim, derive any title to the premises in question, under the conveyance of the 27th of May, 1754. If not,

2. Did he derive any title under the articles of agreement of the same date, taken either separately, or in connection with the said conveyance, as constituting separate parts of one agreement?

The consideration in what I shall call the first deed, (as the other refers to it,) is pecuniary, in that of the second it is general, and Philip is called in the deed the son of dost.

For the plaintiff it is contended, that the two instruments must be taken in connection, and the consideration be thus by implication, as well consanguineous, as pecuniary, and that so a use will arise to Philip, to be served out of the seisin of dost, by way of a covenant to stand seised.

Whether Philip derived any interest from the first deed, considered independently of the second, and operating as a bargain and sale, or from the second deed independent of the first, or whether a covenant to stand seised can be supported by a pecuniary consideration, were points not raised for o indecisión.

For the defendant it was insisted, that the first deed created a freehold to commence in futuro, and was, therefore, inoperative ; that the two instruments ought not to be taken iii connection, the first being complete without the aid of the second ; that should they be so taken, there being an express consideration, no other can be raised by implication ; and that should they be construed as constituting a covenant to stand seised, still the use to Philip was #never [*95] executed, the seisin out of which it was to arise, having been destroyed by the mortgage to Blatner.

It is undoubtedly a rule of law, that an estate of freehold cannot be made to commence in futuro, But this rule is only applicable to those common law assurances, which operate by transmutation of possession. It does not embrace such as are effectuated by transmutation of a use, unless with warranty. It is also a rule, that in the construction of deeds, the intent of the parties shall, if possible be carried into effect: the meaning of which is, that where it. shall appear to be the intent of the parties, that the lands shall pass, "the mode or form of conveyance is not material, but the intent shall be effectuated by every legal means. In the present instance, thé intent of the parties evidently was, that Philip, should have one-half of the mill and of its product,, with one-third of the farm (or the premises ill question) to be increased to one-half (in the event of his marriage) during the life of his father, with a remainder in fee in the premises, expectant on his death. If, thén, by any legal construction of these instruments, this intent can be carried into effect, it ought to be done. On the authority of the case of Taylor, ex dent. Alley v, v. Horde, (1 Burr. 69,) I think the .two instruments may be taken in connection, as forming together the several parts of one agreement.' They bear the same date, are consistent, and between the same parties, relate to the same property, and are manifestly parts of one agreement executed by different instruments. But where is the advantage to the plaintiff from such connection ? The implied consideration cannot be substituted for the express one, or be united with it. The maxim is expressum facit cessare taciturn. (Bedell’s case, 7 Rep. 40; Fox’s case, 8 Rep. 93 b. Harper’s case, 11 Rep. 24 b. Mildmay’s case, 1 Rep. 176 a.) The extent of the rule is to admit of an implied or averred consideration, only where the consideration' is general or altogether omitted, I shall consider these instruments separate, and am of opinion, that under either of them the lessors of the plaintiff derive a good title.

[*96] ^Construing the first deed as a bargain and sale, of which it certainly contains all the requisites, I am inclined to think it effective of the-intent of the parties. The operation of this species of conveyance is that the bargainor on the execution of the deed, stands seised to the use of the bargainee ; and though the statute transfers the possession to the Use, still tire bargainee is seised and possessed in such like estate as he had in the use, ~A consequence of this operation is, that a conveyance by bargain and sale to the.use of third persons is not good, because there the use is to be served out,of the seisin of the bargainee, and thus a use would be raised upon a use against the rules of law which require it to be served out of a seisin at common law. But where the use arises and is served out of the seisin of the bargainor, the effect is different. To apply this distinction to the case under consideration : here is a conveyance to the bargainee to take effect at the decease of the bargainor, which creates a resulting use to the latter during life, with a vested use in remainder to the bargainee in fee, both uses being served in succession out of the seisin of the bargainor. An authority to this effect will be found in Sanders on uses and trusts, (Sanders, 133 ; see also Bacon on Uses, 63,) where it is said, that if a man bargains and sells his lands after seven years, the grant is good, and until it takes place the use results.

The next point to be examined is, whether the pecuniary consideration in the first deed, is sufficient to raise a use by way of covenant to stand seised. It has been a general opinion that no considerations but those of blood and marriage are sufficient for that purpose; this appears to me to be an error. It is true, that such is the case in England; but it has been so since the statute of enrolments only, before which time, covenants to stand seised could be raised on pecuniary considerations, The intent of this statute being to restore the notoriety of conveyances, the courts of justice, to forward the views of the legislature, and to prevent evasions of the law, determined that where the consideration of a deed was pecuniary, which was of *a [*97] private or secret nature, it should not take effect as a covenant to stand seised, which did not require enrolment, but as a bargain and sale, which did. Consideration of blood, and of marriage being of a public nature, and always having sufficient notoriety attached to them, did not fall within the same reason, and therefore, were held competent to support a covenant to stand seised. (See Sanders, 434-440.)

The statute of enrolments was never considered as extending to this country, but has always been deemed local, on account of its reference to the courts of Westminster, and to certain officers Unknown to us. The law, therefore, must continue to be here, as it was in England previ ■ ous to that statute, when these distinctions did. not exist; and .thus the first deed will operate as a covenant , to stand seised.

The second deed is free from the objection against the first. The consideration in it being general, and it appearing on the face of the instrument, that the grantee is the son of the grantor, the consideration of blood is raised by implication, according to the authorities above cited, and the terms give and grant being sufficiently operative, this instrument may well enure as a covenant to stand seised.

The objection that the seisin out of -which the use to Philip was to be served was destroyed by the mortgage to Blatner, I consider as invalid. It is founded on the supposition of its being a future, contingent or executory use, and the authority cited from Sanders, 137, relates to such only. But in the present instance, Philip had a use in esse, a vested interest in remainder which could not bg, defeated, and his father had nothing more than a seisin or possession according to his use, which was an interest for life only5 and he could part with no greater estate.in the.premises than he held. But had the use to Philip been a future, springing or- executory use, it would still be doubtful whether the mortgage to Blatner destroyed the seisin out of * which [*98] it was to be served. What species of mortgage deed it was does not appear, nor whether it was in existence and unsatisfied at the death of lost. For if it was not such a deed as operated by transmutation of possession, or by transmutation of a use with warranty, it would not work a discontinuance, and a fortiori would not destroy a seisin at common law; and if it was discharged, lost would have been re-seised according to the old use.

My opinion therefore is, that the postea be delivered, to the plaintiff.

Benson, J., concurred.

Lansing, Oh. J.

I concur in the opinion given‘by my brother Lewis. The original transaction between the parties presents them in the relation of father and son, disposed to make a settlement of the father’s estate, to answer the exigencies and views of both. On the same day, and in pursuance of the same intent, the parties executed three distinct instruments, relative to the same subject matter. The business was inartificially conducted; but the intent is sufficiently evident. If these instruments be taken collectively, the distinction between a valuable and pecuniary consideration fails in its application. In this view of the subject, I have no doubt that the plaintiff is entitled to recover.

Kent, J., and Radcliff, J„. not having heard the argument in the cause, gave no opinion.

Judgment for the plaintiff.- 
      
       27 Henry VIII. ,ch. 16,
     
      
      
        , It is said by Chancellor Kent, that no use can be raised for any purpose by a conveyance to stand seised to uses in favor of a person not within the influence of the domestic considerations» and that it can only be made use of among near domestic relation? for it must be founded on the consideration of bjood or. marriage. Commentaries, vol. iv. 493, and Mr. Hilliard, in his Abridgment of the American Law of Real Property, vol. 2, p. 326, pi. 38, states these to be the only considerations. The same opinion is expressed by the Chancellor in Jackson v. Sebring, 16 Johns. R. 515, 528, 529. And see Jackson v. Cadwell, 1 Cow.en, 622, per Savage, Ch. J. 643 ; also Jackson v. Delancey, 4 Cowen, 427, per Savage, Ch. J; 431. It is worthy of note., however, that all the authorities referred to in support of this position are subsequent to the statute of enrolments, 27 Henry VIII. ch. 16, and that in the .ease of Jackson v. Sebring, there was no consideration either pecuniary or from domestic relationship. The English authorities proceed upon that statute and the reason is given in Cruise (Dig. vol. 4, p. 188,'s. 12,) viz.; that a covenant to .stand seised being a conveyance of a private nature, and valid without ¡enrolment, ¡¡t #s absolutely necessary, that the consideration be either affection to a near relation or marriage; but the English statute not having been reenacted here, this reason fails in its application. See further upon this subject, Rogers v. The Eagle Fire Ins. Co., 9 Wend. 611, per Walworth, Chancellor, at p. 626.
      In New York the statute of uses is abolished, but no mention is made of covenants to stand seised. The Revised Statutes (vol. 1, 738,) have given *0 all deeds of .conveyance of the inheritance or freehold the denomination of grants, and if a covenant to stand seised should be founded on the requisite considerations it would be good as a grant, 4 Kent Com. 493, and subject of .course to the general rul.es applicable to other conveyances.
     
      
       The general rule is well settled that when two deeds are executed between the same parties, at the same time and respecting the same subject matter, they will be construed together as forming but one instrument. Starr 
        v. Tift, 15 Johns. R. 458. See also 2 Co wen, 218. Watson v. M'Kinney, 3 Wend. 233. King v. King, 7 Mass. R..496, 499. Clap v. Draper, 4 id. 266. See also, Holbrook v. Finney, id. 596. Bridge v. Wellington, 1 id. 219. And see, Stocking v. Fairchild, 5 Pick. 181.
     