
    Pownal v. Taylor.
    April, 1839,
    Richmond.
    [34 Am. Dec. 725.]
    (Absent Parker and Brooke, J.)
    Conveyance — Consideration — Support ot Grantor— Case at Bar. — The owner of a tract of land conveys it to his nephew in fee, subj ect to the maintenance and support of the grantor and Ms sister. The deed contains a covenant fay the grantee for such maintenance and support, and declares that the land is to fae faound therefor, into whose hands soever it may come. But the deed does not state that it is upon condition that such maintenance and support fae furnished, nor is there any clause providing for a reentry fay the grantor. Held. the provision for maintenance andsupport constitutes merely a charge upon the estate, which may fae enforced in equity, not a condition for '•’‘breach of which the grantor can reenter as of his former legal estate.
    Special Verdict — When Aided by Clerk’s Certificate-Case at Bar. —A special verdict finds that a person having an estate in land, conveyed the same!by deed of trust of a particular date, which deed it finds was duly recorded, and sets forth the same in h<cc verba. The action being eiectment fay a plaintiif claiming under the grantee, against a defendant claiming under the grantor, it is material that the deed of trust should have been recorded prior to the other conveyance. Upon the deed of trust so found in hasc verba, there is endorsed a certificate of the clerk of the county court, that on a specified day (which in fact is the day the deed was made) the same was presented in the office, acknowledged fay all the parties, and admitted to record. Held, although, upon the finding alone, there might have been doubt as to the time of the recording, yet the clerk's certificate upon the deed may properly be looked to for the purpose of removing that doubt, and does effectually remove it.
    Adverse Possession — Conveyance by Trustee — Case at Bar. — Atter a deed of trust upon land is made and recorded, the land is conveyed by the grantor, and then by his alienee to another. Whereupon the first grantor removes from the land, and the last alienee removes to it. While this last alienee is residing on the land, the trustee in the deed of trust goes upon it. sells it according to the provisions of the trust, and conveys it to the purchaser. In ejectment by the purchaser from the trustee against the purchaser under the grantor, a special verdict finds the facts before stated, but does not find that, at the time of the conveyance by the trustee, there was adverse possession. Held, the conveyance by the trustee is valid.
    Ejectment, in the circuit court of Hampshire, in the name of Richard Goodtitle lessee of Thomas Taylor against John J. Pownal. A special verdict was returned, whereby the jury found—
    1. That John Pownal senior was the owner of the tract of land in controversy, and being seized thereof in fee, on the 7th of March 1817 conveyed it by deed to John Pownal junior of George, who resided upon the land, as did the grantor; which deed was duly recorded. The deed was then found in haec verba. The parties are John Pownal senior and John Pownal junior, the son of George. It recites that it has been agreed between the parties, the said John Pownal senior being old, *and he and his sister, who have all along lived together, not being now well and able to attend to the concerns of a farm, that the said John Pownal senior, as well to secure a maintenance, free from labour and anxiety, to himself and his said sister Elizabeth, as to bestow his charity upon the said John Pownal junior his nephew, and to make him his heir, shall convey all his property both real and personal to the said John Pownal junior, except so much thereof as shall amount to the sum of 70 pounds, which the said John Pownal senior intends to keep to be at his own disposal, and the said John Pownal junior of George hath agreed to maintain and comfortably support the said John Pownal senior and his said sister Elizabeth Pownal, in meat, drink, washing, lodging, and clothing suitable for persons of their time of life, also to take care and provide for them every thing necessary when sick, with proper nursing and attendance, medicine &c. and to furnish them each with a horse suitable for them to ride whenever they wish to ride out or abroad, and also they are to have the use of the negro boy now belonging to said John Pownal senior, to wait upon them and make their fire, and do for them other necessary things. And then the deed witnesses that the said John Pow-nal senior, in consideration of the premises, and in further consideration of love and affection, hath granted, bargained and conveyed, and by these presents doth grant, bargain and convey unto said John Pownal junior the said tract of land, and also all the personal estate of said John Pownal senior of every kind, except to the amount of 70 pounds Virginia currency, which the said John Pownal senior reserves to be at his own disposal hereafter, by will or otherwise; habendum to John Pownal junior, his heirs and assigns forever, “subject nevertheless to the said maintenance an,d support of said John Pownal senior and Elizabeth his sister, during their natural lives, as herein before mentioned, and as shall further be herein after mentioned.” *Then follow these clauses: “And the said John Pownal junior, on his part, doth covenant and promise to and with the said John Pownal senior, that he will well and truly support, maintain and provide for the said John Pownal senior and Elizabeth his sister, in good and sufficient meat, drink, washing and lodging, and decent clothing, so as to keep them in every respect in ease and comfort, as far as it is possible, and as far as their health or constitution may require, and also to nurse and take care of them when sick, with all proper tenderness and attendance, medicine and medical aid, if necessary. Their clothing is to be decent, and the said John Pownal senior and Elizabeth Pownal are to have the negro boy Dave to wait upon and make fires for them, and otherwise attend them as they may wish. The said John Pownal junior is also to furnish the said John Pownal senior and Elizabeth Pownal with suitable horse creatures to ride whenever they may choose. And should the said John Pownal senior depart this life before the said Elizabeth Pownal, the said Elizabeth is to have full liberty to live wherever she may think fit, and said John Pownal junior is still to support her as aforesaid in all respects. And should the said John Pownal junior depart this life before both or either the said John Pownal senior or Elizabeth his sister, then the heirs and executors of said John Pownal junior to be bound for the performance. And the said land and personal property is bound therefor, into whosesoever hands it may come. It is also bound now in the hands of the said John Pownal junior. But in all other respects, and after the decease of said John Pownal senior and Elizabeth Pownal, the said John Pownal junior is to have and hold the said lands and property to him, his heirs and assigns, free from the claim or claims of all persons whatsoever forever.”
    2. That John Pownal of George, while so residing on the land, conveyed the same to Asa Everett, as trustee *for the use of the lessor of the plaintiff, by deed of bargain and sale dated the 4th of October 182S, which deed the jury also find was duly recorded, and set forth the same in hasc verba. It is upon trust that if the said John Pownal shall fail to pay and satisfy the sum of 350 dollars which" he is indebted to Taylor, and the interest thereon, in twenty days after the date of the deed, Everett shall sell publicly, for ready money, the lands and goods conveyed, after advertising the same for ten days at the courthouse door in Romney. . Endorsed on the deed is a certificate in these words : “Hampshire county, to wit: Be it remembered that on the 4th day of October 1825, this indenture was presented in the office, acknowledged by all the parties thereto, and admitted to record. Teste, John B. White, C. H. C.”
    3. That John Pownal of George conveyed the land to John Pownal senior by deed of bargain and sale dated the 16th of December 1825, which deed the jury also find was duly recorded, and set forth the same in hsec verba. After reciting the conveyance of the 7th of March 1817, and the consideration thereof, it proceeds as follows : “But from events unpropitious to said John Pownal the son of George, and unforeseen misfortunes, the said John son of George now finds himself no longer in condition to comply with his undertaking in said deed mentioned or to support or accommodate the said John Pow-nal senior and his said sister, who are old and incapable of maintaining and supporting themselves ; and it being reasonable that the means of their support, to which they are justly entitled, should be given back again to the said John Pownal senior, and the said John Pownal senior having agreed, should this be done by the said John Pownal of George, that he will relieve the said John Pownal of George from all further liability and responsibility on that account” — thereupon the property is bargained, sold, recon-veyed, released and confirmed by the said John Pownal of George to the said John Pownal senior.
    *4. That John Pownal senior conveyed the same land to John J. Pownal the defendant, by deed dated on the same 16th of December 1825, which deed the jury find was duly recorded, and set forth the same in haec verba. It is substantially like the deed of the 7th of March 1817.
    5. That John J. Pownal, within a month after the conveyance to him, removed to the land and has resided upon it ever since ; and that John Pownal son of George, within a week after said conveyance, removed from the land and has ever since been out of possession.
    6. That John Pownal senior again conveyed the land to John J. Pownal the defendant, by deed dated the 6th of June 1826, which deed the jury find was duly recorded, and set forth the same in haec verba. This deed, for the consideration of 125 dollars, conveys the absolute fee, with a covenant that the grantor has good right to convey.
    7. That Everett the trustee, after having advertised the land for ten days pursuant to the requisitions of the deed to him, went upon the land, and sold the same upon the premises, in the manner prescribed by said deed, at which sale Thomas Taylor, the lessor of the plaintiff, became the purchaser at the price of 40 dollars; that at the time of this sale, John J. Pownal the defendant and John Pownal senior, together with Elizabeth Pownal, who is named in the deed mentioned in the first finding, were residing on the land.
    8. The advertisement is found in haec verba. It mentions that the sale will be on the 10th day of the present month, and is dated June 21, 1826.
    9. That Everett the trustee had no further possession of the land, than as set forth herein, when he went to make the sale ; and that after the sale he left the land, and has not had possession of it since.
    10. That Everett conveyed the land to Thomas Taylor, the lessor of the plaintiff, by deed of bargain and *sale dated the 9th of March 1831, which deed the jury find was duly recorded, and set forth the same in hjec verba. After reciting the deed of trust of the 4th of October 1825, it states that Everett, at the request of Taylor, having advertised the time and place of sale agreeably to the directions of said deed, proceeded to sell the said tract of land and premises to the highest bidder at public auction, when Taylor became the purchaser at the sum of -; and thereupon conveys the said land and premises to the said Taylor.
    11. That John Pownal of George did maintain and provide for John Pownal senior and Elizabeth Pownal, but not in a comfortable manner, or in the manner stipulated by the conveyance of the 7th of March 1817.
    12. That John Pownal senior died between four and five years before the date of the verdict, (which was found the 9th of October 1832,) and that Elizabeth Pownal died three years before the said verdict, and that they resided upon the land with the defendant John J. Pownal until their deaths and were maintained by him.
    If, upon the facts found, the law should be for the plaintiff, the jury find for the plaintiff the land described in the deeds, and one cent damages. If the law should be for the defendant, then they find for the defendant.
    The circuit court, being of opinion that the law was for the plaintiff, gave judgment accordingly ; and to that judgment a super-sedeas was allowed.
    The cause was argued in this court by Johnson for the plaintiff in error, and Eeigh for the defendant in error, upon the following points made by the former :
    1. That the grant of 1817, if it operated to convey the legal title to the grantee at all, conveyed that legal title upon the express condition of support, maintenance and care, the failure to render which was at common law a breach of the condition, for which the grantor might reenter upon the estate. The breach found by *the jury, therefore, justified the entry of John Pow-nal senior, and the reconveyance by John Pownal junior was equivalent to such entry, and operated to confirm the estate in fee in John Pownal senior, so as to revest him of his original right and avoid the mesne in-cumbrance.
    2. That the conveyance to Everett is void as to John Pownal senior, and the plaintiff in error as claiming under him, because it is in violation and fraud of the provisions of the original grant, and because it is not found by the jury to have been recorded before the reconveyance to John Pownal senior, and neither he nor the plaintiff in error is proved to have had notice of it.
    3. That at the date of the conveyance to the lessor of the plaintiff, the plaintiff in error was in the actual adversary possession of the land, and the trustee out of possession, so that nothing would pass by that deed.
    In the argument of these points, the following authorities were referred to : On the first, Bach. Abr. title Conditions, letters A and B. On the second, Taylor v. King, 6 Munf. 3S8, and Harris v. Harris, 6 Munf. 367. On the third, Baird v. Tabb, 3 Call 47S ; Birthright lessee of Hall v. Hall, 3 Munf. 536 ; Rowletts v. Daniel, 4 Munf. 473, and Newman v. Chapman, 2 Rand. 93.
    
      
       He decided the cause in the court below.
    
    
      
      Conveyance — Consideration—Support of Grantor.— The principal case is cited in Lowman v. Crawford, 99 Va. 692, 40 S. E. Rep. 17 ; Bates v. Swiger, 40 W. Va. 426, 21 S. E. Rep. 876.
      See monographic note on “Deeds” appended to Fiott v. Com., 12 Gratt. 564.
      A reservation or charge upon land, in a convey-anee, for maintenance for life, is valid though no amount be fixed. Bates v. Swiger, 40 W. Va. 426, 21 S. E. Rep. 876. citing the principal case ; Brawley v. Catron, 8 Leigh 622.
    
    
      
       Adverse Possession — Principal Case Distinguished.— In Layne v. Norris, 16 Gratt. 243, the court refers to and distinguishes the principal case ; Williams v. Snidow, 4 Leigh 14 ; Purcell v. Wilson, 4 Gratt. 16, in the following language : “These cases,” said the court, “depend on this principle ; that a possession not adversary in its commencement will be presumed not to be adversary in its continuance, unless and until the presumption be repelled, by proof that the party in possession claimed to hold adversely to the other party and with his knowledge. But the principle does not apply to this case. ”
      Trustee — Title of under Deed of Trust. — The principal case is cited in Sulphur Mines Co. y. Thompson, 93 Va. 316, 25 S. E. Rep. 232. for the proposition that the trustee in a deed of trust takes a legal, though a defensible title, and a deed from him to a purchaser conveys an absolute estate in a court of law, whether the conditions of the trust deed have been complied with or not. though a different rule prevails in a court of equity. See Taylor v. King, 6 Munf. 358 ; Harris v. Harris, 6 Munf. 367.
    
   STANARD, J.

The deed from John Dow-nal senior to his nephew John conveyed the land therein mentioned to the grantee, and the provision of that deed by which it is declared that the property thereby conveyed should be subject nevertheless to the maintenance of the grantor and his sister Elizabeth, did not operate as a condition under which the grantor could, on the failure of the grantee to furnish the maintenance which he had stipulated to furnish to the grantor and his sister, lawfully reenter on the land and reinvest in himself the legal title therein. This and other provisions of the deed import no more than that the property should be and remain charged as a security for the due performance of the *grantee’s covenant to furnish maintenance. Such is the only rational interpretation of the provision that the property should be subject to the maintenance and support, and bound therefor, into whomsoever hands it might come. Such language imports a lien on property in the hands of the grantee aud his assigns, not a condition by which the title to that property is to be extinguished, and with it the lien thereon.

The special verdict finds that the deed of trust of the 4th of October 1825, from John Pownal junior to Everett, was duly recorded, but does not specify the time of recording ; and it is objected that as the statute does not prescribe any time for the recording of such instruments, but deprives them of efficacy against creditors and subsequent purchasers without notice until recorded, no sufficient title is shewn under that deed to overreach the rights derived under the subsequent deeds of John Pownal junior and John Pownal senior. The jury having found that the deed was duly recorded, in a case in which the antagonist title depends on a subsequent conveyance from the same grantor, the argument is very strong to support the proposition that the necessary in-tendment from such a finding, or rather that the only interpretation of such a finding, is that the recording took place before the subsequent deed was executed ; that the recording found by the jury of this deed must be considered as found in relation to the hostile claim asserted under the subsequent deed, and that the only sense in which it could be duly recorded in respect to the subsequent conveyance is, that it has all the efficacy in respect to the subsequent conveyance that could be derived from recording it. I however give no final opinion on this point. The most that could be made out of the objection would be to render the verdict in this respect ambiguous, and a venire de novo necessary. But this result ought not to take place here. The jury find the deed in isc verba, and it appears that the deed so *found, and in evidence before the jury, has on it the clerk’s official certificate of the fact and time of recording. I see no valid objection to a reference by the court below, or by this court, to that certificate, to ascertain the date of the recording of the deed, for the purpose of removing the ambiguity, if any, which the finding that the deed was duly recorded leaves in respect to the date of the recording.

It is objected that the conveyance made by Everett to the purchaser at the sale under the deed of trust is nugatory, because the land at the date of the conveyance was in the possession of the grantee of John Pownal senior, and such possession, it is contended, was adverse, and disabled the party out of possession from conveying'. The effect of this objection, if available, is not to protect any right shewn to be in the objector, but to disable the party having the title from conveying it. It should therefore distinctly appear to be warranted by the finding of the jury. It is a sufficient answer to this objection to say that the verdict does not find that the possession of the plaintiff in error was an adverse possession. His possession simply is found, and it is not fit that he should be allowed to say that the act which may be rightful, and is not found to be otherwise by the verdict of the jury, is tortious, for the purpose of frustrating the otherwise effectual conveyance of the party having title. The most that can be said is, that on the facts found, the jury might have found the possession to be adverse. This however has not been done, and it is at least problematical whether it ought to have been done. The possession of John Pownal junior after the deed of trust was not tortious, nor could he have alleged it to be so, to disqualify the trustee from conveying. He was tenant at sufferance, and his possession was consistent with the right conveyed by the deed of trust. The possession of those coming in under him with notice of the deed of trust, was impressed with the ‘same attributes, and had the.jury been asked to find expressly that their possession was adverse, it would have been indispensable to shew that that possession was obtained without notice of the deed of trust. Newman v. Chapman, 2 Rand. 93. Even this fact of want of notice is not found, if it could properly have been found in the face of the fact that the deed of trust had been duly recorded some weeks before the subsequent conveyances were executed. The entry of Everett to make the sale does not appear by the verdict to have been opposed, nor his title to make it controverted, by the occupants of the land, and their possession thereof is not found to be adverse, or in hostility .to the right so asserted and exercised by him. There is no doubt of the correctness of the proposition that though the occupant trace his title to the grantor under whom the plaintiff in ejectment claims, he may shew that his possession is adverse, so as to enable him to take the benefit of the statute of limitations, and, under particular circumstances, to disable the party evicted from conveying. But no such case is found by this verdict, and I am therefore of opinion that the objection to the efficacy of the conveyance from Everett is not well founded.

On the whole, I am of opinion to affirm the judgment of the circuit court, with costs.

CABELE, J., concurred in the opinion that the judgment should be affirmed.

TUCKER, P.

The omission in the special verdict to find expressly on what day the deed of trust was recorded, being obviated by the certificate of the clerk endorsed on the deed, which shews that it was recorded on the day of its date, all other difficulties in the case are easily got over.

Thus, there is nothing, I think, in the position that the provision for support and maintenance constituted *a condition, for the breach of which the grantor might reenter. It was a charge, not a condition. It was a declaration of a beneficial interest or a trust, which might be enforced in equity, but which was perfectly consistent with the existence of the fee in the grantee. The distinction is well understood between a declaration of use and a condition. A feoffment, ea intentione, does not make a condition, unless an express reentry be limited.. It creates a trust or confidence, which may be enforced in equity. 1 Bac. Abr. 631. If it were a condition, the reentry for breach of it would defeat the estate, and with it the charge or beneficial interest. Thus, in the case before us, the land is made subject to the support of the grantor and his sister. She, accordingly, instantly acquired a beneficial interest, which she might have enforced by bill in equity. But if the provision is a condition, then, for the breach, the grantor might reenter, defeat the estate, reinvest himself with his original title, and annihilate the vested interest which had been by his own solemn act conferred upon Elizabeth his sister. This cannot be, unless the grantor had expressly reserved the right to reenter, upon failure of the grantee to ful-fil the purposes of the grant.

The second position of the counsel is not more tenable. The deed of trust was no violation of the provisions of the grant. It was in subordination to them, and the creditor, and all persons claiming under his deed of trust, took subject to the charge or incum-brance created for the support of the grantor and his sister. And even were it otherwise, the legal title passed by the deed, and the remedy was only in equity. Taylor v. King, 6 Munf. 358 ; Harris v. Harris, 6 Munf. 367.

The next objection is that the deed of Asa Everett the trustee was inoperative, by reason of the adverse possession of the defendant. The fallacy of this position is obvious. John Pownal senior had conveyed to his *nephew, subject to a charge declared upon the face of the deed. The nephew, thus invested with the fee, incumbers it with a deed of trust, which is of course subordinate to the prior charge. He then reconveys to John Pownal senior, who, having constructive notice of the trust, takes subject to it. He then conveys the estate, thus subject to the .trust, to John J. Pownal the defendant, who in like manner takes subject to the trust. The trustee entered and sold without objection, and when he so entered, the possession must be adjudged to have been in him. Hob. 322; Litt. § 701. _ The possession of the defendant could not be adverse. He was but the purchaser of the equity of redemption. He had purchased with notice of the trust, and therefore subject to it. The possession of his grantor was the possession of the trustee, as they stood in the relation of mortgagor and mortgagee. He must therefore be taken to hold the possession, as his grantor held it, for the mortgagee. Having but an equity, he will not be taken to hold adversely without some tortious act, and none such appears. His possession was consistent'with the credit- or’s title. I am aware of no case in which it has been held that the right of a creditor by deed of trust to enforce his lien by sale, has been defeated by a conveyance to a purchaser of the equity of redemption, with full notice of the previous trust. On this ground, I am of opinion that the deed of the trustee was operative and valid ; and I prefer to rest the case on this principle, without resorting to others upon which it might be sustained. It may be remarked, however, that as the jury have not expressly found an adverse possession, the court cannot infer it. Taylor v. Horde, 1 Burr. 113 ; Hall v. Hall, 3 Munf. 536. To presume it, would be to presume, without evidence, that the defendant had committed a wrong ; and this too for the purpose of defeating the legitimate exercise, by the lawful owner, of that most essential right of '^'property, the power of alienation. The utmost strictness in the finding should always be required of him who desires to defeat his adversary’s just rights, merely by proof of his own tort. See Wheaton’s Selw. N. P. 553.

I am of opinion to affirm the judgment.

Judgment affirmed.  