
    Jackson, etc dem. Abraham Houseman, and others, Plaintiffs in Error, against Jacob L, Sebring and Thomas Carpenter, Defendants in Error.
    
      H. a mar* ed woman, be* mg seised m iands, joined husband! she ^fherimd for diver’s irgair sold, &c. to Z). if» efrimovav » ^ichpremg^ wished to setfier thereinafmentioned; they, therederation 'o/oie other and consist £”’^ted’ fa stranger,) his. heirs and yerf all, &c. tmidth^same" /olnt’Ves4of imsband! and thePren°s4and crse^he^hus1 band should die leaving her . surviving, (hen to convey the but in case B. should die, without lawful issue, leaving her husband surviving, then in trust to convey the premises to her said husband and tohev mother, in foe. simple, &c. JO. covenanting to perform the trusts. H. died without lawful issue, leaving her husband and mother surviving to whom JO. soon after, conveyed the premises, in pursuance of the trust. °
    
    
      Held, that the deed from H. and her husband to I). was void, as a bargain and sale, for want of . a pecuniary consideration; and that it could not operate as a covenant to stand seised to the uses expressed ip the deed, because D. being a stranger, there was no consideration of blood or marriage between him and H., the grantor. No use can be raised oa a covenant to stand seised ip favour of a stranger, and not of the blood of the covenantor; and though the covenaptee is a mere, trustee for the relations of the covenantor, it maltes no difference.
    THIS was an action of ejectment brought in the Supreme p Tr T Court, to recover a lot or land in the city of JVew-io?'/c* The cause was tried at the New-York sittings, before the late' Chief Justice, in April 1816. The speciál verdict stated the following facts : Andrew Hunt and Rachel his wife, in James Davidson of the second part, as follows : “ Whereas, ner hereinafter mentioned: Now, therefore, this indenture v J J right of the wife, being seised of the premises in question and other real estate, which came to Rachel from her father, John Houseman, deceased, who had acquired the same by purchase, on the 28th oí September, 1805, executed a certain deed or indenture between them of the first part, and the said Rachel has inherited the lands and real estates hereinafter mentioned, which she wishes to be settled, in the man- . witnesseth, that, in consideration of the premises, and for divers other good causes and considerations, the said parties of the first part have granted, bargained, sold, aliened, enfeoffed, conveyed, and confirmed, and by these presents, do grant, bargain, sell, aliene, enfeoff, convey, and confirm unto the said James Davidson, his heirs, and assigns, for ever, all and singular, &c. (describing the property conveyed, including the premises in question,) to have and to hold ’ CI i
    
    
      all and singular the said several houses, lots of ground, and premises, &c. unto the said James Davidson, his heirs and assigns, to his and their only proper use, benefit, and behoof, for ever: in trust, nevertheless, to and for, and upon the several trusts, hereinafter mentioned and declared, that is to say . in ¿rtíst, in the first place, to hold the same during the joint lives of the said parties of the first part, and to pay the rents and profits thereof to, the said parties of the first part, during their joint lives ; and incase the said Andrew Hunt shall die leaving the said Rachel surviving him, then upon the further trust, from and as soon as conveniently may be after his decease, to grant and convey all and singular, the houses, &c. to the said Rachel, in fee simple ; but in case the said Rachel shall die, without lawful issue, leaving the said Andrew surviving her, then, .upon the further trust, to grant and convey all and singular the houses, lots of ground, and premises, hereby granted to the said Andrew, and Mary Houseman, the mother of the said Rachel, in fee simple, as tenants in common ; but if the said Mary Houseman shall be dead, at the time of the decease of the said Rachel, without lawful issue, leaving the said Andrew surviving her; then, upon the further trust, to grant and convey the said several houses, &c. to the said Andrew Hunt and William Houseman, the uncle of the said Rachel, as tenants in common, in fee simple ; and the said James Davidson, doth by these presents, accept the conveyance in trust, as aforesaid, and doth hereby covenant, and grant to, and with the said Andrew Hunt, his executors, administrators and assigns, well and faithfully to perform the trusts herein above declared, he being well and sufficiently indemnified and saved harmless of, from, and against all costs, charges and expenses, which he, the said James, shall or may be put to, by reason or on account of the same. In witness, &c.
    This deed was duly executed and acknowledged by the parties. At the time of its'execution, Rachel Hunt was sick of the yellow fever, and died, on the 29th of September, the day following, without issue. »
    Afterwards, on the 4th of October, 1805, James Davidson, in pursuance' of the trusts declared in the said deed, granted and conveyed the real estate therein described, and the premises in question, to Andrew Hunt, the husl and, and to Mary Houseman, the mother of the said Rachel, as tenants in common, in fee simple, who continued to hold the same, as tenants in common, until the 17th oí December, 1805, when a partition thereof was made between them, and the premises in question, on that partition, were released and conveyed by the said Andrew Hunt, to Mary Houseman, her heirs and assigns, in severalty. The defendants in this cause, who were in possession of the premises at the commencement of the suit, derived their title from Mary Houseman. The lessors of the plaintiff, being the children of William Houseman, the uncle of Rachel Hunt, are the only heirs at law of the said Rachel.
    
    In October term, 1817, the Supreme Court, after argument of the cause on a case containing the facts as above stated, gave judgment for the defendants; to reverse which judgment, a writ of error was brought, returnable to this court.
    The reasons for the judgment of the-Supreme Court were assigned by Mr. Chief Justice Spencer, who read the same from the manuscript notes of the late chief justice,
      
       as follows : “ This was a deed in trust, for certain uses therein expressed, and is without any pecuniary consideration. It was, however, contended, on the part of the defendants, that it was good and sufficient as a covenant to stand seised to the uses specified. The first trust was for the use of the grantors during their joint lives ; and if Andrew Hunt should die, leaving his wife surviving him, then to reconvey the same to Rachel; and in case Rachel should die without issue, leaving Andrew surviving, then, to grant and convey the lands to Andrew Hunt and Mary Houseman, the mother of Rachel, in fee simple, as tenants in common. That event occurred, and Davidson has executed the trust, and conveyed the premises to Andrew Hunt and Mary HousemanM
    
    “ It is evident that this deed cannot operate as a bargain and sale, because there is no pecuniary consideration. If it is operative at all, it must be as a covenant to stand seised. It is, in form, a bargain and sale ; but this, according to the cases, does not prevent its being a covenant to stand seised, if it contains all the requisites of such conveyance. The great and leading requisite is the consideration of blood and marriage; and it need not appear, in form, to be the consideration expressed; if that appear from the deed, it is enough. In this case, Davidson was made the grantee : he was so, because the deed was in form a bargain and sale ; and the great objection raised to the deed was, that Davidson was a stranger, and so there was not the requisite consideration of blood, to make the deed operate as a covenant to stand seised. Yet Davidson did not; according to the terms of the deed, receive any beneficial interest under the conveyance. He was merely made use of as the conduit or instrument, through which the beneficial interest was to flow to others. Suppose this deed had been, in form, a covenant to stand seised to the uses therein described. Davidson would be the covenantee, and his being a stranger would be no objection to the deed. The very precedent of such a covenant is given in the last chapter of Sanders on Uses and Trusts ; the covenantee'there was a stranger ; and in that chapter of the work of Sanders, all the principles which have been suggested will be found to be supported. There certainly appears to be some little confusion in the books on this subject.” •“ The cases of Garnish v. Wentworth, (Carter, 137 ) Saman v. Jones, (2 Ventris, 318.) and Hore v. Dix, {Sid. 25.) would seem to contain principles rather in hostility with this deed. But the authority of those cases is much shaken by the case of Doe v. Sulkeld, {Wils. 677.) and that of Rose v. Vroman. (2 Wils. 75.) Willes, „Ch. J. on referring to those cases, seems to consider them unintelligible, and much questions their authority. They certainly appear against the spirit and tenor of most of the other cases on this point. The case of Thorne v. Thorne, (1 Vernon, 141.) is much in point, so far as it can be collected from the imperfect report of the case ; and it appears to me, from an examination of the cases, that this deed contains all the essential requisites of a covenant to stand seised to the uses described. Although, in form, a bargain and sale, it has all the words necessary for a covenant to stand seised. The word £‘ grant,” is enough. Though the consideration of blood or marriage is not expressly alleged, that is to be collected from the deed. Though the grantee is a stranger, no beneficial interest is given to him. He is a mere instrument to convey the premises to the uses specified. We were, accordingly, of opinion, that the defendants wete entitled to judgment.”
    
      Foot, for the plaintiffs in error, contended,
    1. That the deed of the 29th of September, 1805, was, in its nature, testamentary. The clear intention, deducible from the circumstances under which the deed was executed, and from the recital in it, was to enable Mrs. Hunt, a married woman, to devise her real estate. It is, in substance, a will, made by. a feme covert, and, therefore, void by the statute. (1 N. R. L. 365. sess. 36 ch. 23. s. 5.) A deed takes effect immediately, and the property becomes vested in the grantee. A devise is a disposition of property, to take effect after the death of the testator. In England, a married woman can convey her estate by fine only. Here she can only convey by a deed duly executed, and acknowledged before a judge or public officer, in the form and manner prescribed by statute. No particular form of words is necessary to constitute a devise. (Habergham v. Vincent, 2 Vesey, jun. 204. Cruise's Dig. tit. 38. ch. 9. s. 3—9) A deed poll, intended to operate after the testator’s death, was held to be testamentary; and though void, as to thé freehold, for want of three witnesses, it passed the copyhold or personal éstate. (Finch’s Rep. 195. 1 Mod. 117. 3 P. Wms. 27. 3 Keble, 310.) Though an instrument be executed and delivered as a deed, yet if it is in the nature of a testament, it will be deemed a testament, and not a deed. The joining of the husband in the deed, or his consent to his wife’s disposing of her estate, cannot vary the case. He can give her no power to devise her lands, to the prejudice of the heir at law. (Cruise's Dig. tit. 38. ch. 4. s. 6. Ambler, 627.) 2. If the deed to D., the trustee, is operative at all, it must be either as a bargain and sale, or as a covenant to s.t-and seised te uses. It clearly is not good as a bargain and sale, for there is no pecuniary or valuable consideration sufficient to raise a use. Natural affection is not a sufficient consideration to support a bargain and sale. (CVo. Jac. 127. Scudamore v. Crossing, I Mod. 175. S. C. 2 Lev. 9. S. C. j Vent. 137. 2 Keble, 754. 784.) As between Hunt and ft's and Davidson, there was no consideration of blood or marriage ; the deed, therefore, could not operate as a covenant to stand seized to uses. In Roe, ex dem. Wilkinson, v. Tranman and others, {Wittes’ Rep. 682. S C. 2 Wils, Rep. 75.) all the cases on this subject are cited and reviewed, and in none of them has it been held, that there can be a valid covenant to stand seised to uses, without a consideration of blood or marriage, between the grantor and grantee, the bargainor and bargainee, the feoffor and feoffee, or the releasor and releasee. In the case of Roe, ex dem. Wilkinson, v. Tranmann, T. K. in consideration of natural love to his brother, C. K. and of 1002. granted and released to the said C. K. after the death of the grantor, and the heirs of his body; and after their decease, to John Wilkinson, (the lessor of the plaintiff,) eldest son of the grantor’s well beloved uncle, J. W. his heirs and assigns, and to the only proper use of J. W. the younger, &c. In answer to the objection that there was not a proper consideration to raise the use, Wittes, Ch. J. said, the grantor calls the lessor, J. W. the eldest son of his well beloved uncle. (4 Cruise’s Dig. tit. 32, ell. 12. s. 12. 21, 22.)
    3. By the deed executed by Hunt, and his wife, to Davidson, the trustee, no use was raised in favour of Hunt and Mrs. Houseman, to which the possession could be transferred, by operation of the statute of uses, and thereby, on the delivery of the deed, vest a legal estate in them; for if it did, Hunt, and Mrs. Houseman, acquired a legal title to the lands -on the death of Rachel Hunt, without any deed to them from Davidson, the trustee, which could not be, since it would be contrary to the established rules of law, if, by any form of conveyance, the husband and wife could convey the real estate of the wife directly to the husband, or if the wife alone could so convey it. Cruise cites the case of Smith v. Risley, {Cro. Car. 529.) with approbation, and as good law. -There Paul Risley, by indenture between him and four other persons, one of whom was his brother, in consideration of love and affection for his wife and children, covenanted to stand seised of certain tenements, to the use of himself for life, remainder to the use of his wife for life, remainder to the use of the covenantees, and their heirs, upon several trusts for his children; it was decided that the uses were well raised, and vested in the brother of the covenantor, because he was of his blood, but no use arose to the other covenantees, they being strangers.
    
    The case of Hore v. Dix, (1 Sid. 25.) is a still stronger case, and precisely in point. J. P. being seised of land in fee, by indenture between him, and T,, his' son, of the one part, and two strangers of the other part, in consideration of natural love and affection for his son, granted, and enfeoffed the two strangers of the land, to the use of himself for life, remainder to his son T., and the heirs male of his body, and remainders over. And he covenanted with the two strangers, that they should enjoy the land to the uses specified in the deed. The deed was sealed and delivered, but there was no livery of seisin, or attornment, so as to render it a valid feoffment. It was, among other things, resolved by the. court, that no estate passed to the two strangers, inasmuch •as the deed was not executed by livery of seisin; and that no use arose to them, because there was no consideration to raise a use. The case of Garnish v. Wentworth, (Carter, 137.) deserves attention for the very learned argument of the counsel in the cause, though the question was not there decided. In Samon v. Jones, (2 Veniris, 318.) all the parties were related, and of the same blood. The deed was to the son of the grantor, to the use of himself for life, to the use of his wife for life, then to the use of the son, and the heirs of his body, atid for want of such heirs, to the use of the grantor’s daughter. The case of Thorne v. Thorne, (1 Vernon, 141.) is so imperfectly reported, that it cannot be deemed as any authority on this question; (Com. Dig- tit. covenant, G. 2.) but it is slated, that there was an express covenant, that the ceshiy que ■trust should enjoy, ganders, (vol. 2. p. 94.) in his treatise on Uses, says, that as a use cannot arise to a person who is a stranger to the consideration, therefore, if a man covenants to stand seised to the use o¡f himself for life, remainder over to his relations, with a power for the tenant for life to make leases, this power is void in * creation. This is a principal reason why covenants to stand seised are fallen into disuse.” But where the conyeyance is by lease and release, the releasor may reserve to the tenant for life, or in tail, a power to lease, or to make a Jointure,' which will take effect, by way of limitation of a use, out of the original seisin of the releasee. There was no legal estate acquired by Davidson, and the trusts must fail the contingent remainders, or future uses, can only be preserved by means of the seisin, or estate of the feoffee, and the consideration of blood, or marriage must pass between the covenantor and the trustee, or covenantee. (Comyn’s Dig. Uses, {H.) Sanders on Uses, Covenant to stand seised, fyc.) If the particular estate is void, before the contingent remainder vests, the estate in remainder must fail. A cestuy que trust can acquire the property only by a conveyance from the trustee; and, accordingly, in this case, D. the trustee, conveyed to Andrew Hunt and Mary Houseman.
    
    It is said, that Davidson was a mere conduit, through which the beneficial interest was to flow to the cestuy que trusts. But Davidson took no estate ; and there must be a seisin in the trustee to preserve future uses, or contingent remainders. He was not such a conduit pipe as would give effect to these contingent uses. (Chudleigh's case, 1 Co. 127. 1 Dickens, 183. Garth v. Cotton, 2 Cruise Dig. tit. 16. ch. 7. s. 24.)
    Wells, and. T. A. Emmet, contra.
    The facts disclosed in this case strongly recommend the defendants to the justice -and favour of the court. They claim under the voluntary act of the rightful owner of the property; the objects of whose bounty, as declared in this deed, were most meritorious, her mother and her husband. The lessors of the plaintiff are distant heirs at law.
    The question in this case is as to the validity and legal operation of the deed.
    The^rsf objection to it is, that it is a will, and being executed by a feme covert, is void. But it is not .a will, either in form or substance ; nor was it intended so to be. All the cases cited to show, that instruments wanting the form of fwills, have nevertheless been adjudged to be wills, are those in which courts, in order to carry into effect the intent of the persons making them, have benignly construed them to he wills. The benignity of the law considers them wills, merely from necessity, in order to prevent the intent of the party from being defeated. But, in this-case, the court is called upon to construe a deed, manifestly not a will, to be such, not to carry into effect the intent of the grantor, or to give legal operation to the deed, but to defeat both the intent of the maker, and the operation of the instrument. This would be a perversion of the benignity of the law to the purposes of injustice.
    It is a deed intended to pass the estate of Rachel Hunt, according to its provisions; and although a feme covert cannot make a will, she may execute a deed of her real estate. This deed was executed and acknowledged with all the for. malities required by the statute. It imports to be a conveyance to D. in fee, to hold on certain specified trusts. If D. took the estate under the deed, the trusts have been executed. ¡
    It is objected, however, thatnowse, or, in other words, no-estate passed to D., and that, therefore, he could not convey any, the deed itself being void. Conveyances of real estate are such as take effect by the common law, or under the statute of uses. By the former, as by feoffment, &c. there was an actual transmutation of possession ; by the operation of the statute, the possession is transferred to the use. Uses are raised, where- there is no actual change of possession, in two ways: 1. By a deed for a valuable or pecuniary consideration; 2. By a deed for a good consideration, as blood or marriage. The first operates as a bargain and sale, the consideration raising a use to the bargainee, which is .executed by the statute; the second as a covenant to stand seised, which raises lh¿ use to the person intended to be benefited ; and uses of this kind are either vested, or springing and shifting uses, which become vested as they arise.
    If a dollar, or a cent, had been inserted in this deed, as received by the grantors from the trustee, though nothing, in fact, were paid, no question could have arisen as to its being a good and valid convevance ; and upon this omission, the ' lessors of the plaintiff found their claim. Although a single cent would have extinguished every pretension of right, yet they now assert it, as if it were intrinsically just and meritorious.
    ft js an ancient, and well established rule of law, that a (leed should never be set aside, as void, if, by any construction, it can be made good. (Hob. 277. Shep. Touchst, 82, 83. 2 Saund. 97. n. 1.) Admitting, however, that as there was no consideration of money,or of blood, between the grantors and Davidson, and that, therefore, no use or estate became vested in him; the deed is not, therefore, void, for the seisin continued in Mrs. Hunt, subject to the uses declared in the deed; and it is equivalent to a covenant'to stand seised to the uses expressed. Deeds founded on consideration of blood or marriage, or for the settlement of property, have, at all times, received a benign and liberal construction; and where they operate as a feoffment, grant, bargain and sale, &c,, they have always been held good as a covenant to stand seised. No formal words ar,e necessary to create such a covenant. The word grant is, of itself, sufficient. (Osman v. Sheqfe, 3 Lev. 370. Carth. 307." S. C. Crossing v. Scuddamore, 1 Mod. 175. 1 Ventr. 137. 2 Lev. 9. 2>Saund. 96. note 1. and the authorities there cited.)
    The words of the deed being sufficient, the next inquiry is as to the consideration. The intent of Mrs. Hunt, was to settle the estate upon her mother and husband, arid, contingently, as to one half, upon the father of the lessors. The consideration need not be expressed. It is enough that the person who is to take the estate, is described as the relation, of the grantor; and some of the cases show, that the relationship may be proved. (Bedell's case, 7 Co. '39. Harper’s case, 11 Co. 23. Mil dm ay's case, 1 Có. 17 5. Shep. Touchst. 508. 510. 512, 513. 516.) But it is objected, that this consideration must proceed from the grantee ; add D. in this case, being a stranger, no use could be raised in fa? vour of the mother and husband of the grantor. If the uses are to arise out of the estate of the grantee, we admit that he "must have such a seisin as will serve the uses declared. But here the seisin remained In the grantor, and the'uses are raised out of the estate of Mrs. Hunt, in whom the seisin continued.
    It is objected, that where the deed is, iq form, different from a covenant to stand seised, it is not turned into a covenant to stand seised, unless the grantee is of the blood of the grantor, or there is an express covenant that the cestui que use shall stand seised.
    Such a distinction is not supported by any sound principle or authority. If a formal covenant with a stranger, to stand seised to the use of the blood relation of the covenantor be good, why should not a deed lb a stranger, who, in order to give it effect, becomes a mere covenantee, be equally good ? In the first case, the cestui que use is the moving consideration with the grantor. If a deed is turned into a covenant to stand seised, it must have the same effect, and partakes of all the qualities of such a covenant, unless restrained by some express exception or qualification. .
    The cardinal rule in construing instruments of this nature is, as in the case of wills, to look to the intention of the grantor, and for nearly the same reasons, both being intended for family provision. “ The intention of the parties is,” says Lord Coke, “ the principal foundation of the creation of uses(2 Inst. 672. BedelPs case, 7 Co. 40.) And Hobart says, “ I did éxceedingly commend the judges that are curious and almost subtle, astuti, to invent reasons and means to make acts according to the intents of the parties, and to avoid wrong and injury which, by rigid rules, might be wrought out of the act.” (Clanrickard's case, Hob. Rep. 277.) Wittes, Ch. J. {Doe, ex dem. Milburn, v. Salkeld, Wittes’ Rep. 673.) observes, that this advice of Lord Hobart had been taken notice of by the judges, and referred to in many of the cases of covenants to stand seised, as an excellent rule to go by, and he thought that they could nofc observe a better. Levinz (3 Lev. 372.) says, the judges in these later times have had more consideration for the intent to pass the estate, which is the substance of the deed, than the manner of passing it, which is the shadow. {Vide also, Sleigh v. Metham, 1 Lutw. 782.) Yet in this more enlightened age of jurisprudence, the court are urged by, the plaintiff’s counsel to look at the shadow, and disregard the sub- . 
      
      stance. The intent of Mrs. Hunt, to pass this estate to her mother and husband, is most clear; but she mistook the technical manner, by neglecting to insert a consideration of one dollar, as paid by Davidson. If the deed, then, cannot stand good as a bargain and sale, will not the court look to t]le t'n;en^ and permit the estate to pass, by way of a covenant to stand seised ?
    It is objected further, that the estates to the mother and husband of the grantor are contingent remainders, and the trustee, being a stranger, took no legal estate to support them. But it is a mistake to call these estates contingent remainders. They are springing and shifting uses, growing out of the seisin of Mrs. Hunt, and becoming vested as the contingency happens, on which they are to take effect. The seisin of the grantor is sufficient to support the uses as they arise.
    On sound principles, therefore, and according to natural justice, the defendants are entitled to the estate; and the weight of authority is in their favour.' The cases of Hoarev. Dix, and Samon v. Jones, on which the plaintiff so much relies, cannot be reconciled with each other, and with the principles for which the plaintiff’s counsel contend. But thg decision in these cases met with the strong and decided disapprobation of Ch. J. Willes, and were virtually overruled by hint. (Doe v. Salkeld, and Roe v. Tranman, Willes Rep.-672. 682.) The case of Hoare v. Dix, was founded on Co. Litt. 49. which Ch. J. Willes says, was a mere dictum of Lord Coke, and had not been observed for an hundred years. In Garish v. Wentworth, the grant was to a stranger, and though elaborately argued, and now referred to for its learning, the objection relied on by the plaintiff was not taken. And 1 Co. 175. 11 Co. 23. Sir. 934. 1 Vernon, 141. Shept Touchst. 512, 513, are authorities strongly in favour of the defendant. (Doe v. Whittingham, 4 Taunt. 20. 4 Mass. Rep. 135. 7 Mass. Rep. 381.)
    
      Foot, in reply, said, that remainders are as well created by conveyances to uses, as by those which derive their effect from the common law ; and where they are created without any transmutation of possession, the seisin of the ■ covenantor or bargainor will feed the future or springing uses. But as these uses or future estates may be defeated and destroyed by the covenantor or bargainor conveying away the estate, before the event happens on which the remainder isho vest, this deed was, substantially, revocable. (2 Cruise Dig. 345. 355. 369. 372. tit. 16. ch, 6.) In all the cases collected by Serjeant Williams, in the note to 2 Saund. 97. n. 1. the covenantee or bargainee was a person of the blood of the covenantor or bargainor. There is not a single case to be found in which a bargain and sale has been construed to be a covenant to stand seised, in which the grantee was not of the blood of the grantor. Here the grant is to Davidson, a mere stranger.
    
      
      
         This case was not reported with the other oases in the Supreme i ‘ourt, for October terra, 1817, vol. 14, for want of the necessary notes of the decision; and a writ of error having been brought, it was not thought uecesyary to report it, afterwards.
    
   The Chancellor.

The facts in this case are few and simple.

Rachel Hunt, the wife of Andrew Hunt, was seised in fee of certain houses and lots of land in the city of New-York.She inherited this real estate from her father, who had acquired it by purchase. She died without issue, on the 29th. of September, 1805, and the plaintiffs in this suit are her heirs at law, being the children of her father’s brother, who was her next immediate heir, and who died subsequently to-her. These children of her uncle would have a clear and unquestionable title to the estate, if the deed executed by Mrs. Hunt, on the day preceding her death, did not interpose to bar them. The case then turns entirely upon the legal operation of that deed.

When Mrs. Hunt made the deed, she lay sick of the yellow fever, and she died the day after she had executed it. The deed secured the use of the property to her, and her husband, during their joint lives, and absolutely to her, in case she survived her husband. It was a deed not intended to affect the estate, until the death of her, or her husband;, and from that circumstance, and from the fact that "the deed-was made when she lay upon her death-bed, we are warranted to conclude, that the deed which she had. the power to make, was a substitute for a will which she had not the power to make. We may, therefore, look upon it as a deed, intended to.supply the place of a will, and made.purposely in avoidance of the statute of wills. Whether it be reasonable or useful, to except married, women out of the statute wiU»> may be a question. As a court of justice, however, we have nothing to do with the expediency of the statute, or wiih the inconsistency of the law, which forbids a married woman to make a will, and allows her, even in her last moments, to make a deed. As judges, we are not to make, or unmake the law j we are only to declare it as we find it; and without taking any interest in this family struggle between the claimants, under the deed, and the claimants as heirs, I shall now proceed to examine the deed upon the strict principles of law; and if it will stand that test, we must affirm it; and if it will not, we must reject it.

This deed was intended as a conveyance by bargain and sale, in fee, to James Davidson, upon certain trusts therein declared. But it is agreed, that the deed is not good by way of bargain and sale, for want of a pecuniary consideration. There is no dispute about this rule. If the deed operates at all, it must operate by way of covenant, to stand seised, to uses, and that species of conveyance is good when made upon the consideration of blood, or marriage. Thus, if a man covenants that he will stand seised of land to the use of his child, or wife, or brother, or other relation, the statute of uses transfers the title to the use appointed, and whether any consideration be expressed or not, if the parties be of one blood, the law implies a good one arising from the natural love and affection between the parties. (Lord Bacon on the Use of the Law, p, 151. Goodtitle v. Petto, Sir. 934.)

The deed considered as a covenant to stand seised, is a deed to James Davidson, upon trust, and the character of this grantee creates the great difficulty in the case. The consideration of natural love and affection is founded upon-the ties of blood, or marriage ; and it is conceded, that here, no such tie existed. between Hunt• and his wife, on the one part, and Davidson on the other. Davidson was .what the law calls a stranger, unconnected by blood or marriage; the deed would seem then to fail, as a covenant to stand seised, from the want of a good consideration, in like manner,OS it failed as a. deed of bargain and sale, from the want of a money consideration. The object of the deed was to vest the title in Davidson, as a trustee for the family, and the question is, whether this deed, in any view of it, can execute that intention, consistently with principles of law. One of the earliest cases on this subject, of a covenant to stand seised, in which the covenant was with a stranger, is Lord Paget’s case, in 31 and 32'Eliz. (1 Leon. 195. TCo. 154. a.) Lord Paget there covenanted with Trentham and ■others, that-he would stand seised to their use, for the term of 24 years, and then to the use of his son in tail ; and it was held, that the term was void, because there was nb consideration to raise an use, as T. and others were strangers to the consideration of blood.

The same point was decided in Wiseman’s -case, in the 27thof Eliz. (2 Co. 15.) The party there, in consideration, that his lands should continue in his family name andblood, and for other good considerations, Covenanted that’he would stand seized to the use of himself and of his heirs male of his body, and after, to the use of his brothers in tail,'and for default of such issue, to the use of the queen, her heirs and successors. In this case the Court of Common Pleas resolved, that no use was raised to the queen, because there was no pecuniary consideration, and the consideration of blood did not apply to the queen.

We have here two strong and ancient cases 'bowing that no use can be raised ón a covenant to stand seized in favour of a stranger not connected by blood. And with what firmness did the Court of C. B. maintain the rule, even under the reign of Elizabeth, though the doctrine-went to defeats use raised in favour of that arbitrary princess ?

But those two cases do not come closely to the point now under discussion. The stranger in those cases was intended, to take a beneficial interest under the conveyance, upon his o7on account, whereas, in this case, Davidson was to take only as a trustee for the family. The next case, then, in the- order of time is, Smith v. Ridley, (Cro. Car. 529. Wm. Jones, 418. 2 Roll. Abr. 783. pi. 4. S. C.) which was in the 14th of Charles I., and which-does not comequite up, in principle, to the case before us. The case was this : a man by indenture between him and four others, (of whom onewas íns brother, and the other three were strangers,) covenanted, in consideration of love and affection for his wife and chib dren, to stand seised to the use of himself for life, and then after his death to the use of his wife for life, and then to the use 0f four covenantees in fee,.in trust, that they should apply the rents, and profits to raise portions for his younger children, and then to the use of his son and the heirs of his body. After the death of the grantor, the three covenantees, who were strangers, sold the land, by deed, to the cove-' ■nantee, who was the brother, to the intent "that he* should perform the trusts, and the question was, whether the covenant to stand seised was valid, seeing that all the covenantees, except one, were strangers in blood to the covenantor. This question was argued several times. at the bar, and the . Court of K. B decided that the uses.were well raised, and vested solely in the covenantee, who was a brother, because he was of the blood; but that they were not well vested in the other covenantees, and no estate passed to them be» cause they were strangers, though the estate was limited to them in trust to raise portions for other persons. s

This case is cited by Baron Gilbert, in his Treatise on Uses, as a good authority; and Mr. Sugden, in his late and valuable edition of that work,. (Gilbert on Uses, by Sugden, p. 247; note,) says, that if the covenantees had all been strangers, no use would have arisen, “ although limited for the benefit of the blood or family, of the covenantor, and not for collateral purposes.”

This case appears to me to be in point. None of those strangers could take, even in trust for the children of the covenantor; and had not one of them,, fortunately, been a brother, no use could have arisen. In the present, case, here is a regular conveyance, by bargain and sale, to James Davidson, in fee, in trust for family purposes. The deed is void as a bargain and sale, and if we construe it as a covenant to stand seised, it is then a covenant with a stranger to stand seised to the use of the stranger, in trust, that the stranger shall hold and apply the land for the uses der clared in the deed. But the misfortune is, that Davidson the stranger, stands here alone, and by himself. Here is no brother to redeem the deed. According to the decision- in Cro. Car., and which appears never to have been questioned, the use fails for want of a covenantee, who is a relation by blood or marriage. In the opinion given by the Supreme Court, it is said that Davidson was merely made use of as the conduit or instrument, through which the beneficial interest was to flow to others. But that was also the case in Smith v. Risley. The covenantees there were only to take in trust for the family of the covenantor. They were the mere conduits or instruments, and yet the case says, those who are strangers, and not connected by blood, cannot be such instruments. Why the courts originally established so scrupulous a rule, it is not for me to say. 1 can only say, that a covenant to stand seised is a peculiar species of conveyance, confined entirely to family connections, and founded on the tender consideration of blood or marriage. No use can be raised for any purpose, in favour of a person not within the influence of that consideration. There is no cold, selfish, calculating motive to contaminate the contract, nor is the conveyance to be profaned by the footstep of a stranger.

The case of Sympson v. Keyles, decided in 1657, was cited in Foster v. Foster, (T. Raym. 49.) and it contains the same doctrine. A father had by deed given land to his son, in consideration of affection, but livery was not made, and it was held good as a covenant to stand seised. But “ a difference was taken, where the father gives to a stranger, to the use of himself, remainder over; there no use arises ; but when the conveyance is to the party himself, there the use; will arise.”

The next case in succession, is that of Hore v. Dix, (1 Sid. 25.) of which we have heard so much upon the argument. That case was decided in the C. B. very early in the reign of Charles II., One J. P , by indenture between him and T., his son, of the one part, and two strangers of the other part, in consideration of natural love and affection which he had to his son T., granted and enfeoffed the two strangers of lands, to the use of himself for life, remainder to his son T. and the heirs male of his body, with remainders over. He also covenanted with the two strangers that they should enjoy the land to the uses in the deed specified. The deed was not duly made so as to operate as a feoffment, and the question was, whether the son took undes , , ’. , 1 • , 1 the.deed as a covenant to stand seised ¿he court decided,. that no use was raised by the deed, seeing there was no . ..... ° . consideration to raise it, it being.a deed to strangers. 1 bis

is also a case in point against the deed before us, for the deed was to the two strangers for the entire use of the covenantor and his son, and they took no beneficial interest, any more than Davidson, in the present cas.e.

, The next case that is material to this point, is Jackson v. Jackson, in the 4 G. II. (Fitzg. 146 ) in which A., being seised of lands, conveyed the same by feoffment, to feoffees, to the use of himself for years, remainder to his wife for life, remainder to his sons in tail. The deed was defective for want of livery. The counsel for the defendant said, that the deed could not have the effect of a covenant to stand seised ; for the trustees being strangers in blood to the grant- or, no use- could arise to them. And the Lord Chancellor . (King.) said, he was of opinion the deed could not enure as a covenant to stand seised, for the same reason. A similar case arose in Chancery, at the very same term, in Nugent v. Hancock, (22 Viner, 196. pl. 13.) A., by voluntary deed, covenanted wi-ih B. and C., who were strangers, to stand seised to certain uses, and upon certain trusts. It was objected, that the plaintiff, who claimed as a grandson, could have no benefit under the settlement, for that the trustees being strangers to the consideration of blood, no uses arise to them, according, to Lord Paget'1 s case, and of this opinion was the Lord Chancellor. It was then suggested, that there might be a difference,, where the estate,, trust, or use in the trustees, was limited for the benefit of the blood and family of the covenantor, and where for other purposes; but no such distinction was allowed, and the bill was dismissed. ’

We have thus traced, a series of cases, from the 31 Eliz. down to the 4 of Geo, II. all speaking the same general language, and declaring, that a stranger, whether he takes any beneficial interest or not, cannot be a party to a covenant to stand seised, because it is a family conveyance, and is founded on the consideration of family affection..

We will next examine, and see whether there he any cases ‘to destroy, or essentially to weaken the force of these au- " * * thorilies.

The first case to be noticed, is Thorne v. Thorne,(1 Vern. 141.) in 1682, in which a man had, by indenture, granted, enfeoffed, and confirmed his land unto trustees, to stand seised to the use of his three brothers. But the deed not being duly executed as a feoffment, the Lord Keeper decreed, without any difficulty, that it should work as a covenant to stand seised.

This is all we have of the case, and it is a very brief note. It does not appear, that the question as to the competency of the trustees, was raised, nor does it appear, whether or not they were strangers. . They might have been persons embraced by the consideration of blood. The case, therefore, as it stands, proves nothing, one wSy or the other, as to the point is question. And can we suppose that the Lord Keeper would not have paused, at least, had these trustees been strangers, and had the point been raised, when we consider the decision in Hore and Dix, made in the same reign, by no less a judge and master of the doctrine of conveyancing, than Sir Orlando Bridgman, the Chief Iustice of the C. B. ? It is further to be observed, that in the two subsequent cases in Chancery by Lord Chancellor King, no reference is made to this decision; yet those two cases are in direct opposition to what is supposed by the counsel for the defendants in error, to be the doctrine in this case. It is most apparent therefore, that this case of Thorne v. Thorne, is not, and has never been regarded as any authority in favour of a co-' venant to stand seised to the use of a stranger.

But there are two cases later than any which we have been reviewing, and decided by Ch. J. Willes, in 1755 and 1757, which are supposed to affect the authority of the decisions in favour of the plaintiff.

In Doe v. Salkeld, (Willes’ Rep. 673.) the lessors of the plaintiff, claimed under a deed of settlement made between A. of the first part, B, of the second part, and C. of the third part. By this deed, A., in consideration of a marriage then intended between him and B., and for a jointure and provision for her, granted and released to B. and C. certain lands to hold to the use of B. for life, and in bar of her dower, then to the heirs of her body, and then to his own heirs. The marriage took effect, and A. and B. died, leaving an only child, and the deed was held to be a good covenant to stand seised. Lord Ch. J. Willes, in order to take the case out of that of Hore v. Dix, said, that the conveyance here was not to a stranger, and it was a grant in consideration of marriage. Who C., the person associated with B- in the deed, as one of the covenantees, was, does not appear. Being of the same name, it was probably a brother of B : at any rate, it is sufficient for the present purpose, that the court say, that the conveyance there was not to a strangers And if C. had been a stranger, yet the competency of B.. the intended wife, was . enough, according to the case of Smith V- Risley. If any one covenantee be of the family, it is sufficient.

The other case cited from Willes’ Reports, is Roe v. Trimmer. (Wtiles'* Rep. 682. 2 Wils. 75. S. C.) The question there was, whether a lease and release, being made to' convey an estate in tail, to commence in futuro, could operate as a conveyance at common law, and the court held ifcould not; but they were of opinion it could take effect as a covenant to stand seised to uses. The lease and release here, were from A. to his brother B. in fee tail, in consideration of natural love, and after his own death, to have, and to hold to his brother, and the heirs of his body, and after their decease, to the eldest son of his beloved uncle.

This case has nothing to do with the present one, for here all the parties to the deed were of the same family, and of one blood. So they were in the cases of Samon v. Jones, (2 Vent. 318.) in Daw v. Newborough, (Comyn's Rep. 242. Gilbert on Uses, by Sugden, p. 253, 254. S. C.) and Crossing v. Scudamore, (1 Vent. 137.) which have been supposed to have some bearing upon the point, but which have no application to the question whether the covenantee can be a stranger, in a deed of covenant to stand seised to uses. After the fullest research which I have been able to give, I cannot find a single case in which it has ever been decided, that these family uses can arise on a covenant, or grant to a stranger, whether he is to take beneficially, or only as a mere trustee for others. All the cases I have produced from the reign of Elizabeth down, and which deny that a stranger can be a party to such a conveyance, remain uncon tradicted. If there be even any dicta in favour of the com-potency of a stranger to take, they have been overruled. Thus, in Plozvd. 307. b. it was s.aid, by one of the counsel, that a use in a particular estate might be raised, and supported in favour of a stranger, when there was a remainder over in favour of the family. But this was denied to be law by a subsequent dictum of counsel, in 4 Leon. 137.; and it was exploded in Lord Paget's case.

The intention of the deed, in the present case, was, that the estate in law should pass to Davidson, and that the uses and trusts in favour of the husband and mother should arise out of the estate so vested in him. But no estate vested, whether we consider the deed as a bargain and sale, or as a covenant to stand seised, from the want of a pecuniary consideration in the one case, and of the consideration of blood or marriage in the other. I should be willing to lend a helping band to this deed, if I could find any law to warrant it; but I have found none, and I am obliged to say, that the heirs are entitled by law to the land. Though the rule of law may appear to be a formal and technical one, yet a great many of the rules of evidence are of the same stamp; and the courts must adhere to them, or they will destroy landmarks, render the transmission of property uncertain, and throw every thing into confusion. We have no more authority to change the rule of law, in order to give effect to a covenant to stand seised, than we would have to give effect to the common deed of bargain and sale, without any consideration in it, or to give effect to a deed of feoffment without livery, or to a bond without a seal, or to a will of land which has not three witnesses, or to make a note negotiable without negotiable words in it. All these, and numerous other cases, depend upon fixed rules not within the discretion of the courts; and it would produce great mischief, if not great injustice, if any of these rules were to be subverted retrospectively.

Perhaps, the husband, and especially the mother, may have more pressing claims than uncles and cousinsbut the fixed laws of inheritance which have prevailed from time immemorial, speak a different language. Real property never can, in any possible case, ascend, by inheritance, to the mother; nor will (he law allow the husband to be the wife’s heir, as to her lands and it only gives him a life estate, as tenant by the curtesy. Suppose Mrs. Hunt had left children, by a former husband, and the second husband had procured such a deed as this, from his wife, in her last sickness ; it is probable that every one would have been struck with the enormity of the ca=e, and we should gladly have seized upon this settled rule of law to have restored the land to the children. The plaintiffs, in (he present case, are not such interesting heirs as one’s own offspring, but still they are the heirs at law, and they are entitled to ask of us to give them their right, according to the established, uniform, and unbending rules of law. If husbands can procure the conveyance of property from their wives, by honest and fair means, let them do so and welcome, but they cannot expect that the courts will help them, as against the heirs, in their precipitation and blunders, and go so far as to suspend or change the doctrine of alienation by deed.

I am, accordingly, of opinion, that the case is with the plaintiffs, and that the judgment of the Supreme Court ought to be reversed.

March 25

A majority of the court being of the same opinion, it was thereupon ordered and adjudged, that the judgment of the Supreme Court be reversed, and that the plaintiff in error be restored in all things he has lost thereby. And it is further ordered and adjudged, that the plaintiff in error do recover against the defendants in error, his said term yet to come, &c. and his damages to six cents, &c.

And it is further ordered and adjudged, that the defendants in error pay to the plaintiff in error one hundred and seventy seven dollars and fifty-five cents, for his costs ■and charges by him laid out and expended in the Supreme Court, &c. as well as in and about the prosecution of his writ of error in this court, and that the record be remit- . ted) u£C*

Judgment of reversal. 
      
      
         For reversing, 14: for affirming, 5.
     