
    * Charles Storer versus Joseph Batson.
    
      ji, ior a consideration paid by B, conveys land to C, in fee; whereupon C exe cutes a bond to B, conditioned that he will convey the land to any person whom B shall appoint. —It was hoi den that no estate in the land vested in B.
    
    Entry sur disseisin. The demandant counts upon his own seisin within thirty years, and upon a disseisin done by the tenant, who pleads the general issue of nul disseisin, which is joined by the demandant.
    At the trial of this issue before Parker, J., November term, 1810, the demandant produced in evidence a judgment recovered by him against one David Jones, at the Court of Common Pleas for this county, and an execution, which duly issued thereon within thirty days after the judgment, and which was duly levied on the demanded premises March 5th, 1799, the same having been attached on the original writ August 2d, 1798, and possession delivered by the officer to the demandant.
    The demandant further proved that, in May, 1798, one Michael Williams, being seised in fee of the demanded premises, in pursuance of a verbal contract made with said Jones, by his deed of bargain and sale, conveyed the same to one George French and his heirs and assigns, the consideration expressed in the deed having been paid by said Jones; -and that said French on the same day executed a bond, in the penalty of 1000 dollars, the condition of which was, that he should convey the bargained premises to any person whom the said Jones should appoint.
    
      George French, who was sworn as a witness, testified that he acted in this affair as the friend of Jones, and at his request, Jones being an alien, not entitled to hold real estate in this common wealth; and that he, French, had no interest in the demanded premises. The same facts also were sworn to by French, in his answers' to.interrogatories on a process, in which he had been summoned as the trustee of Jones, but discharged by the Court of Common Pleas.
    In the defence it was shown that, on the 27th of July, 1798, French and Jones jointly demised the premises to one Joseph Jewett for five years, by a lease under their seals, to which Bat-son, the tenant, was a subscribing witness : * that on the 8th of March, 1799, Jewett assigned his interest in the term to Batson; and that on the next day French executed a •leed of release and quitclaim of the premises to said Batson and his heirs and assigns, under which deed Batson entered, and continued in possession0until the trial.
    It appeared also on the trial, that about the time when the demandant commenced his action against Jones, and attached the demanded premises, Batson also sued out a writ against said Jones, and caused the same premises to be attached as Jones’s property, and afterwards levied his execution upon a part of the same, but not upon that part which was levied upon by the demandant. There was no evidence of a fraudulent intention in Jones, by the conveyance from Williams to French, to delay or defeat his creditors; but the true object of making the conveyance in this manner was to secure the premises to Jones, notwithstanding his being an alien.
    If upon these facts the Court should be of opinion that the action could be maintained, it was agreed that judgment should be entered upon the verdict, which was found for the demandant; otherwise he was to become nonsuit, and the tenant allowed his costs.
    The cause was argued at the last March term by L. Bichardson and Aylioin for the demandant, and Amory and Thurston for the tenant.
    
      Aylwin.
    
    It is contended for the demandant, that the deed of Williams to French, and the bond of French to Jones, amounted to a declaration of a use, upon a bargain and sale, or a covenant to stand seised to the use of Jones. The deed and bond are to be taken as one instrument; and coupled with the facts in the case, they show that Jones had bargained with Williams for the demanded premises, and paid him the consideration money ; but Jones being an alien, Williams at his request grants them to French in fee, who thereupon covenants, under a penalty, with Jones, that he shall have the possession, receive the * profits, and that he, French, when required, will make such conveyances of the premises as Jones shall appoint.
    Independent of the fact of Jones’s alienage, these words would have constituted a declaration of a use at common law;  and since the statute of uses, even the payment of the consideration money by one man, and the taking the conveyance in the name of another, has been decided to create a trust estate by the implication of law.  No particular words are necessary to make a covenant to stand seised to uses, though it must be made upon good consideration. Here the consideration money may be considered as paid by Jones to Williams for French; and defective conveyances have been frequently aided by construction. 
    
    
      The case at bar, besides, shows that Jones had the power of appointment. In this view, then, Jones may be presumed to have appointed a conveyance to be made to the use of himself; and that a deed was accordingly made by French, which has been lost. 
    
    Whether sufficiently apt words appear by the report to have been in the condition of the bond, to have made a covenant to stand seised, &c., is immaterial, provided the parole testimony can be admitted to explain the written evidence. That a fact may be averred, though not stated in a deed, appears from a number of ■authorities.  If, however, in England these deeds would be considered as creating a trust estate, as some chancery cases seem to '.import,  yet we contend that it cannot be so adjudged in this commonwealth, from the more enlarged and beneficial construction, that has always been here given to the statute of uses, and as the words of that statute are sufficiently extensive to embrace the case ■at bar.
    It is not necessary to consider what would have been the situation of the parties, had the tenant been an innocent purchaser without notice; as, on the contrary, the case * shows that he had knowledge of the use, he must stand by the consequences. 
    
    If then, as we contend, a use was created, did any personal disability, on the part of Jones, prevent the executing of the use in him ? — There are some opinions in the books, that an alien cannot be seised of a use. But there is no adjudged case to that effect. The reason given in support of those opinions was, that the remedy of the cestui que use lay in chancery; and chancery would not compel the feoffees to execute the use to an alien. But. the want of remedy seems a futile reason to be offered against a right; for it had been early determined that an alien could take lands by purchase, although he could not hold them against the king. 
    
    It is a fair inference from the preamble to the statute of uses, that aliens could be seised of uses ; for it is there recited, that by that species of conveyance the king lost the benefit of escheats of the estates of aliens. And this cannot be doubted, when it is con-; sidered that an inquest of office could be enforced against the tenant of the freehold only. The mischiefs of aliens receiving the profits, and directing the execution of estates by their feoffees, would certainly come within the equity of the statute, were it not within the letter. There is, then, no reason of policy against the executing of a use in an alien, inasmuch as it renders his estate liable to forfeiture and to the payment of his debts; but on the contrary, there is every reason in favor of such a construction.
    
      Argument for the tenant.
    
    There are two species of conveyances to uses; one of which operates without transmutation of possession, because the legal seisin is effected by the mere operation of law, the second kind operates by means of a transmutation of possession, , because the legal seisin is first transferred by a common law coni veyance, as feoffment, fine, and recovery.  — Of the first species is a bargain and sale to uses, in which any words which before the Stat. 27 H. 8 would have been sufficient, upon valuable * consideration, are still sufficient to raise a use, if it appears to have been the intent of the parties to create a use;  a second kind of conveyance, operating without transmutation of possession, is a covenant to stand seised to uses, the technical words being “ covenant to stand seised to the use of Af &c.;  and all conveyances to uses should be construed by the rules of the common law, the same technical words being necessary in limitations of uses, as of legal estates.
    In this case there are no technical words, which will create a use in Jones; and it could not be the intention of the parties to create one ; for it could have defeated their object, since an alien cannot take by mere operation of law, for he is incapable of being seised to a use. The statute of uses gave no new rights, but only vested the possession in the cestui que use.
    
    Here is no covenant of French to stand seised to the use of Jones; the bond merely gave the latter a right of action against French to recover damages, if he refused to convey pursuant to Jones’s appointment; it being sufficient for Jones to realize the value of the land on French’s refusal to convey. If a feoffee to uses enfeoffed a stranger without notice, for a valuable consideration, the use was destroyed, and the new feoffee could not be compelled to execute the use. 
    
    The conveyance from Williams to French was absolutely to him, without any use limited tq Jones; and this latter being an alien, it cannot be supposed that the intention of the parties was to create such a use ; nor does the bond, which was to convey to any person Jones should appoint, operate to raise a use to him, as the demand-ant contends; since there are no technical words for such a purpose; and further, because the only considerations, by which a use can be raised in a covenant to stand seised, are blood or marriage : neither of which existed in this case.
    There is no fraud or injury to the creditors of Jones, since, if the conveyance had been to him, or to his use, he could not have holden against the commonwealth.
    * Could Jones have taken possession of the land by force of French’s bond to him ? Or would French have broken the condition of his bond by refusing to deliver possession to him ? The statute of frauds requiring all declarations or creations of trusts, &c., to be in writing, no verbal agreement can operate in deciding this action. — All conveyances must by our statute be recorded ; but this bond was not recorded. —Batson being a witness to a lease to which Jones was a party, by no means amounts to evidence of notice to him ; since there is no proof, nor is it to be presumed, that he was acquainted with the nature or subject matter of the instrument, the execution of which he witnessed.
    Resulting uses, or uses by implication, can never arise but to the original owner. 
    
    But for the bond, there could have been no pretence that the deed of Williams was a conveyance to uses, since there is nothing in it to justify such a construction ; and since the statute of frauds, no use can be created, but in writing. — The bond, then, is the only evidence the demandant can adduce as evidence of an intention to raise a use. But the bond is not a bargajn and sale, nor is it a common law conveyance. If it is a conveyance of any kind, then, it must be a covenant to stand seised to uses. But this it cannot be, both for want of the consideration necessary to such a conveyance, and of the necessary technical words. And upon the whole case it seems very evident, that it was not the intention of the parties to create a use; since the necessary consequence would have been to vest the possession in Jones as cestui que use; and the situation of the estate would have been precisely the same, as if a direct conveyance had been made of it from Williams to him.
    
      L. Richardson observed,
    that it had always been the manifest desire of the legislature in enacting laws, and of this Court in expounding them, that no debtor be permitted to place his property beyond the reach of his bond fide creditor; and he contended that if this action could not *be maintained, an ingenious device would be sanctioned, by which a debtor’s property could not be reached by any legal process. French has already been discharged upon a foreign attachment as the trustee of Jones; and if the land cannot be taken as his, then a debtor may enjoy the rents and profits of as much real estate as he has the means of purchasing, and bid defiance to his creditors. For as to a remedy against his person, it would be very inadequate, even if he kept himself within the jurisdiction of our courts, which it would be easy for him to avoid. This fraud, it will be perceived, may be practised by citizens as well as aliens.
    Further, in this way aliens may enjoy all the real estates within their means of purchasing, and thus possess the rights of citizens, without being obliged to any of their duties, against the policy of all wise governments. The commonwealth, too, in this way would be defrauded of its right to the estate of aliens by forfeiture.
    The estate in question, at the time the demandant attached it, was not Williams’s, for he had divested himself of it by his deed to French, It was not French’s, for he has sworn that he paid no consideration for it, and had no interest in it. It must then be admitted to be Jones’s; for an alien can purchase real estate, and can hold it, until government exercise their right upon it. A creditor may then seize it in execution, and hold it at least until the government see fit to dispossess him.
    Taking the whole transaction before the Court together, it cannot be' considered otherwise than as creating a use in Jones. Taking the bond as a part of the deed, as it ought to be, French held the estate for the use of Jones; nor did he ever assume to himself any control over .it. The possession of French having been transferred to the use, any attempt on his part to convey the fee would have been a tortious act. In fact, instead of having an absolute fee simple, some of the highest attributes of it appear to have been transferred to Jones. French had no power to control or * convey the estate but according to Jones’s direction ; so that in no respect, upon a fair construction of the bond, and the intent of the parties, could French have taken an absolute estate to himself.
    A use is defined by Gilbert to be t: an equitable right to take the profits of an estate, and extends to all who come in privy to the use.” Thus Jones paying the whole consideration money to Williams, and the conveyance to French being merely nominal, an equitable right vested in Jones to receive the profits of the estate. 
    
    It can never be said that the remedy on the bond was an adequate remo ly for Jones. He and his attaching creditors had a right tc the use itself. Chancery would enforce a specific performance even were it a trust.
    But even allowing that Jones could not enforce his use or trust against French, it does not follow that his creditors could not. We contend that the transaction was in itself a fraud in law, on the part of Jones and French, of which a creditor of Jones may take advantage, although Jones himself might not; as a grantor in a fraudulent deed cannot avoid it, although his creditor may.
    As French held the estate subject to an obligation of conveying it to any person Jones should elect, his election ought to be considered as made in law, when the estate was taken to satisfy his bona fide debts ; and if the trust in French was a fraud in law, the creditor ought to hold it by virtue of his extent, as well against him as Jones.
    
    It cannot be pretended that Batson was an innocent purchase! without notice ; the record shows he had notice, and knew all the facts ; nay, he himself attached at the same time a part of the estate as the property of Jones, and received seisin of it on execution. He was also a witness to the lease from French and Jones. If a first mortgagee witness a second mortgage deed, he loses his priority, unless he gives notice. 
      Batson had knowledge of all the facts attending the demandants attachment and extent upon this land; and it is fraudulent in him to avail • himself *of the right of an innocent purchaser without notice.
    
      
      
        Plowd. 352, Delamer's case.
      
    
    
      
      
        Barnard, 384, Lloyd vs. Spillet. — 2 Atk. 150. — 2 Vent. 361.
    
    
      
      
        Shep. Touch. 82,83.—4 Mass. Rep. 135.
    
    
      
       8 D. & E. 122. — Bull. N. P. 110.
    
    
      
       5 D. & E. 129. — 7 Brown’s P. C. 70. — Dyer, 146.
    
    
      
       2 P. Will. 314, 415. — 10 Mod. 515. — 9 Mod. 62.
    
    
      
      
        Gilbert on Uses, 7. — 4 Lord Bacon's Works, 171.
    
    
      
       Vide Hale's Argument in Collingwood vs. Pace, 1 Vent. 417
    
    
      
      
        Cruise on Uses, 65,106,107.
    
    
      
      
        Cruise, 66, 67.
    
    
      
      
        Ibid. 82.
      
    
    
      
       Cruise, 19.— 1 Rep. 122. — 2 Black. Comm 337.
    
    
      
      
        Cruise, 202.
    
    
      
      
        Shep. Touch. 482. — Ambler, 410. — 2 Vern. 440.
    
    
      
      
        Powell on Mortgages, 184,186, 295
    
   The action stood continued to this term ; and now the opinion of the court was pronounced as follows by

Sewall, J.

The demandant relies for his title and seisin on the levy of an execution ; and it appears that the premises in controversy were, on the fifth day of March, 1799, set off to him, and _ he accepted them, as the real estate of David Jones, in satisfaction of judgment recovered against him ; the premises having been attached upon the writ, by which the suit was commenced, and the levy and extent being within thirty days after the judgment was rendered.

Against this, supposed title the tenant contends, that the prem ises taken in execution were never the real estate of David Jones ; and for his title to them relies on a deed of bargain and sale from one George French, made subsequent to the attachment in the demandant’s suit against Jones, but before the execution against him was extended.

The controversy is therefore to be decided on the single question, which has been fully and ingeniously argued upon the case reserved, whether the premises demanded were the estate of Davpl Jones at the time when they were attached upon the demandant's writ; to which time the subsequent levy of his execution has relation, so as to avoid any mesne conveyance or title derived by or from David Jones.

In tracing this title we find that the premises in controversy, with other adjoining real estate, were, in May, 1798, conveyed in fee simple, by a deed duly acknowledged and recorded, from one Michael Williams to the said George French; and the deed is expressed to be made for a valuable consideration in money paid him, and it purports to be a deed of bargain and sale, to the sole use and behoof of French and his heirs and assigns.

"The parties have agreed that Williams was, until the execution of this deed, the proprietor and owner of the estate thereby conveyed; but the demandant adduced some * parole testimony, particularly that of George French himself, to prove that the bargain from the estate conveyed to him, and which he has since conveyed to the tenant in this action, was made for Jones, and that the consideration acknowledged by the deed was in fact paid by him.

It was further proved by the same parole testimony, that immediately after the deed to French was made and received by him, or at the same time, he executed a bond to Jones in the penal sum of 1000 dollars, conditioned to convey the premises purchased of Williams to any person whom the said Jones should appoint.

If upon this evidence the title to the demanded premises should be adjudged to have been in Jones at the time of the demandant’s attachment, and to have continued in him by relation until taken by his execution, it must be so adjudged altogether upon parole testimony, contradictory to, and controlling a solemn deed, acknowledged and registered, and accepted by the witness; who is thus employed to defeat a title which he himself has conveyed to the tenant.

Even the bond upon which the demandant relies, as the only written evidence of Jones’s title, is not produced. It may be said that, from the nature of the casé, the bond is not in the power of the demandant; and so it appears. But, then, it also appears that it is not in the power of the tenant. And if written evidence is at all essential "to the demandant’s title, this is not the case where parole evidence of the contents of a writing may be received, and have the effect which the writing itself would have; as where a writing is in the power of a party, against whom it is to be used- and after due notice he refuses or neglects to produce it.

I am also inclined to think the witness examined in this case incompetent, and that he ought not to have been received to swear that he had no title, after he had undertaken to convey a title to the tenant. It is stated, indeed, as the opinion of Lord Holt, that a man, who conveys land, * may be a witness to prove he had no title, although not compellable to give such evidence. But this is certainly opening a door to fraud ; especially where the witness, as in this case, is supposed to have conveyed without warranty. And the evidence received at the trial, to affect the tenant, as having knowledge of the transaction with Williams, that it was in fact for the use of Jones, does not remove the objections, which arise in my mind, to the competency of the evidence, upon which the proof of the demandant’s title is supposed to rest,

The circumstance that the tenant was a subscribing witness to a lease, in which French and Jones joined as the lessors, affords no necessary presumption that he knew the contents of the instrument; or, if he did, that he had knowledge of the nature of Jones’s title. From the subsequent conduct- of the tenant it may be collected that, after a belief on his part that Jones had the title, he became in some way satisfied that he had been mistaken; and he now relies upon a title obtained from French.

However, in the argument upon the general question reserved, it seems to have been taken by both • parties as sufficiently proved at the trial, that the conveyance to French was for a consideration paid by Jones; and that in consequence Jones holds, or at least had a bond from French, by which he engaged to convey the premises purchased, as Jones should appoint.

It is true, that by the ancient common law, the use or beneficial interest in lands, after a bargain concluded, and the purchase money and consideration paid, arose to the bargainee, even before any assurance or writing. But the transfer of the use was not a transfer of the land itself; and the only remedy of the bargainee, or cestui que use, was in chancery. And after the statute of Hen. 8, by which the land was transferred to the use, or according to the use or beneficial interest; in the same parliament, as Lord Bacon observes, provision was made by statute, that land should not pass away by a mere verbal bargain and sale * upon payment of money, nor unless there was a writing indented between the parties.

Provisions to the same purpose have been enacted with us, and have been in force from the earliest migration of our ancestors to this country. Those by which the transfer of real estates is regulated at this time, are to be found in the revised statutes. As I understand these provisions, no estates, certain or uncertain, in messuages, lands, tenements, or hereditaments, beyond an estate at will, can be made or created by parole, whatever may be the consideration paid for the same; nor can any estate or interest in, to, or out of any messuages, lands, tenements, or hereditaments, be assigned or granted, unless it be by deed or note in writing; and grants and assignments, as well as all declarations or creations of trusts or confidence of any lands, &c., are to be manifested and proved by some writing. And besides all this, deeds and conveyances of lands, to avail against any other than the grantor or his heirs, are to be acknowledged and recorded.

In the case at bar, therefore, the parole testimony of the verbal bargain, and of a consideration paid by Jones, can have no operation upon the deed of Williams to French, to raise a use to Jones, his heirs or assigns, either from the grantor or grantee. No such use, or intent of the parties, is expressed in the deed itself, or is to be collected from it, but the contrary; unless we suffer the deed to be controlled by the contradictory verbal testimony; or unless a use can arise without any written contract or declaration.

The statute provision is also in the way, to prevent any application of the parole testimony to the condition of the bond given by French. If a use arises upon the bond to Jones, such a use or trust as may be construed a transfer or grant of an estate to him, or which may become so by the operation of the statute of uses, the assignment, grant, creation, or declaration of the use, must be in writing, even to affect French, if the controversy was with him. Now, * the condition of this bond, taking it to be according to the parole testimony respecting it, contains no acknowledgment of any consideration of money paid by Jones, or of any intention of holding the estate conveyed, to the use of Jones, his heirs and assigns. On the contrary, taking the written evidence resulting from the deed and bond in connection, without suffering it to be controlled by the verbal testimony, the premises in controversy, and the other tenement conveyed to French, were to be holden to his sole use in fee simple; until an appointment by Jones and a compliance with it by French; for which purpose he engages to execute another conveyance; and if he should refuse, the only remedy for Jones, in this jurisdiction, where no chancery power exists, would be an action for the penalty. The words, therefore, which plainly express a different intention of the parties, are not apt or suitable to raise a use to Jones.

There is a further objection, which is insuperable, unless resort be had to the parole testimony; and that is, the condition of the bond contains no acknowledgment or proof of a consideration paid by Jones. The bond does not necessarily import a consideration, for it may be enforced to the extent of the penalty, although made without any consideration ; and there is nothing in the condition, which imports a consideration of any kind. And although it is said, a consideration consistent with the deed, or with the considerations expressed, may be averred, yet this is in cases where a use is declared, but not where the use itself depends upon proof of the consideration.

And when this case is considered, as it arises between the demandant and a stranger to the contract, whatever it was, or might have been construed to be, between French and Jones, it seems impossible to construe it a conveyance executed, or a transfer in any form to Jones, which can avail against the conveyance from French to the tenant in this action. To give this effect to a bond, which contains * no expression of transfer, no declaration of a use, importing a different intention of the parties, and not acknowledged or recorded, or required to be so for any of the purposes expressed to be intended by it, would give occasion to a novel form of conveyance, and one that must have an alarming and dangerous tendency ; even if restricted to a case of actual notice to the party liable to be injured by it. What danger could he apprehend from a pocket conveyance, if so it may be considered, depending upon the will of his grantor whether it should ever be disclosed, and containing no intimation of a title vested in Jones, and arising to him, if at all, by a very enlarged application of the doctrines of uses and trusts ? Compared with the inconveniences to purchasers from this quarter, the possible inconvenience to creditors, from a concealment of the property of their debtors, is light and trivial.

Cases will rarely happen, where a citizen will vest his property in real estate upon a title depending upon private confidence, where the law affords no specific remedy, and no security against the accidents to which the trustee, as well as the owner of the beneficial interest, is exposed. And as to aliens, it is hardly a supposable case that a credit is afforded them upon their property in real estate, unless it happens from an entire want of caution, or some gross mistake.

I have not, in the examination of the question reserved in the case at bar, taken any notice of the circumstance, that Jones was an alien, and that he was induced by it to adopt a form of conveyance, intended as a security of his purchase in real estate against an escheat to the government. It is merely the consequence of a civil disability, not of any crime or offence, that an alien cannot acquire a permanent property in lands ; and when he confides the legal title to a citizen, and depends absolutely upon him for the avails of his purchase, this is rather a conformity to the laws, than an evasion of them. The principles of the common law, applicable to this subject, are not to be * understood or employed as nets for forfeitures; but as a security against an undue foreign influence, which might happen to be injurious to the political concerns of a nation. Aliens, therefore, although capable of purchasing real estate in perpetuity, and of conveying it, yet hold it at the will of the sovereign of the territory where they reside. But this condition or disability, arising out of their particular relation to the community, has no effect upon the forms of conveyance ; which are to be the same, and to receive the same construction in the case of an alien as in the case of a citizen,

Demandant nonsuit. 
      
      
         [Vide, contra, Worcester vs. Eaton, 11 Mass. Rep. 368. — Loker vs. Haynes, ib 498. — Bridge vs. Eggleston, 14 Mass. Rep. 245. — Ed.]
     
      
      
        Bacon's Lau: Tracts, 150.— Com. Big tit. Covenant, G. 1.
     
      
      
        Stat 1783, c. 37.
     
      
      
        Com. Dig. tit. Covenant, G. 2.
     
      
      
        Ibid. G. 3.
     
      
       2 Co. 76, Cromwell’s case.
      
     
      
      
        [Township No. Six vs. M'Farland, 12 Mass. Rep. 325. — Vide Goodioin v* Hubbard & M., 15 Mass. Rep. 210, and note to that case. — Ed.]
     