
    Joshua Sawyer vs. James Little.
    Orleans,
    
      March, 1832.
    A lease for 800 years to a, feme covert end her particular heirs, such, loo, as were then in being, is an incumbrance on the cslate.
    When hiisbaiul and Wife join in a deed of conveyance of land, with covenants of Seizin, &c., the wife is not liable to a suit upon such convenants, but the husband) it seems, may be sued as if it were his sole deed.
    This was an action of covenant, which came up from the eourlty court on the following case agreed lob}' the parties :
    “ In this cause, it is agreed by the parties, that, on the 16th day of April, 1824, James Lillie, the defendant, was the owner in fee simple of the land in question, and was in possession of said premises; and, on the said (Gth clay of April, IS24, con* Veyed said premises to Thomas Waterman, of Johnson, by deed of quitclaim, or warrauly and seizin ; that, on ihe said 16th day of April, 1824, the said Waterman leased lo'Rosetta Lillie, wife of James Liille, her executors, administrators and assigns, the whole of said premises for and during the term of eight hundred years from l he date of said lease, lobe completed and ended ; and directing the premises, at the decease of Rosetta Little, to pass tot he legal heirs of James Little by the said Rosetta, and to Diantha Salford, wife of Joseph W. Salford, and daughter of James Little (by another wife;) to them equally, and to their heirs, executors, administrators and assigns, during said term ; they paying therefor lo Waterman, his heirs and assigns, an annual rent of twelve and a half cents ; and that they also, to bear and pay the taxes, &c. during said term ; dial, on the 17th day of January, 1825, and long after the above lease, Tilomas Waterman reconveyed to James Little, by deed of quitclaim, the said premises; that, on the 12th day of June, 1827, James Little and Rosetta Little, then in possession, conveyed the premises to the plaintiff, by deed of warranty, covenanting that they were at, and until, the ensealing of said deed, well seized of the premises in fee simple, and that they had good right and lawful authority lo bargain and sell the same, in manner-and form as mentioned in the deed ; and that tiiey were free, and clear of all in-cumbrances; that all the deeds of conveyance referred to were executed with the necessary formalities, and are agreed to he valid deeds, so far as respects their execution. It is agreed, that Sawyer had heard, at the .time of the execution of the deed by James Little and Rosetta Little to him, that some kind of lease had been executed to the heirs of James and Rosetta Little, and Diantha Salford, but had never seen the lease ; and, at the time of the conveyance to Sawyer, said lease was not considered or believed to be valid. It is agreed that the original deed from James and Rosetta Little to Sawyer, with copies of all conveyances referred^ in this case, are to be made alpart of it. It is also agreed, that, at the date of the lease from Thomas Waterman, Diantha Saftord was and still is capable of taking said estate ; also that there are and were, at the time of the conveyance to Sawyer, joint heirs of James and Rosetta Little, as contemplated by said lease,-all capable of taking said estate, if such be I he operation of said lease. Now, if, upon the whole ease, the court should be of opinion, that there is a breach of covenant upon any of the covenants contained in the deed to the plaintiff, and that said estate was incumbered, when sold to Sawyer, judgement is to be entered for the plaintiff, and damages to be assessed by the court according to law.”
    On this statement of facts the county court rendered a judgement for the plaintiff- and the defendant appealed to this Court.
    The case having been elaborately argued by counsel, the opinion of the Court was pronounced by,-
   Hutchinson, C. J.

When this cause first came up to this Court, it stood against the said James Little, and his wife, Rosettct Liitl'e, jointly. After argument, upon the same statement of facts now-before us, we decided, dial she was not liable upon those covenants, made during her coverture ; but no decision was made upon the part of the case then remaining, and now presen-* ted for our decision. The plaintiff- moved to amend his declaration, by erasing the name of said Rosetta, and letting it stand' against said James alone, as it now is. This was granted, upon terms, I believe, which were complied with. In life present argument, the execution of this deed by said Rosetta, jointly with her husband, during her coverture, is treated as a nullity, so far as relates to her liability on these covenants ; or so far as relates to the liability of said James ta be sued alone, without taking notice of the said Rosetta, as being a cosigner with said James.

Therefore, the only question now presented is,- whether the lease from Waterman, under all the circumstances of the case, creates a defect of title in James, when he conveyed to the plaintiff ; or, whether it was then an incumbrance upon the land,so as to form $ breach of these covenants in the defendant’s deed to the plaintiff It appears in the case, that Waterman, having received from this defendant an absolute title to the land in question, gave a 1'ease of the same for eight hundred years to the said Rosetta, then lire wife of the said Jaiues, her executors, administrators and assigns^ they paying twelve and half cents yearly rent. Had the lease stopped here, it would have created, according to the authorities cited, a chattel interest in said Rosetta, which would have been under the control, and at the disposal, of her executors or administrators after her decease, or might have been disposed of by her during her life, and, of course, would not have formed an incumbrance upon the land, to operate against the conveyance made to the plaintiff by her and her husband. But the lease goes on, not in any form, found in the books, but in a sort of .historical manner, and provides, or rather recites, that, at the decease of the said Rosetta, the said premises are to pass to the legal heirs of the said James Little, by the said Rosetta, and to Diantha Sal-ford, wife of Joseph W. Saftord, and daughter of the said James Little, by a former wife ; to them equally, and to their heirs, executors, administrators and assigns, during said term ; they paying therefor, to the said Waterman his heirs and assigns, an animal rent of twelve and a half cents: they were also to bear and pay the taxes &c., on said premises, during said term. The case also states, that said Rosetta was then, and now is, capable of taking and holding real estate, and that there then were, and still are, in being,'such joint heirs of said James and Rosetta, as named In said lease.

There can be no doubt but that this arrangement with Waterman was intended as a family settlement of this farm. James deeds to Waterman, to enable him to convey to Rosetta, the wife of said James, and to certain heirs named. He conveys accordingly by the lease referred to. He then quits to said James all bis, Waterman’s, ri^ht to said premises. This operates to make said James landlord to receive the annual rent. He then was in possession, in right of his wile under the lease, and as landlord under his deed.

Now, in ascertaining what should be the true construction of this lease, we derive no benefit from the location of the various expressions ; because it follows no form known in law. All we can do is, to compare all its provisions together, and see how they, best stand together, and hence discover what were those intentions of the parties, to which the law will give sanction. In this mode of investigation, we are led to the conclusion, that the expression, “ the heirs of said James by said Rosetta, and the said Diantha Salford,” should be treated as a term of purchase, they all being then and still in existence. The lease will then operate to give Rosetta a life lease, and, upon her decease, the said Diantha Safford, if living, otherwise, her heirs, and those children of said James and Rosetta, jointly, who would be their legal, joint heirs, if said James were also dead. This was, therefore, an outstanding title, which James and Rosetta could not convey to the plaintiff. They could convey all her right, that is her life estate, and no more. The use for the residue of the eight hundred years, >after the decease of the said Rosetta, is a title against which the plaintiff cannot hold. This may be considered a breach, either of the covenant of seizin, or covenant against incumbrances. By a reference to the plaintitF’s deed, a copy of which is furnished us, we perceive, that the covenant of seizin is not a naked covenant of seizin, but is also a covenant that the seizin 'is in fee simple, accompanied with a good right and lawful authority to bargain and sell said .premises in the manner in said deed written. Now, upon-the construction we have given the lease, they were not seized in fee simple, but for the life of said Rosetta, only,; and they had no right to bargain and sell said premises, but only to ■sell a life estate in them. This outstanding title may, also, be considered'as an incumbrance; because the plaintiff would be obliged to purchase it in, or he could never hold the premises under bis deed, after the deeease of the said Rosetta. Judgement must be entered-for the plaintiff upon this agreed casebut we cannot assess the damages, as the parties have'contemp'lated in their agreement. There can be no possible rule for assessing the damages, that will be sure to do justice to the parties. There ought to be an agreement, if possible, 'to rescind this last contract, and the plaintiff convey back his title on proper terms, receiving back what he has ever'paid, and his costs and interest. The parties so little thought of the state of things into which they have got themselves, possibly a court of chancery would compel •a rescinding of the contract, on some reasonable terms. The best justice may be done by the agreement of the parties. As the action now stands before us as a court of law, it must pass to the county court for the assessment of damages.

Sawyer & Fletcher, for plaintiff.

Willard & Young, for defendant.  