
    Tabitha Singleton vs. Admx. of Francis Bremar.
    A fee cannot be limited to take effect in futuro; therefore a deed of a tract of land “ in case of my death to A,” is void as a conveyance.
    
      t An instrument having the formality of a Deed, may operate as a L Will, being voluntary and to take effect at the death of the /£ maker.
    A Covenant to stand seized to uses must be supported by a good or valuable consideration, and the insertion of the words “ having received full value,” or “ for divers good causes and considerations,” will not support such a covenant.
    On complaint of a breach of covenant, the recovery must be measured by the consideration paid.
    This case had been tried before, and was sent down for a new trial. (See Harper’s Law Reports 201, for a report of the case.) It will not be necessary to repeat the evidence. The action was brought on two notes of hand for $2,000 each. Defence — that there was no consideration. The Plaintiff being formerly Bremar’s slave, had been freed and kept by him as his mistress, during his marriage with the defendant, until his death, and that these notes had been given in consideration of this intercourse. It was proved that Bremar supported her in Charleston, in lodgings hired by him, where he lodged whilst in Charleston, his residence being in St. Matthews Parish, and that she had no other property than what he gave her, and that he kept her till his death.
    
      In reply the Plaintiff offered in evidence a paper to show that Bremar had conveyed to her a House and Lot in Charleston of considerable value, and had afterwards sold it and received the purchase money. The paper was in the following words : “ I do hereby in case of my death, give to Tabitba Singleton, (a free brown woman,) my house and lot in Wenthorth street, and to the said Tabitha Singleton her heirs and assigns forever, having received full value, and I do hereby warrant and defend the same from me and my heirs and all and every person or persons whatsoever. Given under my hand and seal this eighteenth day of May 1809. Sealed, delivered, See.” witnessed by two witnesses. This evidence was objected to, on the ground that the paper was void, being a conveyance of a freehold to commence in futuro. His honor, Mr. Justice Gaillard who tried the cause overruled the objection and admitted the deed, and charged the jury that if they believed that the notes were given in consideration of cohabitation, they were voluntary and the plaintiff’s suit could not be maintained; but that it appeared to him that the evidence was too slight to establish that point, or in any wise to effect the note. That the deed of Bremar to the plaintiff gave her a title to the house and lot upon the death of Bremar, a life estate being reserved to himself.
    The defendant appealed on the ground that the pretended conveyance of the house and lot was void, being the conveyance of a freehold to commence in futuro. y
    
    Petigru, Attorney General, and Harper, for appellant.
    The deed is void as a conveyance. It is not a covenant which will give an equitable interest. Equity coxdd not execute such a deed. In favor of blood equity will execute covenants to stand seized — but here the consideration is immoral, Coleman vs. Sorrell, 3 Bro. G. C. 12. 1 Ves. Jr. 54. 1 Ves. 514,
    
      Hunt, contra.
    The notes express to be for value received, which is sufficient. The defendant was bound to prove that there was no consideration. The general presumption was in favour of the notes, and Bremar having sold her house and lot was conclusive. 7 John. Rep. 321. 8 John. 465. 9 John. 217.5 Wheaton277: Hedidnot pretend that the paper promising to convey the house was a legal conveyance of title. But it was a covenant to stand seized to the use of himself for life, remainder to the plaintiff. The statute executes the use in presentí, 3 Com. Dig. 253. tit. Covenant. Preston on Estates, 217.
    It expressed to be for value received. All that was necessary in such covenants is that the grantor be seized at the time, 2 Wils. 75. The Court looks to the intention of the covenantor. Co. Lit. 1545.- Coliman vs. Sen-house, 2 Lev. 225.
   Curia, per

Johnsox, J.

It is objected that the presiding Judge misdirected the jury in charging them that this instrument gave the plaintiff a fair claim on the estate of the intestate for as much as her interest in the house was worth, at the time it was sold. The natural import of the terms used in the first part of this paper, would unquestionably give itthe effect and operation of a will. By the term give, a voluntary donation is strongly implied, and the provision that is to take effect after his death su-peradds all the properties of a will. If it is to receive this interpretation, then the sale of the house by F. Bre-mar in his life time was an ademption of the legacy and the plaintiff took no interest under it. It is impossible, I think, by any rule of interpretation so to construe this paper as to vest any interest in possession in the plaintiff; the paper itself does not profess to convey any; on the contrary, it is limited to take effect at the death of the intestate; and it is one of the settled rules of the Common Law that a fee cannot be created to take effect in futuro. 2 Blackstone Comm. 165. 2 Wcodd. ITT; and such a deed would therefore, be void. It is urged, however, that this rule is abrogated in this country by the substitution of the delivery of the deed instead of the Common Law mode of passing it by livery of seisen. But I apprehend that the delivery of the deed could not operate to vest a fee eo instanti in opposition to its express provision. The fee can never be in abeyance; and the principle on which the rule is founded, I take to be this, that the power of disposing of the fee is inseparable from the person in whom it is vested, and so long as it abides there the power remains. It follows, therefore, that the plaintiff had no interest in possession in the house and lot at the time of the sale. It has been further insisted that although it may not operate to vest an interest in possession, it is good as a covenant to stand seized to the use of the plaintiff; but to support such a covenant there must be either a good or valuable consideration. A general consideration, it is true, is expressed on this paper by the terms “having received full value;” but it must be recollected that the object of introducing it in evidence is in effect to recover for a breach of the covenant, and, as the recovery in an action founded on such acovenant must be measured by the consideration paid, it is impossible to judge of it from this general expression, and hence the rule that a general consideration, such for instance as “ divers good causes and considerations,” is not sufficient to support such a covenant. See Com. Digest, Title Cov. 9. 4. 5. and the cases there cited. It follows, therefore, that the plaintiff took nothing under this paper, whether it be regarded as a will or deed; nor can it operate as a covenant to stand seized to her use: so that in fact there was no interest arising out of it which entitled her either in Law or Equity to any claim or demand against the intestate, Bre-mar, or the defendant his legal representative. The charge of the presiding Judge was, therefore, calculated to mislead the. jury in this respect and for that reason a new trial is granted.

Motion granted.  