
    GENERAL COURT,
    OCTOBER TERM, 1804.
    Cheney’s Lessee vs. Watkins.
    Altho’ a deed cannot operate as a bargain and sale? it may operate as & feoffment, (there being words “give and grant,”) if livery of seisin can be proved, &: there may be circumstances from, which livery may be presumed
    To constitute a deed of bargain dr sale there mu t bp a money comide» ration, or general words of consideration under which a pecuniary consideration may be averred— other land being expressed to bo the consideration is not sufficient
    If '•'•divers good causes and const• derations” ar© used m the deed, without mention» ing any specific-consideration, the party may aver what the consideration was: and if money be avened as the consideration, it will make it a deed of bargain and sale
    If the considera*» tion is blood, marriage, or natural love and affection, the deed will ope-
    rate as a covenant to stand seised.
    If a deed wil* not have operation in one tray, it may operate in some other way*
    Neither the record of enrolment, nor a copy of a deed not directed by law to be enrolled, can be admitted in evidence. *
    The record of a will not legally attested by three witnesses, is not legal and admissible evidence to prove that the testator claimed the land therein devised, and was in possession thereof, claiming title to the same
    From great length of possession of the land, the paymeat of taxes, &c, the jury Jfl^y presume % ¿any©yance from, the patentee, &c; »
    Ejectment for a tract of land called Cheney’s Hazard, lying in Jtnne-Jlrnndel county. The defendant took defence on warrant, and plots were returned. General issue pleaded, and issue joined.
    1. The plaintiff, by his counsel, read in evidence to the jury a patent for the tract of land called Cheney’s Hazard, being the land in the declaration mentioned, granted to Richard Cheney on the 30th of May 1663, for 100 acres more or less. He then offered evidence to the jury to prove that the lessor of the plaintiff was the heir at law of the patentee.
    The defendant then offered in evidence to the jury, a copy of the Rent Moll legally authenticated, viz «100 acres, Cheney’s Hazard, surveyed 24 Dec. 1661, for'Richard Cheney, on the south side of South River. Toss. John Derbin.”
    
    
      Mienations.
    
    «100. Patrick Symson from Samuel Burgess, and uxor, 17th February, 1T19.
    100. Richard Hill from Patrick Symson and Eleanor, uxor, 3rd November 1724.
    
      
      10O. David Maccleftsh, from Diehard Mill, 4th April 1726
    He also offered in evidence the will of John Durbin, dated the 9th of October 1715, whereby he devised the said land nailed Cheney’s Hazard, to his wife Elizabeth Durbin, «to be entailed tipon the said Elizabeth, and her heirs, neither to be sold nor mortgaged if the said Elizabeth has heirs by her own body, and the said heirs live to the years of twenty-one, to enjoy the said latid, otherwise the son of Dorothy Cal-lingsworth to enjoy the said land' for him and bis heirs.” He also offered in evidence a deed from Samuel Burgess, and Elizabeth his wife, to Patrick Sympson, dated the 17th of February 1719, for the said tract of land called Cheney’s Hazard, in which will the devise from John Durbin to the said Elizabeth, who had intermarried with Burgess, is recited. The acknowledgment of said deed by Elizabeth, and her examination by a justice of the provincial court who took the same, is that the said «Elizabeth, the wife of the said Samuel, who being by me secretly examined out of the hearing of her said husband, declared that she acknowledged within land and premises to be the right of the within named Patrick Sympson, his heirs and assigns for ever, free from any threats or fears of her said husband’s displeasure” 
      .
    
    The defendant also read in evidence a deed from Patrick Sympson, and Eleanor his wife, to Diehard IMU, dated the 2Sd of November 1724, for the said land. He then produced in court the original land record book of Anne-Arundel county, under tiie custody of the clerk of Anne-Arundel county court, and by him brought into court, in which book was. the record of a deed purporting to be a deed from Richard Hi'l to David Macklefish, dated the 4th of April 1726, and offered to read from the said record hook the enrolment and copy of the said deed, in the words following, to wit: “This Indenture, made this fourth day of April Anno Domini one thousand seven hundred and twenty-six, between Richard Mill, of Anne-Arundel in the province of Maryland, practitioner in physic, of the one part, and David MacMeJish, of the same county and province, planter, of the other part, witnesseth, that the said Richard Hill, for and in consideration of two tracts of land, situate and lying in Anne-Arundel county and province aforesaid, one of which tract containing one hundred acres, (being part of a tract of four hundred and fifty acres,) formerly granted unto Thomas Besson of this county, called Bessendon, and another tract of land, formerly laid out for Thomas Sutton, called Sutton’s Addition, adjoining to the former, containing and laid out for twenty acres, both tracts containing one hundred and twenty acres more or less, as in the original certificates doth more at largo appear — Hath given, granted, bargained, set over, sold and confirmed, and by these presents he, the said Richard, doth for himself, his heirs, executors, administrators and assigns, give, grant, bargain set over, sell and confirm, unto tbe said David Mackleñsh, his heirs, executors, administrators and assigns, forever, one tract of land laid out for Richard Cheney the twenty-fourth day of December 1661, called Cheney’s Hazard, lying in the county aforesaid, being about a mile west from the said Cheney’s plantation, where he then lived, beginning,” &c. “containing and laid out for one hundred acres of land more or less, now in the tenure and occupation of the said David Macklefish,” &c. “to have and to hold the land and premises aforesaid, unto him the said David, his heirs, executors, administrators and assigns, for ever, to the only proper use and behoof of him the said David, his heirs, executors, administrators or assigns, and to no other use, intent, or purpose whatsoever. And the said Richard doth hereby covenant, promise and agree, to and with the said David, his heirs, executors, administrators and assigns, the land and premises aforesaid, according to the metes and bounds aforesaid, for ever hereafter against all manner of persons elaims whatsoever, to warrant and defend. In testimony,” &o. Signed by the said Richard Hill, and by him acknowledged on the 4th of April 1?'2G, before two *-5 4 orille lordship’s justices of Anne Arundel county court.
    
      Martin, (Attorney-General,) for the, plaintiff,
    objected to this deed being read as a deed of bargain and sale, the consideration expressed therein not being money or blood, but land, which is not sufficient to constitute it a deed of bargain and sale. He said it might be read as a deed of feoffment if the original was produced and proved.-
    
      Sháaff, for the defendant,
    contended, that land is a good consideration,- that foreign money or bank notes would be good, and that the deed may be read as a bargain and sale. That it may be read as a feoffment, without proof of its execution, as the original record book wherein the deed is recorded is produced in court. He cited Gitlings vs. Hall, (ante.)
    
      Marlin, (Attorney-General.) The deed may be a deed of exchange, and not necessary to be recorded. It cannot be read as a bargain and sale. Land has never been considered as a sufficient consideration. Tobacco notes which pass current, and bank notes, are good considerations. To shew that it could not operate as a deed of bargain and sale for the want of a proper consideration, he cited 1 Bac. M. 463,469. Gilb. on Uses, 50, 5Í, 82, 112, 296. 2 Blk. Com. 338.
    
      Mi a off and Johnson, contra. The deed, upon the face, of it, purports to have been made for a valuable, consideration. It cannot operate as an exchange, for it has not the term exchange in it. Through the medium of the court of chancery this deed would be carried into effect. The equitable estate being in the bar-gainee, and the legal estate in the bargainor, a use would vest in the bargainee. The statute executes and transfers the use into the possession, and makes it a legal estate. If it is not a deed of bargain and sale, what is it? It is not a feoffment — it is not an exchange. There has been no decision where a bargain and sale has been set aside, because there was no jnoney oqnsUleration. Those cases cited turned ori the generality of expression. This can operate in no other way than as a bargain and sale, and can there be a deed regularly executed without operation? Before the statute of uses, 27 Hen. Vlll. this deed would Ijave raised a use effectual in .equity. It will therefore now raise a use, and the statute will transfer the possession. The s<\iue words which would raise a use at common law', will make a bargain and sale, which is a real covenant, on valuable consideration. 2 Inst. 672. in 2 Blh, Com. 838, it is said'there must be a pecuniary consideration.?? What is pecuniary consideration? It is not merely money — it is the value of money. A valuable consideration, means a recompense given. 8/iej). Touch. 218. There must be a monied or other valuable consideration. 8hep. Touch, 220. 1 Bac. M. 469, refers to | Co. Rep. 176, and and Coke says, no use can be raised upon a general consideration. It must be ¿‘money, or other good com-sideration paid or gi ven?’ — And it must not be ex pressed generally “valuable consideration.” It must mention particularly what the consideration is. In 22 "Finer, 202, the same principles are laid down. If a man sells lands for divers good considerations, it is not good unless there be an averment of what the consideration is. Tiiey also cited for the same purpose* Jeuk. 247 2 Stra. 1228. There has been no determination shewn where a deed is not good mentioning land as the consideration, or that a different consideration than money was void. The case in Coke says it must be money, or some other valuable consideration. And is not land a valuable consideration?
    Marlin, (Attorney General,} and Kilty, in reply. This deed is not necessarily a bargain and sale, because it can operate no other way. It may operate as a contract which a court of chancery would enforce. There are a number of contracts which a court of equity would carry into effect, on which the statute would not operate. In 2 Inst. 672, it is not said what other valuable consideration is meant. Consideration 
      o^blood may be intended. Nor does 8hep. Touch, state what other consideration'is meant It does not say the deed shall operate as a bargain and sale, if there is other consideration than money or blood. It may-no doubt operate as a covenant to stand seised. Bacon ¿refers to ali these- authorities, and he says, it must be a money consideration. In 22 Finer 202, it is said, that if the consideration is not expressed, “no use shall arise.”, The land given in exchange is nota valuable consideration, since no title passed in that land to the grantor in this deed, nor is this deed evidence that any such title has been made. The heirs of the bargain- or cannot be divested witiiout proper and apt words.
    Chase, Cb. J. It seems to bo taken for granted by the counsel, that, unless the deed can operate as a bargain and sale, it cannot operate at all. But the court think differently, upon inspecting the deed. It may operate as a feoffment, (there being words “give and grant.”) if livery of seisin can be proved, and there may be circumstances from which livery may be presumed.
    It cannot be a deed of bargain and sale without money consideration, or unless there are general words of consideration under which a pecuniary consideration may be averred. If the consideration is blood, marriage, or natural love and affection, it will operate as a covenant to stand seised, as in 2 Wilson 22, 23. If “divers good causes and considerations” are used, without mentioning any specific considera-iion, the party may aver what the consideration was. If money be averred as the consideration, it will make it a deed of bargain and sale.
    The court will lean towards giving validity to a deed. If it will not have operation in one way, it may operate in some other way.
    These positions wrere laid down in this court in the case of Paca and Forwood, fZHarr. and M‘Een. 175.J This, therefore, not being a bargain and sale, or deed directed by law to be enrolled, neither the record nor a copy is evidence.
    
      The record of a will not legally attested by three witnesses, K not legal amt admissible evnlcnce to prove time the testator claimed the land therein devised, and was in possession thereof claiming title to the same.
    Prom great length of possession of the land, the payment of taxes, &c. the jury may presume a conveyance from, the patentee, &c.
    The court are therefore of opinion, that the said enrolment is no evidence, as tiie said deed could not operate as a deed of bargain and sale, there hot being any money consideration expressed therein. The defendant excepte'd.
    2. The defendant then produced in court the original record bools brought into court by the register of wills for Anne-Arundel county, in which book was recorded a paper, purporting to be the will of David ¿Macklefish, dated the 6th of Juue 1737, whereby he devised the said land called Cheney’s Hazard, to his wife Martha, for life, with remainder in fee to his soij John, which said will appeared to have been signed, &c. in the presence of two witnesses. And he offered to read, from the said book, the record of said willj to prove that the said David Macklefish claimed the land in^question, and was in possession claiming title to it.
    Bui the plaintiff’s counsel objected to the reading of the record of the said will from the book aforesaid,
    Chase, Ch. J. The court are of opinion that the record is not legal and admissible evidence to prove that David Macklefish rl inied the land in question, and was in possession thereof, claiming title to the same, the said will not being attested by three witnesses. The defendant excepted,
    3. The plpintiff, further to prove the issue on his part, after having read in evidence to the jury the grant for the tract of land called Cheney’s Hazard, in the declaration mentioned, issued to Richard Cheney on the 30th of May 1663, as before stated, gave evidence to tiie jury that said patentee died sometime ,in or about the year 1704, leaving Richard Cheney, his eldest son and heir at law, who' was born on the 8th of March 1682-3, and who on the IQth of December 1707, married a certain Rachel Nicholson; that some time in or about the year 1709, they had a daughter of the name of Elizabeth, who in the year 1725 ? aiul before sbe was 21 years of age, marries! a certain Greenbury Cheney, by whom she had the said Zuchariah, the lessor of the plaintiff, who moved from the state of Maryland upwards of forty-two years past, to Juniata in the state of Pennsylvania, and where he hath since resided. He further offered evidence, that the said Richard, the son of the paten-tee, was in his life-time in possession of said land, and Jived on it, and that he died in or about the year 1713. He further gave evidence, that Elizabeth, the mother of the lessor of the plaintiff, died about the year 1751, in the life-time of her husband Greenbury and that he died about fourteen years past. He s lsp proved the ¡¡ease, entry and ouster, as laid in the declaration.
    Tiie defendant, in support of the issue on his pari, produced in evidence the entries on the original rent rolls, which are before inserted; and read in evidence the last will and testament of the said John Durbin, or Durden, mentioned in the said rent; roll, dated the '9tli of October 1715, whereby he devised the said land to bis wife Elizabeth, in the manner before mentioned. -He then produced .evidence to prove,, that the said Elizabeth Durbin, or Burden, after the death of her husband, on the 11th of April 1716, intermarried with a certain Samuel Burgess, and that on the 17th of February 1719, the said Samuel Burgess and Eli-mabeth his wife, executed a deed for the said land to one Patrick Sympson; and that Sympson and wife, on the 23d of November 1724, executed a deed for the same to one Richard Hill. He then offered to read in evidence to the jury, from the original land record hook of Anne-Arundcl county, a deed from the said Richard Hill, to one David Macklefish, for the said land, dated the 4th of April 1726, which the. court de» tcrmined could not be read in evidence. He then offered in evidence to the jury the last will and testament of the said David Macklefish, bearing date the 6fh of June 1737, devising the said land to his wife Martha, for life, with remainder in fee to his son John, which the court also rejected. He then offered proof that the said David Macklefish had several children, an<1 that Richard Macklejish was his grandson, and heir at, law, to whom the right to the said land descended; and that the said Richard Macklefish being seised of the said land as the law requires, on the 3d of March 1763, conveyed the same to Joseph Howard, by deed dated on that day. He then offered evidence to the jury, that one Richard Burgess was the eldest son and heir of the aforesaid Samuel Burgess, and Elizabeth his wife, and that the said Richard Burgess, on the 23d of April 1774, executed a deed for the said land to the said Joseph Howard. He then offered evidence to the jury to prove, that the widow of the said David Macklefish intermarried with one Ephraim Howard. And lie offered in evidence the last will and testament of the said Joseph Howard, hearing date the 10th of December 1777, whereby he devised the said land to Benjamin Howard, after the death of his widow; and that after the death of the testator the de-visees entered on the said land called Cheney’s Hazard.; that the widow of the said Joseph Howard is dead, and that the said Benjamin Howard is also dead; that after the death of the said Benjamin. Howard, a bill was filed in the court of chancery for the sale of his real estate for the payment of his debts, and that in the year 1794, a decree was made by the chancellor for the sale thereof; under which the land in question was sold to and purchased by Nicholas Harwood. He also offered evidence that John Watkins, the defendant in this action, was at the time of bringing the suit, the tenant of the said Nicholas Harwood. That the said David Macklefish in his life-time was in the actual possession of the land; that after his death it was possessed by the said Ephraim Howard, and that the said Ephraim, Howard is charged with the same on the Anne-Arundel county debt books from the year 1753 to 1760; that John Mackle-fish, the devisee named in the will of the said David, is charged with the same on the said debt books from the year 1760 to 1766; and that Joseph Howard is also charged from the year 1766 to 1771; and that since that time the said Joseph Howard, Benjamin Howard, and those claiming under them, have possessed the same, and paid the taxes and dues on it. That no person by the name of Cheney, from the year 1710 to the present time, had been in possession of the said land; but that the same-had been from that time held and possessed by the said John Durbin, and wife, or those claiming under them. That there are now no debt books for Anne-Arundel county to be found further back than 1753; and that the land records for Anne-Arundel county were burned in or about the year 1705.
    Whereupon the defendant prayed the opinion of the court, and their direction to the jury, that if they are of opinion from the evidence aforesaid, that the facts aforesaid stated by the defendant are true, then, although they are also of opinion that the several facts stated by the plaintiff are also true, that I hey may and ought to presume that the said Richard Cheney, the patentee, or Richard Cheney his son and heir at law, in due, form of law’conveyed the same land in the declaration mentioned to the said John Durbin or Durden.
    
    
      
      
         This deed was read as passing an estate for life of Samuel Burgess, it being admitted that the acknowledgment of the wife was defective.
    
   Chase, Cb. J.

The court are of opinion, that if the jury believe that Elizabeth Durbin, the devisee in the will of John Durbin, intermarried with Samuel Burgess, then there is a clear deduction of title, possession, &c. to presume a deed to John Durbin from the patentee, or from his son Richard; and the court give the direction to the jury as prayed by the defendant. The plaintiff excepted.

Yerdict and judgment for the defendant.  