
    Abigail Wallis, Executrix, versus Jonathan Wallis.
    If one, for a valuable consideration, bargain and sell land with warranty, to hold from the grantor’s death, no action lies, during the grantor’s life, to recover the consideratio i money paid; although an action on the covenant may lie after the death of the grantor, if a title to the land be not made to the grantee or his heirs.
    If such bargain and sale be made by a father to a son, the law will presume a consideration of natural affection from the consanguinity of the parties, in addition to the valuable consideration expressed in the deed, and construe it a covenant of the grantor to stand seised to his own use during his life, and after his death to the use of the grantee.
    This was an action pending in Middlesex, brought by the plaintiff’s testator, Jonathan Wallis, Jun., and upon his decease, prosecuted by the plaintiff, executrix of. his last will. The declaration was assumpsit for 400 dollars, money had and received to the use of the plaintiff.
    At the last October term at Cambridge, the parties agreed to submit the cause to the Court upon a statement of facts; purporting that on the 11th day of June, 1805, the defendant, by his deed of that date, for the consideration of four hundred dollars expressed in the deed, gave, granted, sold, and conveyed, one fourth part of certain lands described in the deed, to the original plaintiff, (who was the defendant’s son,) his heirs and assigns; to haw and to hold after the death of the grantor; and covenanted with the grantee that *he, the grantor, was lawfully seised in fee of f * 136 J the premises, that they were free of all encumbrances, except the grantor’s right to the free improvement of said lands and buildings during the term of his natural life, and that he would warrant and defend the same to the grantee, his heirs and assigns, forever, after the decease of him, the grantor, to hold as aforesaid; that the defendant refused to permit the said testator to enter under said deed, and that the said testator never did enter the premises so supposed to be conveyed by force of said deed ; and on the first day of December, 1806, brought this action to recover back the said sum of four hundred dollars, the consideration money paid, upon the ground that nothing passed by said deed.
    If the Court should be of opinion that the plaintiff can maintain this action, the defendant agreed to be defaulted; otherwise the plaintiff agreed to become nonsuit.
   The cause was submitted upon this agreement without argument, and being continued nisi, the opinion of the Court was now delivered by

Parsons, C. J

We do not know any legal principles, on which this action can be supported. The money was not paid through mistake, being supposed to be due when it was not; it was not obtained by deceit, fraud, imposition, or oppression; nor was it paid upon an executory contract, which has happened to fail, or which has been, or might be, lawfully disaffirmed by either party. The most that can be urged for the plaintiff is, that nothing passed by the deed, as it was intended to convey a freehold in futuro ; but .he voluntarily paid the money for such a conveyance, and took a covenant from the grantor, that, after his death, the grantee and his heirs should have the land; which covenant, at the grantor’s death, may be broken, and the foundation of an action for damages, if a title to the land be not made to the grantee or his heirs.

Hastings and Bigelow for the plaintiff.

Dana for the defendant.

But, fortunately for the grantee, he is mistaken in the construction of his deed. For, although it is true that by a common law conveyance a freehold cannot be conveyed in futuro, yet by a covenant to stand seised to uses, such conveyance can be effected, And every deed ought to be construed, if it be legally [ * 137 ] possible, so as to effect the intent of the parties. * In this case, beside the valuable consideration expressed, a consideration of natural affection may be averred as consistent with it, for the consanguinity of the parties, though not mentioned in the deed, is agreed in the case. The intent of the parties is clear, and there is a covenant of the grantor, that after his death the grantee shall have the land. This conveyance is therefore to be considered, in law, as a covenant by the grantor to stand seised of the land, to his own use during his life, and after his decease to the use of the grantee and his heirs. And upon the execution of the deed, the grantor was tenant for life, and a remainder in fee was vested in the grantee.

The plaintiff must be called.

¡XjT Vide Milbourne & Ux. vs. Assignees of Simpson, 2 Wills. 22. Roe ex dem. Wilkinson vs. Tranmer & Al., 2 Wills. 75. — Shep. Touchstone, 82, 83. — Co. Litt. 49, a. — 1 Sid. 25. — 2 Vent. 318. 
      
      
         [See Phillips's Ev., 8th ed. 762, and note. — Ed.]
     