
    Hollingsworth, et ux. vs. M‘Donald, et al.
    
    The habendum ofT "a conveyance £n fmist, after vesting a life-estate m ¿ P, us'-s ‘the following expressions: “Anti from' ami after her decease* that T P, and his heirs, fprcver, shall have and possess the said land and premises; amt in case of his, the said T death-, without fiawful issue, the said lands shall,revert to, and • he vesicdin,the said It. P, aiul_ her Heirs, for ever”— .1;Íeld, that T P took ta fee tail, with a reversion’ mi' fee to U I\
    In a conveyance of a ft’eeho d or J&gal estate, technical words are appropriated hy Saw to the creation, or limitation of' particular estates; for instance, to create an estate 'In fee the limitation must be to J S, and his heirs, and to ereate a fee tail, to ,T S, and the heirs of his hotly. The words do corpora .?wo, are indespensably neces'-ary, hut may be supplied by words to the sanie effect, plainly designate' ing or pointing out the body from whom the heirs inheritable are to issue or descend '
    •Whether the court-can, and how far they are at liberty, in expounding a deed of conveyance, creating or limiting a use or trust at common law, and not united to the possession by the'slatute of uses,, So reject the rules established by the common law, in‘ the construction of a conveyance of a freehold estate, and to give an exposition according to the intention of the parties as in a will?
    "Whether a tinst estate, or any but a legal estate can pass by a deed of bargain and sale?
    ■Whether a feme covert can pass her real estate in any other way than by a deed of bargain and.
    a trust estate is answerable to the creditors of cestui que trust}
    
    A feme covert cannot transfer or paia her interest in land to another, unless by fine, common recovery or deed executed and acknowledged according to the mode prescribed by the act of 1715, eh 47.
    
    The acknowledgment of. a deed hy a feme covert grantor, held %o be defective, the word being mitt d in the certificate of the acknowledgment, and no word of similar impoit or mean ing substitute 1 in its place; but held to be cured hy the act of 1807, ch. 52,
    A ben,» l adherence io the form of such certificate is not essentially requishe; and (he omission of words deemed essential can he supp iecl by the substitution of words equipollent, or of similar imporE and signification.
    A de wee of the chancellor is subject to his oontroul, only upon a bill of review, or a bill in the nature of a bill of review.
    A bill of review lies af er the decree is signed and enroll* d
    A hill in the nature of a hill or review lies after the decree is made, but before enrolment.
    A decree must be considered ns enrolled after it is signed by the chaucePor and filed by the re-
    A bill of review will only lie for two causes: Krror apparent on the decree, or for some matter relevant, existing at the time of the decree, and discovered since.
    ft bill of r< view cannot he ‘•upp'Wted for matter existing at the time of the decree and discovered . since, without affidavit of such nirtter, and the existence of it at the time of the decree, «o lay a founda'ion for app'ying ‘o the chancellor for his leave to file a bill of revi w, and obtaining such leave.
    On petition sugges ing pro.' r matter 'iipported hy affidavit as the ground for filing a bill of review, the chancellor exercises his fudgm nt on the propriety of int wfering or meddling with his de» eve* for the cause due used, and grant' or reams the app'ieation accordingly.
    As to the distinction between tiustd executed and executory.
    ■ Appeal from a decree of the court of chancery dismissing the bill of complaint. The material facts were these. —The complainant Rachel, (one of the appellants,) whilst she was sole, on the 21st of September 1790, was seized in fee. of the tracts of land called Rich Neck and Howard’s Timber Neck. A marriage settlement took place between the complainants, on the 21st of September 1790, and Lyde Goodioin was appointed trustee. This, settlement wag. as follows: “This indenture, made the 21st of September. 1790, between Jesse Hollingsworth, of the first part, Rachel. Lyde Parkin, of the second part, apcl Lyds Goodwin? of the third part;” and aftei: reciting the intended marriage between, the. r-akl Jesse and Rachel? stated, that the, said Jesse granted, &c. to the,said Lyde, and the said Rachel? with the consent and approbation of the said Jesse, granted &c. to the said Lyde, his heirs and assigns, all those, tracts of land called Rich Neck and Howard’s Timber Neck? 
      r' ¡:o have and to hold the said lands,” &c. “unto the slid Lyde Goodwin, his heirs and assigns, for ever. In trust nevertheless, and for the uses,” See. “That she the said lluvia shall have, hold, occupy, possess and enjoy, the said lauds, with the rents, issues and profits thereof, for and dur-ing the natural life of the said Rachel, and the same convert and apply to her separate use and benefit, without any let, trouble or impediment, from the said Jesse, in as full and ample manner, to all intents and purposes, as if she the said Rachel had remained a feme sole, and unmarried! and from and after her decease, that Thomas Parkin, and his hens', for ever, shall have and possess the said lands and premises; and in case of his the said Thomas's death, without lawful issue, the said lands and premises shall revert to, and be vested in, the said Rachel, aiid her heirs, forever,” & c. The marriage took effect, and on the 4th of January 1796 the complainants, together with Lyde Goodwin, executed a deed to Thomas Parkin, the son of the Female complainant by a former marriage, which purports to convey to him an estate iii fee simple in the said lands* and ivas acknowledged as follows: “Baltimore county, set» On this loth day of February 1796, personally appeared Jesse Hollingsworth and Lyde Goodwin before us the subscribers, two justices of the peace for Baltimore county, and severally acknowledged the aforegoing instrument of writing to be their act and deed, according to the true intent and meaning thereof. At the same time came Rachel, the wife of the said Jesse Hollingsworth, and being by us privately examined apart from and out of the presence and. hearing of her said husband, did acknowledge the aforegoing instrument of writing to be her act and deed, according to the intent and meaning thereof, and declared that she made and executed the same, and this her acknowledgment thereof, voluntarily and of her own free will and accord, without being induced thereto by threats of or ill usage from her said husband, or through fear of his displeasure.” This acknowledgment was signed by the justices. Parkin, the grantee, died in possession of the lands in 1797, of full age, and by his will devised the same in fee to his mother, one of the complainants. Certain creditors of Parkin and AH Henna filed a bill in the court of chancery against the complainants, under the devise to the mother as devisee of Parkin, or as hiá heir at law, stating that 
      :Parkin died seized in fee of the lands; that they were his 'creditors; that Parkin and MlKenna were insolvéiit; and . . • ■ • . - . Praying a sale óf the land. The complainants answered the bill; admitting Parkin tobe seized in fee of the lands, and that h’e devised the same to his mother, one of the complainants. A decree for a sale took place; S. Chase, junior, was appointed trustee for making the sale, who made a sale of párt of the lands, ánd made a report thereof to the chancellor, which was confirmed, by the consent of the complainants: After the sale was made; and the confirmation thereof; the complainants alleged, they had discovered that Parkin never was seized of the lands in fee, but that the estate in fee belonged to the complainant, Rachel; and that the deed from the complainants to Parkin, was not such a deed as passed the estate of a married wo* man. The prayer of the bill was, that the chancellor would decree the sales of the lands to bé null and void, &c. and for general relief, &c.
    Hanson, Chancellor, (October term 1805,) decreed, that. the bill be dismissed, &c. From this decree the complainants appealed to this court.
    The cause was argued at December term Í806,
    before Chase, Ch. J. Tilgiiman, Buchanan, Nicholson and Gantt, J.
    
      Key, for the Appellants,
    contended, 1. That the deed of the 21st of September 1?90, being a marriage settlement, vested the fee of the lands in Goodwin, as trustee,' for the sole and separate use of Mrs. Hollingstvorth, for life, of the rents, issues and profits thereof. 2. In trust for Parkin, an estate tail. 3. Iti trust of the remainder in fee to Mrs. Hollingstvorth, and her heirs. 4. That no power of disposition is given by the trust deed of the lands therein mentioned. 5. That the deed of the 4th of January 1796, does not pass any estate or interest from Mrs. Hollingsworth. 6. That an equitable estate can no more be conveyed by a feme covert, unless the law is complied with, than a legal estate can, if there is no power given in the trust deed pointing out a different mode. 7. That no act done by Mrs. Hollingstvorth does divest her estate in the lands.
    On the first, second, third, and fourth points, he insisted, that the trusts created by the deed of 1790, were not executed by the statute, and that where they were not, the terms of the trust must be governed bv the intention ° " of the grantor. That the legal effect and import, and the ¡articular meaning and operation ef ¡hal deed, created an estate tail in Parkin, and the lauds were not answerable for bis debts. To show that the words in the habendum of the deed created an estate la", he cited 2 Roll. Ab. tit. Grant, 65, pl. 25. Ibid. 68, pl. 28. Co. Litt. 21, a; and Shep. T. 52, 75, 103, 113.
    On the fifth point, he referred to the act of 1715, ch,. 47. Webster’s Lessee vs. Hall, 2 Harr. M'Henry, 19. Flanagan’s Lessee vs. Young, Ibid 38. Lewis’s Lessee vs. Waters, 3 Harr. & M'Hen. 430, Jacob’s Lessee vs. Kraner, 1 Harr. & Johns, 291. Peddicoart’s Lessee vs. Riggs, Ibid 293. Hawkins’s Lessee vs. Burress, Ibid 513. The Corporation, &c. vs. Hammond, Ibid 530. Heath’s Lessee vs. Eden, Ibid 751; and Greene vs. Muse & Ennalls’s Lessee, (ante 62.)
    
    On the sixth point, ha cited Shep. T. 507. Gilb. L. of Uses, 1, 2, 244. Watts vs. Ball, 1 P. Wms. 109. 2 Blk. Com. 337. Banks vs. Sutton, 2 P. Wms. 713. North vs. Champernoon. 2 Chan. Ca. 78; and Calvert’s Lessee vs. Eden, 2 Harr, & M'Hen. 336.
    Harper, for the Appellee,
    contended, 1. That this was substantially a bill of review, on the ground of new matter discovered, and must be so considered; and in this view of lhe bill, it is liable to four objections — 1st. It is not in time. 2d. It is without affidavit or leave. Mitf. 84. 3d. It is not for newly discovered matter. Chan. Pr. tit. Bill of Revietv. Mitf. 34. And 4th. If this could bo considered as newly discovered matter, it is still not within the rule. It must be matter which the party had previously no moans of knowing. Ibid.
    
    2. That Mrs. Hollingsworth’s acknowledgment of the deed of J79G, is sufficient, the act of 1715, ch. 47, not prescribing a formula which must be strictly pursued. Webster’s Lessee vs. Hall, 2 Harr. M'Hen. 19. Pattison’s Lessee vs. Chew, 1 Harr, & Johns. 587, (note.) Gitiings’s Lessee vs. Hall, in this court, on appeal.
    S. That Parkin, under the deed of 1790, had a remainder in fee simple, and not in tail; and that such a limitation, applied in a deed to a legal estate, either at common law, or by way of use, would give a fee simple* hé cited 3 Blk. Com. 107. Litt. Sect. 31. Co. Litt. 21, 27, b. Abraham vs. Twigg, Cro. Eliz. 478. Idle vs. Cooke, 2 Ld. Raym. 1146. 1 Roll. Ab. 838. Paramour vs. Yardly, Plow., 541. Litt. 258. Turnman vs. Cooper, Cro, ja. 476. Leigh vs. Brace, Carth. 343. S. C. 5 Mod. 266. S. C. 1 Ld. Raym. 101. S. C. 3 Salk. 337: That trust estates áre governed in their creátion, limita’ tion and extent, by all the sáme rules of construction# ■Miicli apply tti legal estates, he cited 2 Blk. Com. 337. Shep. T. 507. Duke of Norfolk’s case, 3 Chan. Ca. 48. Philips vs. Philips, 1 P. Wms. 35. Watts vs. Ball, Ibid 109. Banks vs. Sutton, 2 P. Wms. 713. Jones vs. Morgan, 1 Bro. Chan. Ca: 222. Philips vs. Bridges, 8 Ves. jr. 127. Bagshaw vs. Speneer, 2 Atk. 578. Garth vs. Baldwin: 2 Ves. 646. 2 Fonbl. 16. 1 Fearne, 166, 170. Glenorchy vs. Bosville, Ca. temp. Finch, 3. Ward vs. Bradley, 2 Vern, 23; Peacock vs. Spooner, Ibid 195. Dafforne vs. Goodman, Ibid 363. Webb vs. Webb, 1 P Wms. 132; Theebridge vs. Kilburne, 2' Ves. 237. 2 Fearne, 302; That admitting the acknowledgment to be ineffectual, and Parkin to' have only an estate tail; with remainder over in fee to his- mother,- until the interest during her life is at end, the estate is liable for Pclrkin’s debts; and that this application, if free from all other objections, is premature. He cited Lord hardwiche’s obser-* Nations in Pawlet vs. Belavdl, 2 Ves. 666.
    
      Martin: in reply; Í; Asr fo the q'ues'tioh wliat estafe Was created by thé deed of 1790, he cited Co. Litt. 21, a Roll. Ab. 838. Turnman vs. Cooper, Cro. Jac. 476. Bamfield vs. Popham, 1 P. Wms. 57, (n.) Perkins, sect. 173. 2, He contended that the' court of chancery determined what estate''passes1 under'the trusts; and whatever interest that court determines, to’ exist,- goes ás á legal estate át law; He cited 5 Bac. Ab. tit. Uses & Trusts, 308, 352, 354, 379, 386. Gilb. Law of Uses, 161, 162. 3. As to what is an executed, and wh'a't is an.' executorytrust, he’ cited 2 Fonbl. 50, (note.) Ibid 400, (note, q.) 4. As to the legal effect of the deed of 1796, he referred ttí the act of 1715, ch. 47 Wilson on Fines, 20. Nicholson’s Lessee vs. Hemsley, 3 Harr. & M'Hen. 409; and Sonday’s Case, 9 Coke, 127. 5. That if & feme covert hold® a separate estate under a marriage settlement, she cannot convey ia any other mode than that prescribed, by law, where there is none pointed out in the marriage settlement. ' ' * ,1 ' ° ... He cited 2 Bac. Ab. tit. Curtesy. Hearle vs. Greenbank, 8 Atk. 695. S. C. 1 Ves. 298. (Roberts vs. Dixwell, 1 Atk. 607. 6. Whether the appellants have a right to bring the, present bill, if considered as a bill of review upon discovery of new facts, or as an original bill, he cited Mitf, 35, 74. 1 Harr. Chan. Pr. 306. Hind’s Pr, 38. Anonymous, 3 Atk. 17. Norris vs. Le Neve, Ibid 26, 35, 38.
    
      Curia adv. yult.
    
   At the present term the opinion of the court was delivered by

Chase, Ch. J.

In this case, the first question to be decided by the court is, what estate vested in Thomas Parkin* jn the land in question, under and in virtue of the deed from Jesse Hollingsworth, and Rachel .Lyde Parkin, to Lyde. Goodwin, executed on the 21st of September' 1790?.

The question arles on the following words in the habcn~ dura of the deed; “And from and after her decease, that Thomas Parkin, and his heirs, for ever, shall have and possess the said lands and premises; and in case of his the., said Thomas’s death loithout lawful issue, the said lands shall revert to and be veste4 in the said Rachel, and her heirs, for ever.”

It is admitted that Lyde Goodwin, under this deed, took a fee simple in the lands in question, in trust for Rachel Parkin, during her life, and that the words before recited, would in a will create an estate tail in Thomas Parkin; but it is objected that those words in a deed will not create an estate tail, and that a fee simple passed to Thomas Parkin.

It is without doubt that the above words in a will would give a fee tail, because no technical words being necessary to create sucli estate. The intention expressed by the words of the testator must prevail if not inconsistent with some rule or principle of law; and the intention is plain here that Thomas Parkin was to take a fee tail.

In a deed or conveyance of a freehold or legal estate* technical words are appropriated by law to the creation of limitation of particular estates; for instance, to create an estate in fee, the limitation must be to J. S. and his heirs, and to create a fee tail, to J. 8. and the heirs of his body» It is established that the words eh corpore suo are not dispensably necessary, but- may be supplied by words equipollent or tantamount, plainly designating or pointing-out the body from whom the heirs inheritable are to issue or descend.

In this case the limitation is to Thomas Parkin, and his.. liei,rs, and in case of his death without lawful issue, to revert to Rachel Parkin, and- her heirs. These words are comprehended in one sentence, and contain the two requisites necessary to constitute an estate tail. The subsequent words, “in case of his death without lawful issue, qualify and restrain the generality of the precedent expressions, (to Thomas Parkin, and his heirs,) and point out, unequivocally and plainly, the heirs intended to inherit, and confine them to heirs of his body. Thomas ParkiU could not die without heirs, as long as he had lawful issue; and in this case the words lawful issue, heirs of his body, and issue of his body, as words of limitation, expressive of the quality of the estate to be granted, are of the same import and, signification,, and necessarily designate the heirs intended to inherit, and do convert the' fee simple created by the first words, into a fee tail; for Thomas Parkin could not have issue, or lawful- issue, but of his body.

The court being of opinion, that an estate tail vested in Thomas Parkin; with^the reybreion in fee tq Rachel Lycle Parkin, under the $wd; and/being also of opinion, that the said words, in a-jEonveyance of a freehold estate, would create a fee tan, it becomes unnecessary to decide the ques- ■ tion, so ably and learnedly discussed by the counsel-, how far the court is at liberty, in expounding a deed of conveyance creating'or limiting an use or trust at common law, and not united to the possession by the statute of ijses, to reject the rules established by the common law, in the construction of a conveyance of a freehold estate, and to give an exposition according to the intention qf the parlies, as in a will,

It is also unnecessary to decide on the nice and refined distinctions between trusts executed and 'executory; and the court gi.ve no opinion on those questions.

Jls to the operation of the,deed of 1796. It is unquestionable that a feme covert cannot transfer or pass her interest in land to another, urless by fine, common recovery, or deed executed and acknowledged according to the mode prescribed by the act of-1715; and the. question to be decided by tlie court is, whether the acknowledgment of the deed by Mrs. Hollingsworth is conformable to the said mode, and effectual to render the deed operative in law to convey her interest in the lands in dispute to her son Thomas Parkin?

The court are of opinion, that the acknowledgment is. substantially defective, the word “fear” being omitted in the certificate of the acknowledgment, and no word of similar import or meaning substituted in its place. The word fear, in that part of the certificate, means a particular specific kind of- fear, and signifies that she makes her acknowledgment without being induced thereto bjfear of ill-usage by her husband-. The true and genuine meaning of the words, “without being induced thereto by fear or threats of, or ill-usage by, her husband,” being fear of illrisage, threats of ill-usage, or actual ill-usage.

The court, in thus giving their, opinion, do not decide that a literal adherence to the form of the certificate is essentially requisite, and that the omission of words deemed essential,, cannot be supplied by*’(he substitution of words equipollent, or of similar import and signification.1 But the court are of opinion, that the deed is rendered valid and effectual to pass the land mentioned therein, to Thomas Parkin, in fee pimple, by the act of assembly, entitled, ‘ ‘An act for quieting possessions, and securing and confirming the estates of purchasers,” passed at November session 1807, ch. 52, it appearing .by the certificate of the acknowledgment of Jlachel Hollingsworth, that she made her acknowledgment privately and willingly, out of the presence and hearing of her husband.

As to the question, lohcther the present bill can be sustained?

The decree of the chancellor is subject to his control, only upon a bill of review, or a bill in the nature of a. bill of review.

A bill of review lies after,, the decree is signed and enrolled.

A bill in the nature of a bill of review lies after the decree is made, but before enrolment.

A decree must be considered as enrolled, after it is sign'ed by the chancellor, and filed by the register.

A bill of review will only lie for two causes — Erro? apparent on the decree, or for some matter relevant, existing at the time of the decree, and discovered since. Nothing appears on the proceedings on the first bill to support the position that there is error apparent on the decree, the deeds not being made a part of the proceedings.

It cannot be supported for matter' existing at the time. <pf the decree, and discovered since, without affidavit oí such matter, and the existence of it at the time of the decree, to lay the foundation for applying to the chancellor, for his leave to file a bill of review, and obtaining such leave,

On petition suggesting such matter, supported by affidavit as the ground for filing a bill of review, the chancellor exercises his judgment on the propriety of interfering or meddling with1 his decree, for the cause disclosed, anti grants or rejects the application accordingly. These requisites, for laying the foundation for the present bill, not having been complied with, the court are of opinion, that, the decree of the chancellor, dismissing the bill, be affirmed, with costs to the appellee,

DECREE A^EIRMED.  