
    Cheney Ingell et ux. versus George Nooney.
    In a deed the words “ grant, assign, bargain, and sell unto G. N. all and all manner of goods, chattels, debts, moneys and all other things of me whatsoever, as well real as personal, of what kind, nature and quality soever, to have &c. to the said G. N;, his executors, administrators and assigns forever,” were held not to pass real estate.
    This was a petition for partition, in which the petitioners claimed an undivided moiety of a tract of land. The respondent pleaded that he was sole seised of the demanded premises, and traversed the seisin of the petitioners ; upon which traverse issue was joined.
    The petitioners claimed in the right of the wife, as one of the heirs of Seth Phelps. The wife of the respondent was the only remaining heir. The respondent claimed by virtue of a deed made to him by Phelps ; and the only question raised at the trial was, whether the land (which was then under a mortgage) passed by the deed. This deed was dated on the 7th of May, 1817, and was not recorded until after the commencement of this process for partition. The terms of it were, “ Have granted, assigned and sold, and by these presents do freely and absolutely grant, assign, bargain and sell, unto the said George Nooney, all and all manner of goods, chattels, debts, moneys and all other things of me, the said Seth Phelps, whatsoever, as well real as personal, of what kind, nature and quality soever.” — “ To have and to hold the same and every part and parcel thereof unto the said George Nooney, his executors, administrators and assigns forever.” At the time when this deed was executed Nooney gave a bond to Phelps with condition, among other things, that he would support Phelps during his life, and certain personal estate of Phelps, including a still-house and tubs for the distillery, were valued and inventoried by appraisers at the request of Phelps and Nooney. Phelps, on the same 7th day of May, by a deed which contained the words in general use for the conveyance of land in fee, and which was recorded on the 16th of May, conveyed to Nooney another tract of land adjoining the land described in the petition, or only separated from it by a road. Soon after the 7th of May, Nooney removed into the house standing on the land conveyed as last mentioned, and Phelps removed from the land described in the petition, into the house with Nooney, and lived with him until the time of his death in October following. Phelps was in a feeble state of health and unable to attend to business during die year 1817, and Nooney continued in the occupation of the land described in the petition, from the 7th of May until the time of the trial. After the death of Phelps, Nooney took out letters of administration on his estate, and the land in question was shown to the appraisers as the estate of Phelps, but no inventory was ever returned into the probate office.
    A verdict was taken for the tenant by consent, which was to be set aside and a verdict was to be entered for the petitioners, if the Court should be of opinion that the land did not pass by the deed first mentioned.
    
      Bliss senior and Lathrop, for the petitioners,
    contended, that if the deed was to be construed by itself, it was not sufficient to pass real estate. The words, “ grant, assign, bargain and sell,” would answer to pass either real or personal estate, but they are not the usual words for conveying real
    
      estate. The only expression relating to real estate is <£ things real" ; but these words are qualified by the words “ goods, chattels, debts, moneys,” with which they are connected, and so will pass things ejusdem geneiis only, and not a fee simple. Tanner v. Morse, Ca. Temp. Talb. 284 ; Rawlings v. Jennings, 13 Ves. 39 ; Campbell v. Prescott, 15 Ves. 507 ; Markant v. Twisden, 1 Eq. Ca. Ab. 211, pl. 22 ; S. C. Gilb. Eq. Rep. 30; Vin. Abr. Devise, O, b, 9 ; Newland v. Majoribanks, 5 Taunt. 268 ; Roe v. Yeud, 2 New Rep. 220 ; Cliffe v. Gibbons, 2 Ld. Raym. 1324 ; Timewell v. Perkins, 2 Atk. 102 ; Doe d. Bunny v. Rout, 2 Marsh. 397 ; Grayson v. Atkinson, 1 Wils. 333 ; Trafford v. Berrige, 1 Eq. Ca. Ab. 201, pl. 14 ; Jackson v. Vanderspreigle's Executor, 2 Dallas, 142 ; Thompson v. Pearce, 1 Brod. & Bing. 25 ; Payler v. Homersham, 4 Maule & Selw. 423 ; Morris v. Wilford, 2 Show. 46. The words ££ to have and to hold to G. N., his executors, administrators and assigns forever,” would convey an estate for life only. Even in a will they would not carry a fee simple. It is clear then that the grantor intended to c.onvey only chattels real and chattels personal.
    This construction is corroborated by other circumstances m the case, if they may be taken into consideration. These circumstances show that the respondent was acquainted with the forms of conveying and securing a title to land, and that he did not regard this instrument as a conveyance of real estate.
    
      E. H. Mills, for the respondent.
    The grantor made use of apt words, although not the most technical, for the conveyance of the real estate in question. He had nothing to convey but an equity of redemption; the fee was in the mortgagee. The words, “ grant, assign, bargain and sell,” are commonly made use of in our conveyances of land, and are more apt for passing real than personal estate. No word is more comprehensive than the word thing, and the coupling of real with it shows an intention that something more than personal estate should pass. Most, of the authorities on which the respondent relies have been already cited ; and it is believed that in all of them there is something to show the inlentioi . In the case of Hogan v. Jackson, Cowp. 299, a devise of “ all the remainder and residue of all the effects, noth real and personal, which I shall die possessed of,” was held to pass a fee simple. The words in the present case are not confined by the habendum, for it is not a question how great an estate is conveyed ; and whether a fee, or only an estate for life passed, the respondent is to be protected against this petition.
    The opinion of the Court was read at May term 1824, in Hampden, as prepared by
   Parker C. J.

This case depends upon the construction of the deed of Seth Phelps to the tenant Nooney, under which he claims to hold the land which is described in the petition for partition. The deed, after setting forth a sufficient consideration, describes the property intended to be conveyed, in the following terms, &c. [as before.]

We are to ascertain from the words of this deed itself, whether it was the intention of the” parties to pass the real estate in question by it. The words are singularly chosen for that purpose, for the effect would be to pass the most important subject of the conveyance by general terms, without any description, after having with more particularity conveyed personal estate and choses in action; which is not a natural or usual mode of conveying real estate. The general clause would seem to have been chosen with a view to embrace other things of a like nature with those which had been mentioned, but such as might not have been supposed to pass under the words there made use of. £C All my-goods, chattels, debts, moneys and all other things whatsoever,” would certainly not pass real estate ; for the sweeping clause at the end of the sentence would embrace only things ejusdem generis with those which had been mentioned before. The words real or personal added to this general clause, cannot, we think, in a deed, extend the grant to land, though it might embrace chattels real, such as leasehold estates, if there had been any such in the possession of the grantor.* But there are other parts of the deed to be taken into view "n giving its construction. The habendum is to the grantee, “ his executors, administrators and assigns ” ; these are the usual words of limitation in the conveyance of chattels or personal property ; and though they would not be conclusive evidence oí the intent, standing by themselves, as the parties may have been ignorant of the force of legal terms ; yet as on the same day, a deed of real estate, in proper form and with proper words of limitation, was made by the grantor to the grantee, it may be presumed that had the deed in question been intended to pass real estate, proper words would have been used to insure the title. The word forever, at the end of the habendum, shows an intent to make an absolute conveyance, unlimited in its nature, of whatever was considered as embraced in the deed ; and yet the words of limitation are such as to give the grantee only an estate for life, if land was the subject. In the case in Cowper, 299, referred to by the counsel for the tenant, the words, “ all effects, real and personal, ” in a will, were construed to pass real estate in fee ; but this labored much with the court, and it was by the aid of other words in the will showing an intention in the testator to pass all his estate, that they came to this conclusion. It is well known that much more latitude is taken in the con struction of wills than of deeds. For though both are to be construed according to the intent of the parties, to be gathered from the instrument itself, yet as wills are more frequent ly written by unskilled persons than deeds, and as they constitute a gift rather than a contract, and perhaps more especially, as they have been more constantly the subject of chancery jurisdiction, equitable rules of construction have been more frequently applied to them than to deeds.* But even m the case of wills, words of very general import have not unfrequently been restrained in their operation, by preceding words with which they were connected.

Thus in the case of Timewell v. Perkins, 2 Atk. 102, a clause in the will ran thus ; “ Item,, all those my freehold lands and hop-grounds, with the messuages or tenements, barns, &c., now in the tenure and occupation of the widow Leach, and, all other the rest and residue and remainder of my estate, consisting in ready money, plate, jewels, leases, judgments, mortgages, &c., or in any other thing whatsoever or wheresoever,, I give,” &c., and it was held, as to the “ residue,” that real estate did not pass. Mr. Justice Fortescue, who tried the cause, said, ‘‘The word estate itself indeed may include as well real as personal; yet when the testator has expressed himself by such words as are applicable to personal only, I cannot intend he meant the real estate. Whatsoever and wheresoever must be confined to the things antecedent.” And he says “ although it would have been stronger, if the word real had been added, yet however this will not do, unless there are some words that show the intention to pass the real estate.”

There are other considerations which have been presented to us in argument, which go strongly to show that this deed was never intended by the parties to convey real estate. On the same day a deed of conveyance in proper form, containing a description of the land conveyed, was executed. How happens it that another tract of land should have been conveyed in an instrument principally intended for-the conveyance of chattels and choses in action, and by which the land can pass only by implication under the term thing ? This word, t0 be sure, is of extensive signification, and in common parlance may intend all matters or substances in contradistinction to person; but it is the first time we remember to have seen it used in a legal instrument, to express a grant of land. A deed of ££ all things whatsoever, whether real or personal,” without any description of, or allusion to, any particular tract of land, we hardly think would be sufficient to pass lands and tenements. A description of the land conveyed, either general or particular, seems essential to a conveyance of real estate.

Neither has the tenant treated this as a conveyance of land, for he did not procure it to be recorded, as he did the deed of the other lot of land which was executed on the same day. And he showed this land to the appraisers of Seth Phelps’s estate, as part thereof, after his decease. These circumstances, to be sure, cannot be taken into view by us in construing the words of the instrument, but they show that the equity of the case is perfectly consistent with the law.* His possession of the land has not a contrary tendency, as Seth Phelps lived with him after the execution of the deed ; and as the tenant, his wife being an heir, would naturally continue the possession until called to surrender it by the coheir.

Verdict set aside and a verdict entered for the petitioners, and judgment that partition he made. 
      
      
        Cavendish v Cavendish, 1 Bro. C. C. 467 ; Sutton v. Sharp, 1 Russ. C. C. 146 ; Collier v. Squire, 4 Russ. C. C. 467 ; Kendall v. Kendall, 4 Russ. C. C. 360 ; Tucker v. Clisby, 12 Pick. 25, 26 ; 2 Wms's Exec. 746.
     
      
       See Doe v. Meyrick, 2 Tyrwhitt, 178 ; Treasurers v. Lang, 2 Bailey, 430.
     
      
       The word u effects” will not carry real estate unless there be other words in the will showing that to be the intention. Doe v. Dring, 2 Maule & Selw. 448.
     
      
       As to the force of intention, in the construction of deeds, see Cruise’s Dig. tit. 32, c. 23, § 2. Throckmerton v. Tracy, Plowd. 154. The intent directs gifts and grants, more than words. Id. 160 ; Jackson v. Delacroix, 2 Wendell, 438 ; Shep. Touch. 87 ; Dormer v. Parkhurst, 3 Atk. 136 ; Earl of Clanrickard’s case, Hob. 277 ; Jackson v. Blodget, 16 Johns. R. 179 ; Leonard v. Hall, 1 Pick. 31 ; Bridge v. Wellington, 1 Mass. R. 219.
      On the influence of intention in the construction of devises, see Ram on Exposition of Wills, 1, 2, (Law Libr. No. 24, p. 1); Doe v. Laming, 2 Burr. 1112; Harvey v. Aston, 1 Atk. 377 ; Watson v. Foxon, 2 East, 42 ; Thellusson v. Woodford, 4 Ves, 341 ; Annable v. Patch, 3 Pick. 360.
      But the intent must be consistent with the rules of law Cruise’s Dig. tit 
        32, c. 23, § 3 ; Doe v. Laming, 2 Burr. 1112 ; Hollingsworth v. Frye, 4 Dall 347 ; Plowd. 162 b ; Corbet's case, 1 Rep. 85 b ; Pybus v. Milford, 1 Ventr. 379 Bridge v. Wellington, 1 Mass. R. 227 ; Leonard v. Hall, 1 Pick. 31.
     
      
       See 2 Bl. Com. 381 ; Bagshaw v Spencer, 2 Atk. 380 ; Ram on Exposion of Wills, 1, (Law Libr. No. 24, p. 1).
      
     
      
       See Choate v. Burnham, 7 Pick. 274. It is held in Ringgold v. Ringgold, 1 Harr. & Gill, 74, that a court cannot be aided in the construction ck an agreement by the acts which the parties have done under it.
     