
    
      L. P. Hext v. M. P. Jarrell.
    
    A deed which “granted,” &c. to the tenant and her children, so long as they or either of them should survive, “ the plantation” on which she then resided, “together with the house, outhouses, anjl appurtenances thereunto belonging,” • “ with as much land adjoining the improved plantation,” &c. as they or either of them might “ have occasion to occupy for cultivation,” “ and as much timber for plantation purposes as might be necessary,” was held not to convey a life estate in the whole tract (wood and cultivated) of which the “ improved plantation” formed a part.
    The term plcmtaimi has no precise, fixed and definite single meaning; it may mean the whole body of land (wood and cultivated) which a man uses together for agricultural purposes, or it may mean only that part which is cultivated. The sense in which it is used, depends very much on the context, or the subject matter to which it is applied.
    
      Before Frost, J. at Barnwell, Spring Term, 1848.
    This was an action of trespass.- The pleas were the general -issue and liberum tenementum.
    
    The plaintiff proved a trespass. Both parties claimed under Robert Mucklerath, who, it was proved, prior to 1797, under a survey and plat made for him in 1785, was in possession of a tract of two thousand acres, situate on both sides of the lower Three Runs, which divided the tract nearly into equal parts. The alleged trespass was on the part lying on the eastern side of the stream, and consisted in the defendant going into a field claimed by the plaintiff, which his ne-groes were clearing, and ordering the plaintiff’s negroes to stop their work and leave the land. Robert Mucklerath died in possession of the land, leaving his widow and five or six children surviving him. The widow married Daniel Miller, and had two more children, who are living, one of whom is the wife of the defendant. The widow of Mucklerath continued in possession until she died, with her children, who afterwards remained on the land many years, and successively moved off, leaving the defendant and his wife in the sole possession. The plaintiff produced in evidence a conveyance from Angrrs Patterson to himself, for 288 acres, part of the tract east of the stream, dated the 20th September, 1843; and a conveyance from the sheriff to Angus Patterson, of the entire tract of two thousand acres, under a judgment and execution against Juan, executor of Isaac Bourdeaux, dated the 8th April, 1828. It was proved that the wife of Juan and Isaac Bourdeaux were the only heirs of Daniel Bour-deaux. The plaintiffs also produced in evidence a deed from Daniel Bourdeaux to Daniel Miller and Jane his wife, by which Daniel Bourdeaux grants, bargains, covenants, &c. with Miller and his wife, that Jane Miller and her children, as well those of Robert Mucklerath as of Daniel Miller, shall have the “ use, possession, occupation and enjoyment of the plantation on which she now resides, on the east side of the lower Three Runs, together with the houses, out-houses, and appurtenances thereunto belonging,” “with as much land adjoining the present* improved plantation and buildings, fields and settlement, as she or they may hereafter wish to clear and cultivate, in addition to the present clearing, for her and their own planting, collectively and individually,” “ so long as such children, or either of them, shall survive, and collectively or individually shall choose to remain in the occupancy, enjoyment and possession of the premises aforesaid, after the death of the said Jane.”
    The right of the plaintiff to recover, turned on the construction of this deed ; and it was held that it operated as a lease of the plantation or tract of land, on the east side of the stream, during the joint lives of Jane Miller and of her children, and of the survivor of them ; and that the defendant’s wife, in common with the other surviving children of Jane Miller, had an estate for life in the said tract of land, without impeachment of waste.
    
      The plaintiff submitted to a non-suit, and moved the Appeal Court for leave to set it aside, on the ground that his Honor’s construction of the old deed from Bourdeaux was erroneous.
    Bellinger, for the motion.
    
      Bauskettj contra.
    SOUTH CAROLINA, ) Barnwell District. \ COPY DEED.
    
      To all to whom these presents shall come, greeting:
    
    Whereas, by a deed of covenant, entered into between Daniel Bourdeaux, of the State and District aforesaid, of the one part, and Jane Mucklerath, the widow of Robert Mucklerath, deceased, and adriiinistratrix of the estate of the said Robert Mucklerath, of the other part, bearing date the 19th May, in the year of our Lord 1797, against whom, as administratrix aforesaid, the said Daniel Bourdeaux had obtained a judgment at a Court of Common Pleas holden at Orangeburgh, for April Term, in the year of our Lord 1795, which judgment was entered up, and execution thereon issued the 13th April, during the same term, and before the division of the district of Orangeburg took place. That the said judgment hath, since such division, been revived at Barnwell, and execution thereon issued the 30th March, 1801, for two thousand one hundred and forty-two pounds, six shillings, sterling money, equal to nine thousand one hundred and eighty-one dollars and two sevenths.
    And whereas, in and by the said deed of covenant, among other tilings, it is therein stipulated, that notwithstanding the said judgment and execution, and the sale to be made in virtue of the same, of the property of the said estate. That nevertheless, the said Jane Mucklerath shall not be divested of, “ but shall continue to enjoy, during her natural life, quiet and peaceable possession of the plantation on which she now resides, on the east side of said stream,” (the Lower Three Runs,) “ together with the house, out-houses, and appurtenances thereunto belonging, as also the use of as much land on the east side of said stream, during her natural life, as she may for her own individual purposes have occasion to cultivate
    
    Now know ye: That I, the said Daniel Bourdeaux, for divers good causes and considerations me therein moving, and also for the consideration sum of one dollar, current lawful money of the United States of America, to me in hand well and truly paid by Daniel Miller and Jane his wife, formerly Jane Mucklerath, at and before the sealing and delivery of these presents, the receipt whereof I do hereby acknowledge, have granted and bargained, and by these presents do grant, bargain, covenant, engage and agree, to and with the said Daniel Miller and Jane his wife, formerly Jane Muckle-rath, in manner following: That is to say, that the use, possession, occupation and enjoyment of the premises aforesaid, as are referred to in said deed of covenant of 19th May, 1797, shall not be limited to the life time only of the said Jane, as the said deed sets forth, but that such use, possession, occupancy and enjoyment thereof, shall be extended beyond the natural life of the said Jane, to the life times of the children of the said Jane by her former husband, Robert Mucklerath, deceased, namely: Margaret Thomson, widow, Elizabeth, John, Polly and Charlotte Mucklerath, as also to the children of the said Jane by her present husband, Daniel Miller, namely: Cornelia and Maria Miller, so long as such children, or either of them, shall survive, and collectively or individually shall choose to remain in the occupancy, enjoyment and possession of the premises aforesaid, after the decease of the said Jane, with as much land adjoining to the present improved plantation and buildings, fields and settlement, as he, she or they, at any time hereafter, may wish to clear and cultivate in addition to the present clearing, for his, her or their own planting and cultivating, either collectively or individually. But it is not understood, nor is it the intent and meaning of these presents, that the extension granted by this agreement beyond the natural life of the said Jane, shall go further than what relates to the plantation, houses, out-houses, and other improvements on the said plantation on the east side of the stream of the Lower Three Runs, with as much land adjoining to the present settlement, as the children of the said Jane by her former husband, Robert Mucklerath, deceased, as also by her present husband, Daniel Miller, during their and each of their respective life times, may have occasion to occupy for cultivation, with as much timber for plantation purposes as may be necessary. And to enjoy the privileges of grinding at the Grist Mill on the said Lower Three Runs, free of toll, at all times when the said Mill shall be in a state of repair capable of grinding. For full and ample performance of the foregoing covenants, stipulations and agreements entered into by the said Daniel Bourdeaux, with the said Daniel Miller, and Jane his wife, in addition and supplementary to those before, by him, entered into with the said Jane, while widow of Robert Mucklerath, deceased, on the 19th day of May, 1797, already mentioned and referred to, I, the said Daniel Bourdeaux, do hereby bind myself, my heirs, executors and administrators, unto the said Daniel Miller, and Jane his wife, his and her heirs, executors and administrators, in the penal sum of three thousand dollars, current lawful money of the United States of America.
    In testimony whereof, I have hereunto set my hand and seal, this 10th of January, in the year of our Lord one thousand eight hundred and five, and in the twenty-ninth of the ( sovereignty and independence of the United States of America. (Signed)
    DANIEL BOUKDEAUX, [l. s.]
    Signed, sealed, and delivered ) Margaret Shields, in the presence of ) Peter Provost.
    Proved before Gideon Hagood, J. P. by Peter Provost, 13th September, 1805, and recorded in book 12, Register’s Office, Barnwell district, page 264, October 28, 1805.
   O’Neall, J.

delivered the opinion of the Court.

In this case, it has been supposed that the defendant, in the right of his wife, has an estate, for her life, in the whole tract of land lying east of the Three Runs. This depends upon the construction of the covenants by which Mr. Bour-deaux gave to Mrs. Mucklerath (afterwards Mrs. Miller) and her children, the use and possession of the plantation, on the east side. The term plantation has no precise, fixed, and definite single meaning — it may mean the whole body of land, (wood and cultivated,) which a man uses together for agricultural purposes ; or it may mean only that part which is cultivated. The sense in which it is used, depends very much on the context, or the subject matter to which it is applied.

In the recital of the covenant before us, a previous covenant is recited, whereby it was agreed that “ Jane Muckle-rath shall not be divested of, but shall continue to enjoy, during her natural life, quiet and peaceable possession of the plantation on which she noto resides, east of the said stream,” (the Lower Three Runs,) “ together rvith the house, outhouses, and appurtenances thereunto belonging, as also the use of as much land, on the east side of the said stream, during her natural life, as she may, for her oion individual purposes, have occasion to cultivate.” These latter words shew the sense in which the term plantation was used. It was not used in its broadest sense, but in the narrower one, by which it meant the cultivated land.

The covenant before us was intended, as it expresses, to extend the interest given to Jane, to her children by her former husband, Mucklerath, and also by her then husband, Miller, during their lives. It says that the “ use,possession, occupation and enjoyment,” shall not be limited to her life, but that such use, possession, occupation and enjoyment shall be extended to the lives of her children, or as long as they choose, collectively or individually, to retain the possession. Do these words impart a life estate, in the whole of the land east of the Three Runs? Surely not; they give a very qualified interest of occupancy. But the instrument does not stop there. It says the possession is to continue so long as such children, or either of them, shall survive, and collective- ’ ly or individually, shall choose to remain in the occupancy, enjoyment and possession of the premises aforesaid, after the decease of the said Jane, with as much land adjoining' to the present improved plantation and buildings, fields and settlement, as he, she or they, at any time hereafter, may wish to clear and cultivate, in addition to the present clearing, for his, her or their own planting and cultivating, either collectively or individually.” How, after reading these words, any one can doubt that the use, possession, occupation and enjoyment of the plantation, covenanted to be allowed to Jane and her children, can be other than the cleared, cultivated and improved plantation or settlement, it is'hard for me to understand. The words giving it that confined meaning, are used; and then the covenantor tells the covenantees, in addition to this narrow use, I allow you to clear and cultivate, adjoining the improved settlement, as much land as you, for your own planting and cultivating, may need.

The instrument does not, however, stop at this plain expression of intention. It is stated by it, but it is not understood, nor is it the intent and meaning of these presents, that the extension, granted by this agreement, beyond the natural life of the said Jane, shall go further than what relates to the plantation, houses, out-houses and other improvements, on the said plantation, on the east side of the stream of the Lower Three Runs, with as much land adjoining to the present settlement, as the children of the said Jane, by her former husband, Robert Mucklerath, deceased, as also by her present husband, Daniel Miller, during their and each of their respective life times, may have occasion to occupy for cultivation, with as much timber for plantation purposes as may be necessary.” These words clearly shew that the life use, covenanted to be granted, was of the cleared land and buildings. Incidental thereto, the covenantor agrees they may clear adjoining as much as they may have occasion to occupy for cultivation, and with it, that they should have as much timber as was necessary for plantation purposes. These latter words, about the timber, plainly negative the notion, that a life estate was intended to be granted of the whole land, east of the Runs. If that had been so, no such covenant was necessary. For the law gave to the tenant, fire bote and fence bote.

Having gone through the covenant, and ascertained its meaning, how stands this case ? The old settlement has been abandoned, the defendant is now in possession nearly half a mile from it. He purchased from Mr. Patterson the reversionary interest in about 300 acres, including the old and the present settlement. He himself laid out the line, separating him from the balance of the land. For Mr. Patterson told him to lay off as much as he wanted. Beyond this line, the plaintiff is in possession, under a purchase from'' Mr. Patterson. When his clearing approached the defendant’s line, he (the defendant) stopped it, and this is the trespass complained of. Stating the case, in this way, it is plain the defendant has no defence. He has the old and the new settlement, with much adjoining land. He has not entered upon the land to clear it. He has undertaken to say to the owner, the plaintiff, who, for the purposes of this case, is Bourdeaux, the covenan tor, under whom the defendant claims, you shall not clear your own land. To allow this, would make the tenant greater, in law and estate, than his landlord! Such an absurdity cannot exist. The most the defendant could ask, would be, as was done on the first trial, to leave it to the Jury to say, whether the land, which the plaintiff was about to clear, was necessary for the cultivation of the «defendant’s wife, or whether the timber was necessary for her plantation purposes. This, however, is entirely for the defendant’s advantage. If he does not choose to avail himself of it, his trespass is unjustified, without excuse, and without mitigation.

The motion to set aside the non-suit, is granted.

Richardson, J. and Evans, J. concurred.

Frost, J.

dissenting.

By the deed, Daniel Bourdeaux does “ grant, bargain, covenant, and agree” with Daniel Miller and Jane, his wife, that the use, possession, occupation, and enjoyment of the premises aforesaid, as are referred to in the deed of covenant of the 19th May, 1797, shall be extended beyond the natural life of the said Jane, to the life times” of her seven children, named in the deed — so long as such children, or either of them, shall survive, and collectively or individually, shall choose to remain in the occupancy, enjoyment, and possession of the premises aforesaid, after the decease of the said Jane.”

It is admitted, by the judgment of the Court, that this covenant creates a lease; and it is not disputed that the term granted is during the life of Jane Miller, and the joint lives of her seven children, and the life of the survivor of them.

The dissent relates to the quantity of land leased. By the Circuit Judge it was held that the lease was of the whole tract of land, on the east side of the stream 5 with the right to clear as much land, adjoining the settlement, as the lessees might have occasion to cultivate. By the Court, it is held that a lease for life is granted of the “ settlement,” or cleared portion of the land only; with the right to clear as much land, adjoining the settlement, as the lessees might have occasion to cultivate.

The “ premises aforesaid,” which, by the covenant of May, 1797, were leased to Jane Miller, during her life, are described, in the recital of the deed, as “ the plantation, on which she (Jane Miller) now resides, on the east side of the said stream, (the Lower Three Runs,) together with the houses, out-houses and appurtenances, thereunto belonging; as also the use of as much land, on the east side of the said stream, during her natural life, as she may, for her individual purposes, have occasion to cultivate.”

All after the words “ together with,” is clearly an enlargement, and not a restriction, of the grant of the “ plantation.” If the description ended at the words as also,” can there be any doubt the whole tract of land, on the east side of the stream, would be comprehended 7 These terms of description daily occur in conveyances, and are, universally, without doubt or question, construed to include, not merely the settlement and clearing, but the whole tract. Plantation” is co-extensive with tract of land; the only difference being that the former is a settled tract. If one should covenant to convey “ the plantation, on which J. M. resides,” all men would agree that the tract of land, and not the settlement, was intended.

The “premises aforesaid,” which were granted to Jane Miller, during her life, by the deed of May, 1797, were, by the deed of 10th January, 1805, under which the defendant claims, granted to the children of Jane Miller, during their joint lives, and the life of the survivor-of them. The only difference is, that the “ use of as much land, on the east side of the stream,” as she might have occasion to cultivate,- was granted to Jane Miller; while to her\children is granted the use of as much land, adjoining the present improved plantation, as they may wish to clear and cultivate, in addition to the present clearing.” But this difference, in the grant, does not vary the construction of the deed.

After the grant to the children of Jane Miller, of “ the use, possession, occupation, and enjoyment of the premises aforesaid',” that is of “ the plantation, on which she (Jane Miller) resides, on the east side of the said stream, together with the house, out-houses and appurtenances thereunto belonging,” what is the effect of the addition, “ with as much land, adjoining the present improved plantation, as he, she or they, (the children,) at any time hereafter, may wish to clear and cultivate, in addition to the present clearing?” The lease of the “plantation” only, would have restricted the lessees’ '■cultivation to the fields open at ,the date of the deed. It would be waste if they cleared any more. This clause was, then, obviously added to make the lease of the plantation more beneficial, by exempting it from impeachment of waste. It does not allow more land for cultivation than may have been supposed necessary for Jane Miller and her seven children, together with their issue. And in this connexion it should be noticed that the deed must be construed with reference to the time of its execution; and not the time when it may be the subject of an action.

1 Strob-

This construction is most consistent with the terms of the deed, and by it alone can the grantees claim any interest or estate in the tract, beyond the limits of the settlement, consistently with the law of real estate, which has heretofore prevailed.

The plaintiff having purchased the reversionary interest of Daniel Bourdeaux, entered on the tract, east of the stream, and is clearing and cultivating the land. The defendant is in possession of a part of the tract, in right of his wife, one of the children of Jane Miller. The action is for a trespass to the possession of the plaintiff. Other children of Jane Miller are liviug. But the deed is to be construed as if they were all alive. On a former trial of the case, the jury were instructed,,.that the right of the plaintiff to recover, depended on the question whether the part of the tract, of which defendant had possession, was reasonably sufficient for his cultivation. That must be the practical application and effect of the construction adopted by the Court.

•Let that construction be tested by the rules of law. The deed is construed to grant, to the ¡children of Jane Miller, an estate, for life,- in the settlement; with a covenant of Bour-deaux, that they shall have the use of as much additional land as they may wish, or may be necessary for them to clear and cultivate. This is not held to be a mere covenant, to make a lease or a grant1 of such additional land ; for such a covenant would transfer no interest or estate in the land. It would be a personal covenant, like a bond to make titles, and would give only a claim for damages in case of a breach. The use of the additional land is covenanted for, in the same words which grant the use of the settlement. The grantees must take the same legal estate in both. This is admitted by the judgment of the Court.

It has been received as a settled maxim, that a freehold estate cannot be created to commence in futuro. There may be several interests in possession, and in reversion or remainder, in the same land; but it is self-evident that the same land cannot be the subject of two or more independent, adverse titles or estates, existing together; nor can there be more than one legal right to the possession of land. But, under the construction of the Court, an estate for life must, from time to time, be created, as the increasing necessities of the children of Jane Miller may demand additional land for cultivation. In the mean time, the grantor is allowed to occupy by force of his original title and estate, and to clear, 'cultivate and exhaust the land, in which he had granted an, estate for life. During the continuance of the estate of the grantees, the quantity they might have occasion to clear and cultivate, would be constantly varying, with the increase or diminution of the number to be supported on the land ; and the estate of the grantees thus be alternately extended and reduced, by a sort of ebb and flow of their title over the land.

Sfeep. Touch. 278.

Bac. Abr. Grant, H.

Habart, 174,

It is not a technical rule, but one of practical necessity, that a grant which does not certainly describe the thing granted, is void. “ If one grant land but there be no circumstantial matter, in the grant, to' denote and decypher where it may be, it seems the grant is void for uncertainty.” “If a grant be incertain altogether, and has not sufficient certainty in it, and cannot be made certain by some matter, ex post facto, it is void.” In Stukely v. Butler, the grant of all the trees, which can conveniently be spared and cut, without injury to the estate, was held void for uncertainty.

Nothing can be more uncertain than the quantity of land the seven children of Jane Miller might wish to clear and cultivate. Even if the grant be construed to be of so much land as they might reasonably require for cultivation, there would exist an invincible uncertainty. The quantity would vary, every year, as they became able to labor, and should marry, and their offspring become laborers. Death and removal would increase the uncertainty. It is impossible for the law to give effect to so ambulatory a grant. The possession given, one year, might require to be increased the next; and an increase be immediately followed by a lessened demand from death or removal. No better illustration can be presented, than this case affords, of the necessity of the rule which holds an uncertain grant to be void. While, by the decision, it is admitted the grantees have an estate for life in so much land, outside the settlement, as they may wish to clear and cultivate; it is, at the same time, affirmed that the grantor retains his estate in all the tract, except the settlement. The grantor may pve-occupy and exhaust the land granted; and the plaintiff, claiming under the grantor, does, in fact, occupy and cultivate a large pari of it. Thus two estates co-exist in the same land, and the possession of the grantor and grantees is regulated by a sliding scale of the grantees’ variable wants.

Heretofore it has been law, that land could only be conveyed by deed. It is necessary that the deed should express not only the interest or estate, but also the quantity of land granted, by such a description as designates it with certainty. But under the decision, reference is not had to the deed to ascertain how much land is granted ; but it is left to the jury to determine how much it is reasonable the grantees should have. I shall add nothing respecting the merits of this new mode of conveyance, by which a title to land is transferred by the verdict of a jury, nor of the new species of tenure, which defines the extent of a grant by the wants of the grantee, as they may vary with time and circumstances; and which must be added to the estates recognised by law, under the description of a tenancy by jury.  