Opinion
(July Term, 1816.)
A deed cannot operate as a bargain and sale unless it has a pecuniary consideration; nor as a covenant to stand seized to uses, unless the consideration be love and affection for a near relation, or marriage. Affection for an illegitimate child is not a sufficient consideration.
TRESPASS quare clausum fregit, in which the jury found a verdict for the plaintiff subject to the opinion of the court on the following point, to wit, whether a deed regularly executed, proved, and registered from Levi Blount, under whom the plaintiffs claim as heirs at law (which deed expresses that "the said Levi Blount, as well for and in consideration of the natural love and affection which he hath for and beareth unto the said Judith Whidbie, his natural born daughter, as also for the better maintenance and preferment of the said Judith Whidbie, hath given, granted, and confirmed, and by these presents doth give, grant, and confirm unto the said Judith Whidbie, her heirs and assigns forever, the land in dispute"), is sufficient to convey the said Blount's title to the said Judith Whidbie, under whom the defendant claims.
Hogg for plaintiff.
The question arising upon this record is whether the deed relied upon by the defendant is sufficient in law to convey the title from Levi Blount. The distinction between a deed and a parol contract is well settled at common law, and upon the basis of sense and justice. The inconsiderate manner in which words frequently pass from men would often betray them into acts of imprudence, and not unfrequently expose them to the artifices of fraud, were they not placed under the safeguard of that rule which denies validity to a parol contract unsupported by a consideration. On the other hand, the ceremonies which accompany a deed imply reflection and care, and serve to enable a man to avoid either surprise or imposition.
This rule was changed only when chancery assumed a jurisdiction of uses when they acted upon the maxim of the civil law, Ex nudo pecto non otoritur actio, and would carry a deed into execution which was not supported by a consideration.
Lord Bacon, in his reading on the statute of uses, remarks: "They say that a use is but a nimble and light thing, and now, contrawise, it seemeth to be weightier than anything else, for you cannot weigh it up to raise it, neither by deed, nor by deed enrolled without the weight of a consideration. But you shall never find a reason of this to the world's end in the law; but it is a reason of chancery, and it is this: that no court of conscience will enforce donum gratuitum, though the intent appear never so clearly, where it is not executed or sufficiently passed by law; but if money have been paid and so a person damnified, or that it was for the establishment of his house, then it is a good matter in chancery."
Of common-law conveyances it is necessary to notice only a feoffment, and it is very clear that this deed cannot operate as such, because the case does not state that Levi Blount was in possession, nor that he gave livery of seizin; and if the deed were in all other respects formally in feoffment, the mere signing and sealing such a deed was, in no instance, sufficient to transfer an estate of freehold, unless the possession was delivered from the feoffor to the feoffee, and without which a deed of feoffment only passed an estate at will. 1 Lit., 43 a. The (391) livery of seizin is the delivery of actual possession, and therefore cannot be made by a person who has not at the moment actual possession. Consequently, if a person make a feoffment of land which are let at lease, he must obtain the assent of the lessee to the livery. The old practice was for the lessee to give up the possession for a moment to the lessor, in order to enable him to give the livery. Betterworth's case, 2 Rep., 31.
It is next to be inquired whether the deed can operate under the statute of uses, the effect of which is to impart efficacy to certain conveyances without a transmutation of possession.
A bargain and a sale is a contract by which a person conveys his land to another for a pecuniary consideration, whence a use arises to the bargainee, and the statute immediately transfers the legal estate and possession to him without any entry or other act on his part.
For want of a pecuniary consideration, then, it is perfectly clear that this deed cannot operate as a bargain and sale.
Nor can it operate as a conveyance to stand seized to uses, because it is essential to this sort of conveyance that the consideration be either affection to a near relation or marriage. The love and affection which a man is supposed to bear to his brothers and sisters, nephews and nieces, and heirs at law, as well as the natural desire of preserving his name and family, all form good considerations.
There is an implied obligation subsisting between parent and children, who are considered in equity as creditors, claiming a debt arising from the duty a parent is under to provide for them.
But love and affection to an illegitimate child is not a sufficient consideration to raise a use in a covenant to stand seized.
Where a person covenanted, in consideration of natural love and affection, to stand seized to the use of himself for life, remainder to A., his reputed son (who was illegitimate) for life, etc., and also covenanted to levy a fine or make a feoffment for further assurance. Afterwards he made a feoffment in fee to the covenantees, in performance (392) of his covenant to the same uses. It was resolved that no use arose to A., the bastard, by the covenant, for want of a consideration. Nor could he take anything by the feoffment, it being only made for further assurance. Dyer, 364, pl. 16.
This case is expressly in point, and its authority is unquestionable; wherefore, there must be judgment for the plaintiff.
Dist: Bruce v. Faucett, 49 N.C. 393; Ivey v. Granbury, 66 N.C. 229; Morris v. Pearson, 79 N.C. 260.