Opinion
(December Term, 1853.)
A general power to sell, given to a stranger, by a deed of bargain and sale, or covenant to stand seized to uses which also conveys such property to others than such stranger, is void, and a conveyance made under it is also void.
ACTION OF EJECTMENT for a lot in the City of Raleigh, tried before his Honor Judge MANLY, at Fall Term, 1853, of Wake Superior Court.
Winston and Rogers, for plaintiffs.
Moore and G. W. Haywood, for defendant.
Clara Thomas, being seized of the premises, made the following deed: "To all people to whom these presents shall come, greeting: Know ye, that I, Clara Thomas, of the City of Raleigh, for and in consideration of the natural love and affection which I have and do bear towards my two children Frances and Thomas, and for the further consideration of one dollar to me in hand paid, I have, and do by these, give unto my two children Frances and George, my house and lot, part No. 112, whereon I now live, together with all my household, kitchen furniture, and every other species of property I own, of what nature or kind so ever: but the property herein conveyed is, however, to be under the control and management of Alexander M. High, for my said children, namely, to rent, lease, sell or otherwise dispose of the same, say all or any part of said lots, houses, or other property hereby conveyed, as to him may seem most advantageous for my said two children, and to make such conveyances for the same as he may deem most advantageous for their promotion and benefit; (here follows the boundaries); together with all the profits and benefits, rents, issues and profits thereof, to them and the said Alexander M. High, as above conveyed. In testimony whereof, I have hereunto set my hand and seal, this 15th of March, 1842."
Alexander M. High, after the death of Clara Thomas, in virtue of his supposed authority under the above deed, sold and conveyed the property to Richard Smith, who conveyed the same by his will to the defendant Penelope. The plaintiffs are the children of Clara Thomas, mentioned in the foregoing deed.
The only point in the case was whether A. M. High had power to sell and convey the land. It was agreed that, if the Court should be of opinion that he had, there should be a non-suit; and if of opinion otherwise, judgment should be rendered for plaintiffs. His Honor gave judgment of nonsuit, and plaintiffs appealed.
Considering the authority given to High, to sell the land and make a conveyance, in the light of a power of attorney, the deed executed by him could have no effect, because it was made after the death of his principal, by which it was revoked. Considering it as a power of appointment, under the doctrine of uses, it is equally imperfect, because it is well settled that an estate cannot be created by means of a general power of appointment given in a covenant "to stand seized" to uses, or in a "deed of bargain and sale;" and the deed of Clara Thomas to her two children, in which the power is contained, must be either the one or the other of these conveyances.
1. Supposing it be a "covenant to stand seized," that conveyance operates by a use being raised on account of a good consideration, and then the legal estate is carried to the person having the use, by force of the statute of uses: a use must first be raised, and that can only be done by a good consideration — natural love, for instance, between the covenantor and the person in whose favor it is to arise. Of course, such a consideration cannot exist where the appointee, or person to have the use, is at the time unknown, and may be any one whom the donee of the power may afterwards appoint: and, although the appointee may happen to be one who is a kinsman of the covenantor, that will not suffice; for the consideration that will support a deed, when it requires a consideration, must exist at the time it is executed; otherwise the deed is deficient, and the accident of a consideration afterwards cannot give to it any effect. This, however, is beside the question; for the appointee was not a kinsman of the covenantor. Although, as between the donor and her two children, there was a sufficient consideration to support the deed, and to raise the use limited to them, yet a good consideration is personal, and cannot extend, for any purpose, beyond the party, and the use limited to the party. If a parent covenants to stand seized to the use of a child for life, remainder to the use of a stranger, the remainder is void. The reasons apply with more force to future contingent uses, and with still more to such uses as are to be raised by a general power of appointment, although the power is given to the child: of course, to give such a power to a stranger is out of the question.
2. Suppose it to be a deed of "bargain and sale;" that differs from a "covenant to stand seized" only in this: that one requires a good, and the other a valuable consideration; and the remarks made above apply, with a slight distinction, growing out of the nature of the two kinds of consideration. And the difference is this: a good consideration, as before remarked, is personal; whereas, a valuable consideration may be paid to the bargainor, for and on account of another. So that, although a covenant to stand seized to the use of a stranger, in consideration of natural love for the child of the covenantee, is void, yet a bargain and sale to B, in consideration of value, paid by a stranger to the bargainor, for and on account of B, raises the use, and the statute carries the legal estate. So if one, in consideration of value paid to him by A, bargains and sells to A for life, remainder to B in fee, it will be intended that A paid the consideration, as well on account of B, as for himself. But the person to whom it is limited must be named, for it cannot be intended that a consideration was paid for and on account of an unknown person. For this reason it is settled that a future contingent use to one unknown, or not in esse, cannot be raised by a deed of bargain and sale. It is also settled that a use cannot be raised by a general power of appointment, given to the taker of the first estate in the use: and the case is much stronger where the power of appointment is given to a stranger, which is our case. For then the idea that any consideration moved from the unknown appointee to the bargainor is entirely out of the question. And it does not alter the case if, after the appointee is known, he should pay a valuable consideration to the bargainor; for the deed is absolutely void, unless the consideration is paid, or secured to be paid, (which is the same thing,) at the time the deed is executed.
It would be an idle display of learning to pursue this subject further; Sir Edward Sugden, in his treatise on Powers, discusses it fully, and it so clearly appears that, in regard to the question before us, there is no conflict of opinion. So it would seem useless to have said as much as we have, but for the purpose of simplifying the subject, and relieving it from that seeming confusion which is sometimes produced by too much learning. In vol. 1, page 85, he says: "A power in a bargain and sale to lease to any man, although for a valuable consideration to be paid or rendered, is too general, and therefore void." "So such a power in a covenant to stand seized is, for the same reason, void: nor is it any argument in favor of a lease under such a power, that it is granted to some person within the consideration of blood, because, by reason of its generality, the power was void at the time the deed was executed." At page 86: "It seems clear that a power may be raised, in a bargain and sale, to lease to a person from, or in behalf of whom, a consideration moved at the execution of the deed: so a power may be raised in a contract to stand seized, to grant a lease to a person named in the deed, and within the consideration of blood or marriage, although such a lease cannot be granted where a general power is reserved to lease to any man." In such cases, as Lord Chief Baron GILBERT has observed, "no use can arise; for, when the persons are altogether uncertain, and the terms unknown, there can be no consideration. If such cases could be supported, it might, on the same ground, be argued that contingent uses to persons not in esse could be raised in a bargain and sale, provided they paid a consideration when born. It is settled that such a general power is void in its creation." Saunders, in his treatise on Uses and Trusts, vol. 2, page 42, says: "As no use can be limited to arise out of a use, it follows that a use cannot be limited upon the legal estate of the bargainor, so as to be executed by the statute; neither can there be a scintilla juris, or possibility of the seizin remaining in the bargainor, after the bargain and sale, to serve a use limited on a future event, because the consideration paid by, or on account of, the bargainee, and which constitutes the foundation of the bargain and sale, appropriates the use exclusively for his benefit. The limitation of the use to the bargainee is a consequence arising from the payment of the money, and beyond that limitation the original consideration and contract do not extend: therefore, if there be a bargain and sale for the use of the bargainee, with a power from him to make leases, a lease made under that power cannot operate as an appointment of the use to the lessee."
The reason why these authors direct their attention almost exclusively to the power to make leases is, because the question was settled at an early day against the power to sell, and has never since been agitated. But the power to make leases was so convenient and almost necessary, according to the condition of things in England, that it found some advocates — among others, Cruise. They, however, were forced to restrict it to leases where a full rent is reserved to be paid to the person having the first estate, and, after its determination, to the taker of the second estate. The admission of the necessity for this qualification yields the question; for, evidently, it is not the amount but the fact of the consideration that forms the basis of the doctrine: for the purpose of raising a use, one dollar is as effectual as one thousand.
If a general power to lease cannot be given to one to whom the first estate is limited, a fortiori a general power to sell cannot be given to a stranger. The whole subject is fully discussed in MILDMAY'S case, 1 Rep. 177.
Judgment reversed, and judgment for the plaintiffs, according to the case agreed.