Young v. Marshall , 1 Hill & Den. 93 ( 1843 )

By the Court,

Bronson, J.

The general rule is too well

settled to be now called in question, that at the common law the word heirs is necessary in a deed of lands where the parties wish to create an estate of inheritance. If that word is not used nothing more will pass than an estate for the life of the grantee. There are some few exceptions to the rule, standing upon special reasons. (Co. Litt. 9 b, and 273 b, and 4 Kent., 5-7); but this if not among the number of excepted cases. It is no objection to the rule that it is as old as the feudal system, nor that it had its origin in the principles of feudal policy. We are not at liberty to depart from any settled rule of law, either because it is old, or because we do not approve of the reasons upon which it was originally founded. The legislature has altered this rule for the future (1 R. S., 748, § 1), but it has not undertaken the more than human task of altering it for the past.

As there were no words of inheritance in the deed from Ockerman, the patentee, to Gumming, the reversion in fee passed by Ockerman’s deed to Van Rensselaer in 1795. Van Rensselaer conveyed to Bayard in 1796, and Bayard conveyed to Ritson in 1798. The plaintiffs are the heirs at law of Ritson, and the life estate of Gumming terminated on his death about the year 1826. The plaintiffs have thus established a complete claim of title, to which there can be no answer in a court of law. The conveyance to. Gumming may be sufficient as a declaration of trust to create an equitable estate in fee, which as between grantor and grantee would be enforced in a court of equity. Fisher v. Fields, 10 Johns., 495. Higinbotham v. Burnet, 5 Johns. Ch., 184. But should the defendant resort to chancery he could not succeed without shoeing that those who have acquired the legal estate from Ockerman had actual notice of the trust in favor of Gumming. It has been settled that the filing of his deed can not be regarded as legal notice to a subsequent purchaser. Wendell v. Wadsworth, 20 Johns., 659, And there is no pretence that either Yan Rensselaer, Bayard or Ritson had actual notice of the deed to Gumming. But whatever may be. the result of an appeal to another forum, it is enough for us that the plaintiffs have the legal title.

The view which has been taken of the case, renders it unnecessary to inquire whether the plaintiffs acquired a title under the award of the Onondaga commissioners.

New trial denied.