Spalding v. Hallenbeck , 30 Barb. 292 ( 1859 )

By the Court, Gould, J.

In a late decision of this court, we have held that there must he a consideration for every deed; and that for a deed of bargain and sale, that consideration must be what the law calls a valuable one, as contra-distinguished from what it styles a good consideration. And also, that by the earlier decisions, as well as by the latest, such consideration may be either expressed in the deed, or proved independently of it. It is also true, that where a particular consideration, and that only, is expressed in a deed, it cannot be contradicted by proof that there was not that consideration, but that there was a consideration totally different from the expressed one. But proof of a further consideration superadded, does not contradict the deed, and is allowable ; and it may be that by such consideration the deed will be sustained.

At common law, (before the courts of equity raised the doctrine of uses,) it was not necessary that any consideration should be expressed in a deed, for that the deed implied one. (Plowd. 308. 4 Cruise’s Dig.. 24.) But, by the doctrine of uses, a conveyance without consideration expressed, was treated as voluntary, transferring indeed the legal estate to to the grantee, but leaving the beneficial interest in the grantor; and thus-such a deed was held, in equity, to enure to the benefit of the grantor. (Rob. on Fraud. Corv. 85. 2 Black. Com. 136, 271, 2, 327-330.) Then came the statute of uses (27 Henry 8th) which executed the use, and transferred the legal estate to him who had the beneficial interest, so that, under that statute, a conveyance without consideration expressed would, at law, enure to the benefit of the grantor, by giving him the legal title, or rather, not passing it from him. (2 Black. Com. 296, 332, 3. Perk. § 533.) Yet, if such a deed declared a use to a third person, it could not enure to the benefit of the grantor; expressum facit cessare taciturn; and the implied use became impossible^ because declaring the use to be to a third person, shows that a use to the grantor was not intended. It is negatived by the terms of the deed. In this country, however, it has been held by good authority, that in those states where this doctrine of uses never obtained, the ancient English statute of uses having nothing on which to operate, constituted no part of the common law of such states; and that there, a deed without consideration expressed, does not enure to the benefit of the grantor, but passes the title, legal and equitable.

These two principles would seem to limit any possible rule, that the grantor takes the benefit of a deed without consideration, so that it cannot be applicable to either of these two cases: 1st. Where, on the one hand, the law of the state implies no such use, from the absence of consideration; and, 2d. Where, on the other hand, the deed itself, '©n its face, shows an intent that it should not enure to his benefit. I am not aware how far the doctrine of uses ever prevailed in this state, or whether it prevailed at all. But it is true, that so far as express uses not sanctioned by onr present law are concerned, our statutes are substantially equivalent to the statute of uses, and execute the use. (3 R. S. 15, §§ 47, 49, 5th ed.) Yet, however that may be, I see no reason for not keeping the rule within the limits above. And in the case before us, the intent is plain, upon the face of the deed, that the grantors were to have a benefit therefrom different from, and inconsistent with, their retaining the title. They meant to secure a support for their lives, which is equivalent to a life annuity as the purchase price; and such a consideration has pecuniary value—is a valuable consideration. It is further true in this case that the proof is, that the defendant Hallenbeck entered into possession under the deed, and performed the condition, or consideration, named therein, by supporting the grantors; the voluntary leaving, of Ezra Spalding, after his wife’s death, not affecting that fact.

It is said, however, that Jackson v. Florence (16 John. 47) is entirely decisive of this case, against the defendants, and that other cases have followed it to that extent. There is no need of going, in the least degree, aside of that decision, or contrary to it, in order to sustain Spalding’s deed, before us. The case in 16 Johnson needs but a careful reading, to show that it is very far from parallel to this one. So far as .the clause stating the consideration is concerned, the two deeds are substantially the same.- But in the subsequent part of the deeds the difference is total. The deed in the first case recites a prior agreement, not proved in the case, (“whereas, F. has agreed,”) and then says, that “if the grantee shall perform” that unproved agreement, (that agreement not contained in the deed, and not in esse in any binding form,) “then the above conveyance to be taken and construed to all intents and purposes; in other, to be void and of none effect.” And on this instrument the court say, “a deed of lands will be inoperative if there be no consideration to support it;” and, “in the present case, there is no pretense of consideration other than as is expressed in the deed; and we are of opinion that the deed itself furnishes no evidence of consideration. Taking the whole deed together, the inference is irresistible that the defendant never bound himself by any covenant or agreement which could be enforced, to support, &c. the plaintiff. The deed leaves it to the option of the defendant, either to support the lessor, or suffer the deed to become void, by withholding the support. If there had existed any agreement by which the defendant was bound to support the lessor, it was incumbent on the defendant to produce it; but, in the absence of such agreement, we are bound to say there was no consideration for the deed.”

If then there be, in Spalding’s deed, a binding agreement by Hallenbeek (which can be enforced) to support the plaintiff, that is a sufficient consideration to support the deed; though it be a deed of bargain and sale. (See also 9 Cowen, 69.) To ascertain whether there be, note the words of the deed, how totally they differ from those above cited ; “ the consideration of the above conveyance is, that the above named David Hallenbeek is to, and agrees to,” (that is, hereby agrees to,) “ keep, maintain and support,” &c.; and if he fail so to do, the deed is to he void and the land is to revert to the grantors. Consider these words in the light of its being proved, in the case, that the grantee accepted the deed, and went into possession under it. “ Agrees,” ex vi termini, means that it is the agreement of both parties, both concurring on the point, whether both sign or not. And the act of acceptance is fully equal, in its binding effect, to any signing and sealing ; and such words, in a deed-poll accepted by the grantee, make a covenant on his part, binding him and to be enforced against him, though he did not sign the deed. (Co. Litt. §217, n. Cro. Jac. 399. Barton v. McLean, 5 Hill, 258, 9. Aikin v. Albany, Vermont and Canada R. R. Co., 26 Barb. 298. Van Rensselaer v. Smith, 27 id. 140, and cases there cited.) It appears to me that beyond question Hallenbeck was bound by these words; and might have been sued on them and compelled to furnish the support. It is true that his failing to keep his covenant would work a forfeiture ; but enforcing that was not the plaintiff’s only remedy. And so long as a promise to do an act, a binding agreement, is a sufficient consideration for a corresponding agreement to do some other act, or to pay money, I see no reason why such a covenant as this is not entirely sufficient to support the deed.

[Albany General Term, March 7, 1859.

It seems to me there should be a new trial.

New trial granted.

Wright, Gould and Hogeboom. Justices.]