blessings to millions of our fellow citizens; the Abridgement of Law-an extensive and laborious work in nine volumes, which has given its author the appellation of the American Viner; and the Professorship of Law, established by Mr. Dane at Harvard University, and adorned by the learning and talents of Mr. Justice Story-from which the latter has sent forth those immortal works which have excited the admiration of the jurists of Europe, and first called their attention to the jurisprudence of our country,-these entitle Mr. Dane to no small share of fame. The language of sarcasm may be fitly employed as his epitaph,-One Nathan Dane.--ED. JUR.]

ART. VII.-OPINION OF JUDGE TROWBRIDGE ON THE CONSTRUCTION OF A DEED.

[The following learned opinion, given in the course of professional practice, by the most eminent lawyer of the Province, before the American Revolution, and the friend and instructer of Chief Justice Parsons, cannot but be interesting to our readers. The deed, out of which the question considered arose, was drawn by Richard Dana, Esq., the father of Chief Justice Francis Dana, the predecessor of Parsons. For a judicial construction of this deed, see Thatcher v. Omans & al. (3 Pick. R. 521. S. C.; 4 Dane's Abr. 257), in which this opinion by Judge Trowbridge is referred to.-ED. JUR.]

MOSES GILL and Sarah his wife, being of full age, and seised in fee in her right of several messuages and tracts of land in the counties of Worcester and Plymouth, by their deed, signed, sealed, and acknowledged by them before a justice of the peace, and recorded at length in the registries of those counties; in consideration of the marriage between them had, and for the settlement of the same messuages and lands to the uses in the deed after mentioned, and also in consideration of twenty shillings lawful money, paid them by John Scott, grant, bargain, and sell the messuages and lands aforesaid to the said John Scott, to have and to hold the same

to him and his heirs forever, to the use and behoof of the said Moses Gill, and Sarah his wife, and their heirs and assigns forever, and the heirs and assigns of the longest liver of them forever. After which, the said Sarah dies, and a question has arisen, Whether any estate in the messuages and lands aforesaid was by that deed conveyed to the said Moses Gill, and if any, what estate it was ?

And upon consideration of the deed, and the laws respecting such conveyances, I am clearly of opinion, that the messuages and lands aforesaid did pass by that deed, and the Statute of Uses to the said Moses and Sarah, and their heirs as joint tenants in fee, and that upon her death, the entire tenancy remains to the said Moses and his heirs in fee.1

For although by common law, husband and wife cannot convey her real estate in England, unless by fine or recovery in the King's Court, yet they may, by custom, in some places there do it otherwise. And here it may be done by deed so made, acknowledged, and recorded as this is. For the Province Act of 9 Wm. III. expressly provides, 'That henceforth all deeds or conveyances of any houses or lands within this Province, signed and sealed by the party or parties granting the same, having good and lawful right or authority thereto, and acknowledged by such grantor or grantors before a justice of the peace, and recorded at length in the registry of the county where such houses or lands do lie; shall be valid to pass the same, without any other act or ceremony in the law whatsoever.'

The words of this act are general, and extend to all deeds of conveyance made by any person or persons 'having good and lawful right or authority thereto,' that is, to grant houses or lands in the Province. An infant has no right to convey his real estate, nor has a wife a right to convey her estate alone; but husband and wife, of full age, have a right to con

' 11 Co. 77, a; Hob. 225: 2 Inst. 673; 2 Bac. 527.

2 Hob. 225; 2 Inst. 673; Dyer, 363.

3

vey her estate by fine, and it binds them and their heirs ;* but if she was under age when the fine was levied, it may for that cause be reversed." Before the wife's estate is conveyed by fine, she is to be privately examined by the Chief Justice of the Court of Common Pleas, or by others specially empowered by writ out of Chancery to examine her, whether she doth it freely, or by compulsion, which would be vain and idle if she and her husband had no right to convey her estate by fine, if she was free and willing to do it. And as husband and wife may, by custom in London and other places, convey her estate otherwise than by fine or recovery, if they are of age, and upon her being so examined, it appears she doth it freely, they must be supposed to have a right to convey her estate, if both of them are of full age, and willing to do it. The mode of conveyance is different in different places; but their right to convey is alike in all, and they have the same right to convey her estate here as there; though the manner of doing it be different; and though she be not so examined here as she usually is there. For, although a fine for conveying the wife's estate ought not to be received, if she be not examined, and does not freely assent; yet if it be received and recorded, it will bind her and her heirs. And in conveyances of the wife's estate by common recovery, examination is so far from being thought necessary, that she is not usually examined. It is plain, therefore, that in England the wife's estate may be conveyed by her and her husband, and that it may be done without her being privately examined, whether she does it freely or not. And if so, surely not only because

her

it may be done here without that ceremony; we have no Chief Justice of the Common Pleas, nor any such

'10 Co. 43, a. 1 Roll. Abr. 347; 2 Roll. Abr. 20, Dyer, 290, 61; 2 Co. 57. 23 Lev. 36.

'Litt. §670; 10 Co. 42, b. 43. a. ; 2 Inst. 515, 673; 2 Bac. 527; Cro. Eliz. 469. * 2 Inst. 673.

52 Inst. 515; 1 Bac. 301, N; 2 Bac. 527, N.

• Style, 320; 1 Sid. 11, 322.

writs out of Chancery, nor any law, usage, or custom empow ering any person or persons to take her examination, or to issue writs for that purpose; but because all persons that have a right to convey any real estate here, may, by force of the Province Act aforesaid, do it by deed, so made, acknowledged and recorded as this is.

This Province Act has always been understood to extend to conveyances made by husband and wife of her estate, and they have accordingly conveyed the wife's estate by deed so made, acknowledged, and recorded as this is, ever since that act was made.

And a very great, if not the greatest part of the real estate in the Massachusetts Bay, is held mediately or immediately, under such conveyance of the wife's estate, so that they are become common assurances, and for that reason, if there was no other, are binding, and not to be shaken.'

The settlement of the husband's estate on his wife, and so of her estate on him, has most commonly been made here by two several deeds of bargain and sale in common form; but this has been usually done by the advice of such persons as did not know how to do it by one deed. However, such settlements of the wife's estate have been held good upon the supposition, that the husband and wife had a right to convey her real estate to a stranger by deed; and if they have that right, surely they must also have a right by deed to convey it to their own use. But as husband and wife are one person in consideration of law, he cannot by deed made to his wife, convey his estate to her, but may convey it to a third person to her use. So husband and wife cannot convey her estate to him, or themselves directly, but may convey it to a third person, to the use of the husband only, or to their joint use. And both may be done here by deed, and

1 2 Bla. 333; Style, 220; 1 Wilson, 73.

* 1 Inst. 112, a.

3 This is done in England usually by fine or recovery. See the form of such fine, 2 Bla. Appx. No. 11, and 2 Bla. 364, and the note and deeds to lead or declare the uses. 2 Bla. 363.

better by one deed than by two. For when land is granted to A. and his heirs, to the use of B. and his heirs, the land by such grant, and the operation of law, is conveyed to B. in fee; provided he be a person capable of taking such an estate, and A. of standing seised to such an use, and that the grant is made upon a good or valuable consideration, by him or them that had a right to make it, because in such a case an use arises to B. That is, B. has a right in equity to the profits of the land, and by the statute of 27 Hen. VIII., called the Statute of Uses, the possession is united with the use in B. That is, possession of the land is given by that statute the instant the grant is made to B., who has the equitable right to take the profits, and thereby B. becomes complete owner of the land, as well at law as in equity.'

In the present case Moses Gill and his wife were capable of taking a joint estate in fee in the messuages and lands. J. Scott was capable of standing seised thereof to the uses in the deed mentioned. The grant was made upon a good and valuable consideration by M. Gill and his wife, who had a right to make it—they were of full age, and seised in fee of the messuages and lands in her right, and therefore had a right to grant the same.

The grant was made as well in consideration of their marriage had, and for settling her estate on themselves, as for twenty shillings lawful money paid them by Scott, which is sufficient to raise the use in the deed mentioned.

Marriage is a present, continuing consideration.

Marriage

to be had is a good consideration to raise an use.3 Marriage already had will raise an use to the wife out of the husband's estate, and a limitation of an estate by the husband to his wife imports a consideration, without any express words of consideration. For the same reason, marriage already had,

1 2 Bla. 332, 333, 363, 364.

1 Davd. 37; 2 Leon. 224, 225; Cro. Eliz. 741, (16.)

32 Cro. 168; 2 Roll. Abr. 786. 10; Dyer, 235.

47 Co. 40, Bedell's case.