1785.
Atkyns 8. 1 Mod. 175. 2 Levinz to 3 Levinz. 372. 1 Bac. 274. For the ſecond poſition, they cited, Carthew 343. 1 Co. 100 b. 101 a. Littleton's Rep. 347. 5 Mod. 266. And they concluded, that if this inſtrument had been a will, it would appear manifeſtly to be the intention of the parties to paſs a fee; for which they cited 6 Mod. 109 110. Cro. Car. 450. 1 Ld. Raymond 187. 2 Will. 524.
Mr. Sergeant, in his reply, ſaid, that the deed of 1743 muſt operate as a feoffment, and relied upon the following authorities. Co. Lit. 9. a 1 Vol. Pennſylvania laws pa. 78. Prec. in Chan. 580. Lilly's Conveyance 613. 614. 646. 2 Inſt. 672.
Upon hearing this argument, and reading the books that had been cited on both ſides, and full conſideration of them, it appeared to me, that this deed, or inſtrument, ought to be taken as a covenant to ſtand ſeized to uſes, and that the law has been long ſettled, that a deed ſhall be conſtrued either as a common law conveyance, or a ſtatute conveyance, if it can be taken both ways, as will beſt tend to give it all the effect the parties intended. This deed then has every requiſite neceſſary to conſtitute a deed of covenant to ſtand ſeized to uſes. 1ſt. Here is a ſufficient and proper conſideration, viz. natural affection. A conſideration may be either a good, or a valuable one. A good conſideration is that of blood, or natural affection, or love; as when a man grants an eſtate to a near relation, as in this caſe, to his eldeſt ſon. Blood or marriage are the moſt common and ſuitable conſiderations in this ſpecies of conveyance. The valuable conſideration is ſuch as money, marriage, or any other equivalent given for the grant. 2 Black. 207. 336. 2d. It is a deed. 3d. Johannes Vandegrift was ſeized in fee. 4th. Here are apt words to convey lands; and the word grant, which is in the deed, has been adjudged in the caſe of Wilkinſon's leſſee vs Farmer &c. (2 Wilſon 175, 1 Mod. 175.) ſufficient, of itſelf, to create a covenant, and to raiſe an uſe. Theſe are all the circumſtances neceſſary to make a good deed of covenant to ſtand ſeized to uſes.
As to the other point:—How this conveyance was to be conſtrued, whether as a deed at common law, or, like a will, according to the intent of the parties? I was, at firſt, of opinion, from the general doctrine laid down in all the books cited at the bar, that the intention of the parties was to govern in the ſame manner as in a will; and of that intention I had no doubt; for by the words uſed in the premiſes, if unreſtrained by the habendum, it appeared mantfeſtly, that Johnannes Vandergrift had given all his right, title, intereſt, claim and demand whatſoever, which he had in the land, unto his ſon Abraham, freely, abſolutely, and clearly &c. which words in a will would unqueſtionably paſs a fee. But having, afterwards, met with two cafes in 4 Burn's Eccleſiaſtical Law pa. 110 and 118. I heſitated. A ſecond argument was, therefore, had on the 18th of December laſt, when the queſtion, that alone admitted of controverſy to wit, how far this deed of covenant to ſtand ſeized to uſes, ſhould be conſtrued like a will, was fully conſidered by Mr. Bradford. He contended, that it required ſuch technical words, as are
