Page:United States Reports, Volume 1.djvu/150

Rh 1785.  uſed and neceſſary in deeds at common law to paſs an inheritance, that in all deeds the word heirs is neceſſary to paſs a fee; this is the general rule, and though there are exceptions, yet this ſpecies of conveyance to uſes is not among them; which appears 1ſt, from the ſilence of approved writers on this ſubject. To ſhew which he cited, 2 Black 108. ''Bac. Abr.'' 252. 3. Comyn's Digeſt. 214. Shepherds Touchſtone of aſſurances, fo. 101. (97, of new edition) Co. Lit. 9. 2dly. From a variety of expreſs and poſitive authorities. 3 Black. 370. 1. Co. 87 b. Co. Lit. 10. a. Shepherd's Touchſt. 102. 106. 1 Comyn's Digeſt. 543. 1 Co. Rep. 100 b. Gilbert's Uſes and Truſts 75. 76. And 3dly, that words, eſſential to convey a fee in a deed at common law, are neceſſary ſince the ſtatute of uſes, 27 Hen. 8 ch. 10. in a covenant to ſtand ſeized to uſes. To prove which he cited 5 Bacon 357. 1 Rolls Abr. 837. ''Cro. E.'' 478. 2. ''Lill. Reg.'' 112. Sir Thomas Raym. 317. 2 ''Ld. Raym.'' 115. 2. 4. &c.

We have ſince heard the counſel for the defendant in anſwer, who chiefly dwelt upon the deed of 1743 having a relation to the eſtate which the covenantor had, that he having a fee, had by relative words conveyed that fee to his ſon; and they relied upon 2 Comyns 215. ''Shep. Touchſt.'' 121. Co. Lit. 9. b.

Upon the whole, have, unanimouſly, formed the ſame opinion as the Plaintiff’s counſel, after the moſt mature conſideration.

1. This deed is a covenant to ſtand ſeized to uſes.

2. Before the ſtatute of uſes, viz. 27 Hen. 8. ch. 10, this deed would have paſſed a fee, 1 Co. Rep. 100 b. Shetley's caſe, though the word heirs is not in it. But ſince that ſtatute, the limitation of uſes is in many caſes governed by the rules of common law; and no inheritance, in a covenant to ſtand ſeized to uſes, or other deed to uſes, can be raiſed, or new eſtate created, without the word heirs; becauſe the uſes are now transferred into poſſeſſion, and therefore muſt be governed by the rules of poſſeſſion at common law. 5 Bacon's Abr. 350. 356. and the caſes there cited. And at common law, though the intent of the parties be ever ſo fully expreſſed and manifeſted in a grant or other deed, without the word heirs, a fee ſhall not paſs. 6 Mod. 109. 2. Vezey 252. 1 Wilſon 351. 2 ''Blackſt. Reports.''

3dly. There are no words in this deed, either technical or relative, that can raiſe a fee, and conſequently Abraham Vandegrift had thereby only an eſtate for life in the premiſes.

Let judgment be entered for the Plaintiff. 

HE jury were at the bar to try the iſſue in this caſe, when Levy moved to diſcontinue, in conſequence of a power of attorney granted by the plaintiff for that purpoſe. But it was oppoſed by Ingerſolt in behalf of General Forman, to whom, for a valuable conſideration