In the opinion delivered in this case at the last term, we assumed the correctness of the propositions with which the counsel has prefaced his argument, viz., that the intent of the parties is to govern in the construction of every deed; that the intent which is to govern is to be collected from the language of the deed; and if that be doubtful, the circumstances under which the deed was executed were to be taken into consideration.
It is not every intent of the parties, however, that can, when thus ascertained, be carried into effect. If it be one in contravention of the law, no effect will be given to it. Hill on Trustees, 455. We may assume, then, that the parties to this deed intended that Samuel G. Arnold, named as the grantee, should take and retain the legal estate, and that his sister and ward should take only the beneficial interest, — a right to have and receive the income and profits thereof. This purpose is just that which the statute was designed to defeat. No intent of the parties can stay the execution of the statute, in a case where the legal estate only is vested in the grantee, and the beneficial interest of the same estate is limited to another. Gregory v.Henderson, 4 Taunt. 772.
It is said, that in order to prevent the legal estate from being executed in the cestui que use, it is necessary to vest in the trustee, not only the legal estate, but the first use, and because, it is said, the first use only will be executed. So, it is also said, that a special trust is not within the act, because the first use is in the trustee; a special trust being one where the trustee is not a simple depositary of the title, but, in the contemplation of the parties, is to perform some act in the accomplishment of the purposes for which the trust was created. The inquiry in every such case is, was an active agency intended to be given the trustee, — any act required of him, in the execution of the trust, which requires him to take the income and profits, or, in other words to have the *Page 132 first use? If so, having the legal estate and the use, no further use limited thereon can be executed. Hill on Trustees, (231); Cruise Dig. tit. xii. ch. 1, §§ 14, 28. In the case before us, the only question is, whether the intent was, that the grantee should be charged with this active duty. There is no express provision in the deed for any act to be performed by the grantee. No act is specified which he is to perform. It is to be implied (there is nothing else in the deed from which it can be implied) from an intent expressed by the parties, that the use limited to the said Eliza, should be for her sole and separate use, to the exclusion of all control of her husband, — a purpose which could not be accomplished unless some one were interposed to take the rents and profits — the first use.
Our enquiry is narrowed down to the question, which we have heretofore considered as the only question in the case, whether the parties intended so to secure to the said Eliza the use of this estate as to exclude all power and control of her husband over it, and was this intent clearly and unequivocally expressed by the language they have used? In construing the language here, we do not see how we can, as it is suggested we ought to do, assume that the statute of uses, formally introduced, as it was, and declared to be in force here, and, as the committee who reported it in 1749 say, "it has heretofore been," was always against the policy of this State. The legislature are the better judges of what policy requires; and whatever they enact, we are to presume to be such as policy requires. The provisions of this act, when introduced here, were introduced with the construction then put upon them in England. If they had undergone changes since that time, down to the time when this deed was executed, these changes are not to be disregarded. We ought not, however, to be governed by modern enactments indicating a change in the policy of our law in relation to this subject, passed since the contract of the parties.
In the form of conveyances with warranty in general use, the language of the habendum is, "To have and to hold to him, the said (grantee) his heirs and assigns, and to his and their only proper use, benefit, and behoof forever;" and by this language the estate is expressed to be limited to the use of the grantee, excluding *Page 133 any resulting or implied use in any other person. It limits to him the first use. It is appropriate language to declare a simple use, and is so commonly used and understood; and had the parties here retained this language as to the grantee, and then limited the further use to the said Eliza Harriet, the use to her could not have been executed. But instead of limiting the first use to Samuel G. Arnold, the grantee, the parties have, using the same language, limited the first use to the said Eliza, giving her, therefore, a like simple use.
We may assume, we think, that there is nothing in the language of this deed, either in the premises or in thehabendum, which would leave a reasonable doubt, that the use here limited was a simple use, requiring no act whatever to be done by the grantee, and excluding no marital right. Yet it is in these portions of the deed that the use should be declared. They are the parts appropriate to that purpose, — where it is naturally to be looked for. No one, failing to find it there, would, in the expressive language used in Tyler v. Lake, "fish elsewhere in the instrument" for the expression of such an intent. It is not necessary to say, that expressions used elsewhere are not to be regarded, or that such expression of intent may not be sufficiently clear and unequivocal. The language of the court in Tyler v. Lake, does not exclude them from consideration, but requires only that they shall, in order to be controlling, be so clear as not to leave the court to speculate as to what the probable intent of the parties was, — not such as raise a doubt merely, or even, as expressed inAshcraft v. Little and others, 4 Ired. Eq. 236, as raise a probability that the marital right was to be excluded. They ought to be such as strike the mind as having been designed to supply the omission of such expression of intent in its proper place, or as designed to make a further limitation.
A consideration much relied upon in the argument was, that the covenants in this deed, being made with the grantee, his heirs and assigns, would be void, unless the legal estate remained in him, and would not inure to the benefit of the cestuique use. Were such the result of holding this to be a use executed, this consideration should weigh strongly against such a construction. No such consequence, however, would follow. The proposition *Page 134 assumed is not maintainable. All covenants running with the land, upon alienation, pass to the assignee, and inure to his benefit; and it is not material whether the conveyance be voluntary or not, — whether it be by deed or by statute conveyance. A conveyance by a sheriff, under a levy, is sufficient for this purpose; White v. Whitney, 3 Metc. 81; and a cestui que use is, for this purpose, deemed to be an assignee under the statute of uses, in the same manner as if a deed had been executed to him by the donee to uses. 1 Smith L. Cases, (30); 2 Sugd. 700; Rawle on Covenants, 360; Cornish on Uses, 180. In these cases, indeed, the covenants are always made with the grantee. It will be noticed of the covenant of seizin and of power to convey, which is especially referred to by the counsel, that it refers to the grant in the premises and the limitation of the habendum, and covenants that the grantor has good right to convey in manneraforesaid. In this covenant are no words suggestive of the idea of a separate use, or of the exclusion of the husband.
It is again said, that the release of the right of dower will not inure to the cestui que use, if the use be executed, but will be void. Any objection there might be to treating the release as the conveyance of an estate, we need not consider. The right here released was not an estate, and could not be until dower were actually assigned. It was a mere right, — a contingent right, — to have dower assigned. It was the proper subject of a release; and the effect of the release was, that the right became extinguished in the relessee, and the estate of the grantee became discharged of the contingent right, so that it would pass unencumbered to every successive assignee, the cestui que use being the first.
The language, then, from which the intent to create a separate use and to exclude the marital right is to be gathered, and as an unequivocal expression of it, is that contained in the covenant, that the grantee may quietly enjoy "to and for the sole use, benefit, and behoof of the said Eliza," and in the covenant, that the grantor will warrant to him, "to and for the sole use, benefit, and behoof of the said Eliza," and in the release to him of the right of dower, "to and for the sole use, benefit, and behoof of the said Eliza." As we have before said, these expressions, in the places where we find them, leave us only to speculate upon what was *Page 135 the probable intent of the parties; and we may now say, that they do not seem to be introduced there with any apparent definite purpose. In this connection, they do not strike us as words used more fully to declare, or further to limit, the use, or to supply any omission to declare it, in its proper place. They are not necessary to the operation of the covenant or of the release, in favor either of the grantee or cestui que use, and do not vary their legal effect. They are, however, sufficient, and only sufficient, to raise a doubt as to the other language of the deed, otherwise sufficiently clear.
It is suggested, that the draft of this deed was prepared by counsel. The witness who wrote the deed says only, that heprobably copied from a draft prepared by counsel, and assumes that it was so. It is further suggested, as incredible, that counsel should have used this language in a deed, except for the purpose of securing this estate against the husband's control. It seems to us quite as incredible, that, if such were the intent, and the deed drawn with that view, counsel should have left this language to be used in the covenant, where it was altogether unnecessary, and where it was unlooked for, and in limiting the use with apparent care in the habendum, and in its proper place, where only it would effect the intent of the parties, should have failed to use any such expressions; and this leads to the conclusion, that probably the draft was not prepared by counsel, but by some one who had no very definite idea of what was intended, or how the intent was to be carried out.
We are not satisfied that the decree rendered upon the former hearing was erroneous, or ought to be reversed; and our judgment is, that this petition for a rehearing be dismissed. *Page 136