Cole v. Steinlauf

Baldwin, J.

(concurring). I agree in the result reached by the majority but am not in complete accord with all of the reasoning by which they reach it. I would prefer to rest the decision upon the follow*635ing grounds. At common law, in order to convey to a natural person a title in fee simple in real property, the document must run from the grantor to the grantee and “his heirs.” 2 Thompson, Real Property (Perm. Ed.) §734; 7 id. §3534; 1 Tiffany, Real Property (3d Ed.) § 28. If the word “heirs” does not appear in the premises of a deed, it must appear in the habendum. 1 Swift’s Digest, pp. 77, 122; see Chappell v. New York, N.H. & H.R. Co., 62 Conn. 195, 202, 24 A. 997; Loomis v. G. F. Heublein & Bro., 91 Conn. 146, 150, 99 A. 483. In the instant case, the deed in the defendant’s chain of title runs only to the grantee and Ms assigns and for that reason is insufficient upon its face to convey a title in fee simple in lands located in tMs state.

The defendant agreed to convey a title free of defects and incumbrances, with certain specific exceptions. The question is whether the omission of the word “heirs” in the deed in question is such a defect as rendered the title unmarketable and therefore justified the plaintiffs’ refusal to accept it. The defendant claims that, the deed having been drawn and executed according to the laws of the state of New York, it is sufficient because it is adequate under the New York statutes to pass an estate in fee simple in lands located in that state. See N.Y. Real Prop. Law §§ 240, 245. That being so, she asserts, the deed is good in Connecticut by virtue of General Statutes § 7087.

General Statutes § 7085 provides for the manner in which a deed of land in this state shall be signed, attested and acknowledged. It contains nothing, as do the statutes of many states, concerning the words necessary to convey any particular estate. See 7 Thompson, Real Property (Perm. Ed.) § 3534, p. 22, n.14. Section 7087, upon which the defendant relies, supplements § 7085 but goes no further than to pro*636vide that if a deed drawn in a foreign state for the purpose of conveying lands in Connecticut is signed, attested and acknowledged according to the laws of that state, it meets the requirements for signature, attestation and acknowledgment in this state. The .statute does not purport to deal with the nature or extent of the estate which the deed purports to convey. It does not obviate the defect claimed to exist in the case at bar.

While this deed in the defendant’s chain of title may be at law inadequate upon its face to convey a fee simple estate in real property located in Connecticut, nevertheless the true intent of the parties to convey such an estate may be shown in equity. Anderson v. Colwell, 93 Conn. 61, 65, 104 A. 242; Chamberlain v. Thompson, 10 Conn. 243, 252. The province of the court in the instant case, however, was not to try a question of title but only to determine whether the title offered by the defendant was unmarketable, thereby furnishing a valid excuse for the refusal of the plaintiffs to accept it. Frank Towers Corporation v. Laviana, 140 Conn. 45, 53, 97 A.2d 567. No doubt a determination whether the parties to the deed in question intended that it should convey an estate in fee simple could be made in some .appropriate action. Until that determination is made, the title offered by the defendant is sufficiently •questionable to make it unmarketable and to justify fhe plaintiffs in refusing to accept it.