CAROLINE HAWES, Administratrix of the Estate of HORACE HAWES, Deceased, v. HORATIO STEBBINS, HORACE DAVIS, J. W. BRITTON, GEORGE H. HOWARD, and EDWARD P. EVANS, 49 Cal. 369

By the Court, Rhodes, J.: This is an action brought by the administratrix of the estate of Horace Hawes, deceased, to quiet the title to certain real estate of which it is claimed the said Horace Hawes died seized, and which descended to his widow and' heirs-at-law. The defendants by their answer, claim to be the owners in fee of the said real estate; and they found their claim of title upon a certain instrument, called “ the deed of foundation of Mont Eagle University,” which they allege was executed by Horace Hawes in his lifetime, to-wit: on the 24th day of February, 1871.

The plaintiff demurred to the answer, on the ground that it did not state sufficient facts to constitute a defense—that is to say, that the deed is void. The demurrer was sustained.

The deed purports to “give, grant, alien and convey ” unto the defendants, their associates and successors, the real estate in controversy, in trust for the establishment and maintenance of Mont Eagle University, “to have and to hold the above granted lands and property, subject to the reservations aforesaid, unto the said parties of the second part, their associates and successors, to be appointed as hereinafter provided forever.” One of the reservations which precede the habendum clause, is as follows: “ Be-serving also unto the said grantor and party of the first part, in all the property herein granted and conveyed, an estate coupled with the possession and the rents, issues and profits thereof, to continue for and during his natural life.” The other reservations need not be noticed.

The instrument under consideration was evidently intended as a deed, and not as a covenant to stand seized to uses, or as a will. The plaintiff’s position is that the instrument is to be construed as creating a freehold, to commence in futuro, and therefore void. The common law of England was adopted by the statute of this State as the rule of decision. One of the rules of the common law is that an estate of freehold cannot be granted to commence in futuro, without the creation, at the same time, of a particular estate, which vests in immediate possession in some other person (2 Blackst.

Com. 165; 4 Kent’s Com. 233). The rule was undoubtedly of feudal origin, as suggested by the defendants; and after livery of seizin was no longer necessary to effectuate a conveyance of the estate the rule became a technical one; but it remained, and still remains, a rule of property, where not abrogated by statute. It has often been recognized and enforced in the Courts of the several States. (See Wallis v. Wallis, 4 Mass. 136; Pray v. Pierce, 7 Mass. 384; Gale v. Co-burn, 18 Pick. 400; Brewery, Hardy, 22 Pick. 380; Marden v. Chase, 32 Me. 33; Singleton v. Bremer, 4 McCord, 151.) In Gale v.

Coburn, supra, the grantor reserved to himself an estate for life, in words quite similar to those in this case, and on the question before us the Court said: “In the first place, we think that by any reasonable construction of this deed it must be construed to create a freehold commencing infuturo, and that it would be a forced construction to consider it as passing a freehold to the grantee, presently, and creating a new estate for life to the grantor, by way of reservation. The whole and entire estate is reserved to the grantor for his life.

The words ‘the right to use, occupy, and enjoy’ an estate, in a grant, operate to transfer the estate, and create a freehold when such right is for life, and I see no reason why they should not have the same effect in a reservation or exception. And the words added in this deed, ‘free of all rent or charge whatever, and all molestation in the same/ thereby vesting the entire possession and occupation, as well as the use and enjoyment, strengthen the conclusions derived from the use of those words, and constitute an absolute estate for life in the grantor.

Whether a particular provision in a deed constitutes an exception or reservation, technically, does not depend on the use of the word “except,” or the word “reserve,” but upon the nature and legal effect of the provision itself. The effect of this deed, I think, is to grant the land in fee to the grantee, but with this qualification, that the grantor is first to have a freehold estate in it for his own life.

Such a conveyance, if regarded as a feoffment or bargain and sale, is contrary to the rules of law, and cannot be maintained.” Many other cases might be cited to the same effect, but in view of the uniformity of the decisions on the question, it is unnecessary to do so. The rulé, though it had its origin when titles were usually conveyed by livery of seizin, has so constantly been upheld as a rule of property, since deeds were substituted as the mode of conveying titles to real estate, that it ought not to be disturbed by any action of the Court.

The remedy, if one be needed, should be provided by statute, for it would then‘be prospective only in its operation; and it has, in fact, been furnished by

section 767 of the Civil Code. Judgment affirmed. Remittitur forthwith. Mr. Justice MgKinstry did not express an opinion.