B. & A. C. Browne vs. R. Browne, et al., 1 H. & J. 430

Hanson, Chancellor, (7th March 1799.) “The ease of the complainants, if they cannot succeed, is a Jiard one. It is always to be wished that what appears to have been a kind of family compact for settling their property on a fair and reasonable footing, should be carried into execution. But if the complainants counsel are acquainted with any decision or precedent Which may authorise a decree according to their wish» es, it is necessary for them to apprise the chancellor Where the case is to be found.

Many are the cases of disappointment and hardship sustained in consequence of the neglect or. failure of persons to execute deeds, or other instruments, for carrying their known and avowed intentions into effect; and the po.wer of this court, although it has gone as far as possible without directly infringing the statute of frauds and perjuries, and disregarding legal principles, has certain legal and reasonable limits beyond which it can never go. The claim of the complainants rests entirely, as if seems, on what they call a covenant in James Browne’s deed, for further assurances.

But was the consideration expressed in that deed such as may be deemed a, valuable pr valid one? Did this court ever oblige a man to do that which without any such consideration he has, by writing under seal, said he covenants to do, for a person who has neither covenanted to do any thing on his part,-nor even signed the writing? Suppose James Browne were now alive, a citizen of Maryland, and seized of the lands in question, would this court, 9n the application of the representatives of IJa-pl and Bennett, the grantees, compel him to convey in conformity to the said covenant?

Has it ever been understood that this court, as a thing of course, obliges a man to do whatever he has by writing engaged to do? No-r-so far from it, this court does not enforce an agreement without a proper consideration, and there are even cases where an agreement has been made vvith a proper consideration, and has been fair and unexceptionable in every respect, and yet, on account of some after circumstances, this court feas refused to enforce it.

The chancellor offers these, remarks to the. counsel bi order that they may, if possible, remove the dsffi» culties in their way.’5 The cause having been afterwards argued by the complainants’ counsel, the chancellor, on the 28th of November 1799, decreed as follows: «‘That he has again.carefully read and considered all the proceedings, as well as the written arguments.

Conceiving the question of vast importance, not only to the complainants, and those interested under Robert Browne, but to the community likewise, and having no aid from the counsel of any of the defendants, he has bestowed a laborious attention on the subject. The result of his researches and reflections is an opinion that the relief prayed by the bill is unauthorised by any former decision, would be contrary to the last and best authorities, would be repugnant to law, and might afford a dangerous and mischievous precedent.

The relief is prayed on two grounds — A defective Conveyance to be aided — An agreement to be enforced. In one respect, at least, this court considers a defective conveyance, and an agreement to convey,- in the same light. In each of them it requires a valid consideration as essential. Indeed, in the case of an agreement, a good, a valuable, or even adequate consideration, is not always sufficient; hut the court determines, on a view' of all the circumstances, whether or not it will exercise its discretion in decreeing a conveyance.

The complainants certainly cannot be in a better state.than they would be in if James Browne were npw alive, seized of the lands in fed, and the defendant in this cause. It appears to the chancellor that the void deed made by James Browne, and the covenant (as'it is called,) contained in that deed, must be -considered as merely voluntary; that is to say, they were made from the impulse of his own will alone, and not in consequence of a previous agreement with any person whatever, and therefore this court would not have interfered to control his will.

The estate of Cochrane did not come to James lBrowne from the complainants, or their father, uncle or grandfather, and it is not even suggested that Cochrane gave James Broxvne the said estate on the. condition, or with a request that he should convey to bis two younger brothers tiie lands which his father Charles Browne should suffer to descend to him in Maryland. "What then can be imagined the consideration flowing (rom the father, the brothers, or any other person? If James had those lands on condition that he should give them to his brothers, where was his advantage?

It was indeed impossible; but there is nothing to induce a belief that he took them on that secret condition. Can any man seriously consider the recital, respecting the father’s inclination, as conclusive of an agreement wit.i his father to take the lands on that condition. If such was really the fathr er’s inclination, if he meant that Basil and Bennett should have the lands in the event of James’s succeeding Cochrane, how strange it is, that he did not secure the arrangement by a devise or conveyance.

It is possible, that a man in Ms last sickness, and not having time to execute a proper will, might express an inclination to bus eldest son- — but if he did, the son wouid not be legally bound, and whatever conveyance of land, which liad descended to him from his father, he might think proper to make to a brother or sister, would he considered as voluntary. This, at least, is the idea of the chancellor.

It does not to the chancellor seem clear from the, hooks, what are the defects in a deed made on the best consideration, which this court will supply merely on the idea of supplying the defect, but whatever they are, it is necessary,- as has already been intimated, that there be a valid consideration in the defective depd. There is a wide difference between a consideration which will suffice to give operation according to the intent of the grantor, to a deed duly executed, acknowledged and recorded, and a consideration which will entitle the grantee to the aid of this court to supply the defect of a deed.

Had the deed of James Browne been indented, acknowledged, and recorded according to law, there is no doubt, except that which might arise from the circumstance of his being a British subject, that it would have operated according to his intent. But not having been either indented, acknowledged or recorded, it is the same thing as if it never had been made.

It was, it is repeated, merely voluntary; he had no effective consideration for it; and he could not have been compelled to make it, if even the inclination of his father had. been ex» pressed under his hand and seal, ' How numerous are the cases, and how deplorable many of them are, where a man makes a voluntary promise, breaks his word, and almost the heart of the party, and yet passes with legal impunity! It is not eontended, that, in this respect, the law is right; but it is notorious that so the law is.

Can then a reason be assigned why a man executing a voluntary defective conveyance shall be compelled to execute an effective deed, when if he had only made a voluntary promise to execute such a deed he would not be compelled? There can be no sensible, substantial distinction between the cases; and the covenant in the present case is merely a voluntary promise to convey. The consideration (if such it can be called,) of the defective conveyance, and the consideration for the covenant, being one and the same, viz. the inclination of the father.

It has however been said, that there was a valid, consideration, although not expressed; and that when a consideration exists, it is immaterial whether or not it be expressed. The chancellor conceives, as matters stand, that it is unnecessary to examine whether or not the consideration of natural love and affection, be such a consideration as- will entitle the grantee to the aid of this court to supply a defect. He conceives that the consideration of natural love and affection is out of the question, because it has not been expressed in the deed; and not being expressed, it is not to be supposed to have operated.

The doctrine of the counsel appears novel and strange, when applied to a deed which plainly expresses the consideration or motive for making it. it is wisely said by a late elegant writer on equity, “that a court of equity, no more than a court of law, shall supply a will (or intent) for the grantor, it will only do that which it is manifest the grantor would have done had not the mistake been made.” That is as much as to say, this court shall not presume to assign an intent, or consideration, or motive, when the real intent, or consideration or motive, is plainly expressed.

When no consideration whatever is expressed, there may be plausibility in asserting that the consideration of a deed from one brother to another was natural love and affection. It may be there said that the consideration is to be sought. But when that consideration was omitted, and yet the grantor thought it necessary oi* proper to express a consideration, with what propriety can any tribunal whatever say, or indeed, how can it believe, that natural love and affection was the motive?

Suppose James to be the defendant, called on to execute a good deed — his very opposition to the bill would prove that natural love and affection were out of the question, or that, even if it operated at the time, he has since changed; and he ought to be as free now, as he was at the time of making the deed, nay, it is doubtful, under all the circumstances disclosed by the bill and answers, whether or not James Browne-really intended that the deed should operate in favour of his brothers.” Bill dismissed, but without costgi The Complainants appealed to this Court. Shaaff, for the Appellants.

The chancellor in his decree has stated this to be a case of much hardship, but has considered himself bound by the rules of law to deny the relief prayed. It surely would be greatly to be lamented if the law had made no provision in such eases as the one before the court. The principles of a court of equity are not in this instance at war with the ordinary maxims of common justice, and it can be shewn that, according to the nature of this eeartj* and in conformity to former determinations, the complainants ought to have obtained the object of their application, and that the present decree should be re-versad.

The statement of the bill is unquestionably true, and is fully proved by the recital in the deed. The grantor f James Browne,J there states, that he succeeded to the estate under a will, or as heir to Charles Browne, that in his life-time Charles Browne expressed bis inclination, that if he, James, succeeded to Coch-rane’s estate, he should convey to Bennett and Basil Browne any estate lie should succeed to by Charles’s death. At this time the fee was in Charles Browne, and it, must have been wholly optional whether he would suffer the estate to devolve on James or not.

It in therefore evident that James must have agreed to accept the estate on these terms, otherwise it is not presumable but (bat Charles would have made a different disposition of the estate.

It is here to be remarked, that U>e deed exhibited is, by an agreement. in the cause, admitted to have been executed by James Browne; and since the complainants are those entitled to the estate of Bennett and Basil Browne, and the defendants are those who have the legal estate of James Browne, the grantor, by descent or devise, the cause is to be considered in the same manner as if the bill had been filed by the original grantees against the grantor in the deed.

It therefore follows, (hat the recital in the deed is good evidence of what is recited; and as in the present instance the recital stands not contradicted by other evidence, it must be taken as true. No principle of evidence is belter established than that the recital in a deed is evidence against, “the parties and those claiming under them.” The only question that can occur in this case is, whether the deed is made under such circumstances that tiie court will aid its defects. There is no doubt but that chancery has the general power to aid defects in conveyances when made on proper consideration.

So many instances of this kind daily occur, that it would be Waste of time to refer to authorities. Chancery will aid a mistake in a conveyance, as if the name of the lessor or lessee is ■omitted. So if, in a feoffment, livery is omitted, or if a bargain and sale is not •enrolled. Many cases of ■this kind are collected in 2 Com. Dig. 170, 171, 172, 173. With respect to conveyances wholly voluntary, courts of chancery have generally left them to their legal operation, without affording any aid. T.he conveyance in this case may be considered in two points of view. 1.

As being made on a good consideration, and ?* As being made on a valuable consideration. First point. Had the present deed been made by ■Charles Browne, the father of the grantor, to his sons Basil and Bennett, there .could have been no doubt. Defective conveyances, by parents, as a provision for children, have been often aided in this court. The principle has been recognized'by our court in the case of PitseVs heir vs. Pitsel, decreed about five years ago, and also 1 Fonb. Eq. 341. 1 Vern. 132. 2 Com. Dig. 122, 126.

Thus stands the lav/ as between a parent and a child, and the principles of equity equally apply to brothers and sisters. This subject will be much elucidated by an examination into the law of uses both before and after the statute of uses — 27th Hen. VIII. ch. 10. Before that statute it is certain that the cestui que use had no legal estate in the landy that his estate was only in equity, and his remedy in equity! and that such remedy was allowed is unquestionable.

St is also equally certain, that since the statute', a bargain and sale, or a covenant to stand seised to uses, which do not operate by way of transmutation of possession, will not raise a iise except there be a cohsideration-3 Bac. Ab. 362. The reason of which determination is, that after the statute no estate was executed except for such use as the party could have had before! of course if there could be no use before, none could be executed after the statute.

If it can be established that before the statute, the relationship of brothers wás a sufficient consideration to raise a use, then in this case a sufficient consideration is proved; because as the cestui que use had no legal estate, but only a title in equity, h® would not be entitled to the aid of a court of chancery, except he shewed a good or valuable consideration to raise the use. Here the authorities are decided, that the consideration of blood, as between a parent and a child, or brothers, is sufficient to entitle a man to the aid of chancery.

If a man parts with land in advancement of his issue, and to provide for the con-veniencies and necessary settlements of his family, it is fit the chancery should make them good conveyances where they want legal validity, &c. Therefore, if a man, in consideration of natural love and affection, covenants to stand seised to the use of a son or brother, this is a good use — 5 Bac. Ab. 362. Fraternal love, &c. is a good consideration to raise a use by way of covenant; for this is a consideration of Wood, and a brother is next in degree after parents and children, &c. 5 Bac. Ab. 363.

From these, and many other authorities, it appears that the considera* tion of blood between brothers is sufficient to raise a use on a covenant to stand seised; and if this reasoning is correct, it clearly establishes that there is no want of consideration in this case; because the grantor and grantees in the deed are brothers; and it also appears that that relationship would form a sufficient consideration to raise a use on a legal conveyance under the statute, and of course a sufficient consideration to justify the interposition of this court, independent of that law, no change in this respect being made by it. it may then be assumed as a con-cesszim, that the consideration of blood between brothers is a sufficient consideration to justify the court of chancery in remedying the defects of a conveyance, It will only remain to be proved, that the court can in this case take notice of this consideration, although it is not expressed in the deed.

The true distinction which governs in these cases is, that you cannot aver any consideration that contradicts a deed, hut you are pt liberty to aver any consideration that will stand wjth it; for example, if the deed states a pecuniary consideration you shall not be permitted to allege that money did not. form part of the consideration, but you may aver that something else, together with money, made the consideration, The English authorities decidedly prove this point, although the chancellor in his decree holds out a different opinion.

A bargain and sale* in consideration of £76, it may be averred that it was made in consideration of marriage' as well as £70. 1 Co. 176. 1 Bac. Ab. 275, 276. Second point. That there is a valuable consideration. It must be remarked, that no person in the relation of creditor or purchaser is in any manner to be affected by the relief prayed for; if there was it might be a sufficient answer to the present application; On reflection there will be found a complete valuable consideration to support this conveyance, without taking into view the relative situation of the parties to the deed.

When a man is under a moral obligation to do any thing, although he cannot be compelled to do it in any court either of law or equity, and promises to do it, the honesty and rectitude of the thing is a consideration^ — Cowper, 290. Let this case be tried by that rule. Charles Browne had three sons,. James, his heir, and two infant sons, Basil and Bennett.

James was heir expectant to Jlndrew Cochrane¿ Charles Browne told his son James, that in case he succeeded to Cochrane's estate, he should convey the estate he suffered to descend to him, (James,J to his brothers Basil and Bennett¿ This James agrees to, because Charles’s estate is permitted to descend to him* James does afterwards succeed to Cochrane’s estate; On the happening of this event James was surely under every moral obligation to make the conveyance to his brothers.

It was under this confidence that he was suffered to inherit his father’s estate, and it would have been a violation of the most sacred duty if he had not complied with the injunction of his father. James appears to have seen this subject in a proper point of view, by executing the deed in question. But unfortunately, through ignorance of the law, it was not so completed as to pass the legal estate, by which means, if it is not remedied by this court? his younger brothers will be left without any provision, and the benevolent intention of his father wholly frustrated.

This would create a good consideration to support any subsequent conveyance from James to his brothers Basil and Bennett, and would have been sufficient to justify the court in decreeing a specific performance, liad the case rested alone on a covenant to convey. If the executors of James Browne were in Jl-mericá, and suit ivas brought on the covenants in this deed, can there be a doubt but, that under the circumstances of the case, the measure of damages would be the value of the land?

It is no objection to the relief to say that- the transactions which formed the consideration of the contract was between Charles Browne and James Browne, in which Basil and Bennett had no agency,* because, although not present, the object contemplated was for their benefit. Cases of a similar nature have already been determined. Defendants’ father, who was also father to plaintiff’s wife, was about to cut ¿£1800 worth of timber off an estate which was to descend to defendant. The ¿£1000 to-be a portion for a daughter, defendant’s sister.

The defendant promised the father to pay the ¿£1000 to his sister, provided the father did not cut the timber. The sister, and not the father or his executors, must bring the suit. Dutton vs. Poole, 1 Vent. 318. 1 Esp. 106. A physician was promised a sum for himself? and another for his daughter, if he performed a cure. The daughter may have assumpsit. Ibid. So in the present case, Basil and Bennett Browne, being children of Charles, and the arrangement being for their benefit, they are not strangers to the consideration. James’s deed is afterwards made immediately to Basil and Bennett.

The analogy between the consideration of the promise in the case of Dutton vs. Poole, and the present case is striking. There land with the timber on it would have descended to the heir, but the ancestor could have broke the descent when he chose} ho was about to fell timber for a daughter’s provision, amounting to ¿elOOO-The heir promised the ancestor, (his father,) that he would pay the daughter the ¿flOOO if he did not feli the timber; and the daughter, his sister, recovered.

In the present case the land would have descended to James Browne, but the descent might have been broken by Charles Browne, the ancestor; he agreed that the land should descend to James, but James was to convey it to Basil and Bennett on the happening of a certain event, which afterwards did happen. It would appear strange if a transaction of this nature was destitute of consideration, or that any contract made by James Browne- in compliance with the solemn requisition of his father; and with the terms on which he inherited his estate, should be considered as a nudum pactum.

The reasoning on this subject seems to be conclusive in favour of the present application; and on examination it will be found, that courts of equity have extended their aid to cases much less favourable than the present. “An heir claiming title to land* threatened to evict the tenant in possession, who also claimed title. The tenant agreed that ifhe died without issue to leave the land, or <£500, &c. This agreement was carried into effect against the devisee of the tenant.” 1 Vern. 48.

If an uncle, in consideration of natural love and affection, and in order to gain a reconciliation between the nephew and the father, (whom the nephew had disobliged,) covenants to settle his estate on the nephew. This agreement shall be executed in specie. 2 Com. Dig. 122. 1 Chan. Rep. 158. The present is a much stronger' case for relief, tyian the one just referred to. For these reasons, the complainants think themselves entitled to have there-lief prayed for, and that the decree .of the chancellor ought to be reversed. Winchester, for the Appellees . The Coukt oe Appeaxs, [Rumsey, Ch. J.

Mackall, Jones, Potts and Dennis.

J.] at this term, (June 1803,) reversed the. decree of the court of chancery, and «‘adjudged, &c. that the chancellor pass a decree thereby ordering and decreeing that the appellee Charles Dr otoñe, for himself, and, the Infant defendants, Robert and Sarah Browne, by their guardian or guardians, to be appointed by the chancellor for the purpose, shall by a good and sufficient deed or deeds of bargain and sale, to be duly executed, acknowledged and recorded, convey unto the complainant, Basil Browne, and his heirs, three undivided fourth parts of all the following tracts or parcels of laud, to wit: A tract or parcel of land called Meagrehohn, containing 608 acres of land, lying in Queen-Jlnne’s county,’ one other tract or parcel of land called Ashley, containing 95 acres and one half acre, adjoining to the said first mentioned tract j and one other tract of land called Ilobb’s Venture, containing 281 acres, lying in Caroline county, which arc the same lands intended to have been conveyed by the deed executed by James Browne to Bennett and Basil Browne, and dated on the 25th of July 1777, and ex. hibited in the bill in this cause filed — 'ind ordering and decreeing, that the said Charles Browne, for himself, and the infant defendants, Robert and Sarah Browne, by their guardian or guardians by the chancellor for that purpose to be appointed, convey to the other complainant, Andrew Cochrane Browne, and his heirs, by a good and sufficient deed or deeds of bargain and sale, to be duly executed, acknowledged and recorded, the remaining undivided fourth part of the said three tracts of land above described.

And it is adjudged, &c. that each party pay their own costs, as well in the court of chancery as in this court.”