Lessee of Dulany and Wife and Dangerfield vs. Edward Tilghman, 6 G. & J. 461

Dorsey, J., delivered the opinion of the court. The argument on both sides concedes, that the deed of 1759 (by reason of the insufficiency of the acknowledgment thereof) unsupported by any subsequent legislation, was insufficient to pass such interest in the real estate in question, as resided in the feme-covert grantor, Eleanor Rozier, at the time of its execution.

But it is insisted by the appellant’s counsel, that this defect is cured by the act of the general assembly of Maryland, passed at April session, 1787, ch. 19, which it is alleged was enacted for the remedy thereof, and for no other purpose; and that the sole object of the applicants for this law, and of the legislature in passing it, was the passage of

an act confirmatory of the deed of 1759, and the giving it the same effect and operation as if the acknowledgment of its grantors had been taken according to the form prescribed by law. If we could be convinced that such was the design of the legislature, it must be carried into effect. But their intention must be ascertained, not by remote inferences or vague conjecture, but collected from the nature of the application made to them, and the terms they have used in granting it. Of the contents of the petition presented to the general assembly, we have no knowledge, but as they are recited in the

preamble to the laws, which states that the petition set forth, not the fact that the deed of 1759 was inoperative or insufficient, by reason of the informality in the acknowledgment of the feme covert, and prayed for the passage of

an act curing that defect, and giving to the deed the same operation as if it had been obnoxious to no such objection ; but after detailing the provisions of the deed, states, that the petitioners conceiving the deed of bargain and sale so executed insufficient in law for settling the lands according to the purposes therein mentioned, have prayed that

an act may pass for vesting an estate in fee simple in the said moiety of the land called “Bennett’s Lowe” in the said Eleanor, the daughter of the said Thomas W. Rozier, subject to an estate for life in the same, in the said Henry Rozier., the father; and after his death, to the dower of the said Eleanor Rozier, the younger, the mother of the said infant daughter, and also for vesting an estate in fee simple in the said tracts of land called “Aquonsick ,” and ‘Aquonsick Enlarged,” in the heirs of the said Notley Rozier, deceased, the eldest son of the petitioners, Henry Rozier, and Eleanor, his wife. In this petition, as inserted in the

preamble of the act of assembly, there is not one word or expression distinctly intimating that the petitioners were aware of the insufficiency of the acknowledgment to the deed ; not the slightest intimation of a wish for the passage of a law curing such defect, and confirmatory of the deed. From the circumstances before us, to impute to them such knowledge, and such a design, appears to us irrational in the extreme.

If cognizant of the inadequacy of the acknowledgment of the feme covert to pass her estate, they as well as the general assembly, ex natura rei, knew that the property remained in her; and that she and her husband, without any legislative auxiliary interposition, could at any moment execute a new deed, conveying the same according to their wishes. Possessed of such knowledge, can it for one moment be believed, that the petitioners would have put themselves to the trouble of applying to the legislature on the subject.

Nay — would they have listened under such circumstances to the exorbitant, unaccountable, and oppressive condition, imposed by the legislature, that lands of equal value with the moiety of “ Bennett’s Lowe,” should be conveyed by Henry Rozier to Notley Hosier’s heirs, before the deed of settlement should be confirmed ?

Can it be supposed if this were the informality to be rectified, that where the petitioners, 'proprio jure, had all the right and power necessary to do that, for which they asked the legislative sanction, that when they offered to settle upon Notley Rozier’s heirs, more than one thousand acres of land, and contrary to the tenor of their deed, to relinquish Henry Rozier’s life estate therein, that the legislature of Maryland, whilst they sanctioned without scruple or restriction, the proposed settlement on Notley Rosier’s heirs, would have imposed on the petitioners, the extravagant and unreasonable condition, that their assent to the settlement on Thomas W.

Rozier’s infant heir was only given, provided an additional settlement of lauds of equal value with that made on Thomas W. Roster’s heirs were added to the settlement proposed to be made on Notley Rosier’s heirs.

According to the petition, Henry Rosier and Eleanor his wife, in right of the said Eleanor, were entitled to the tracts of land called Aquonsick and Aquonsick Enlarged, and a moiety of the tract of land called Bennett?s Lowe, and by their deed of settlement of 1759 had, reserving the life estate of Henry Rosier, attempted to convey the two first mentioned tracts to their son Henry Rosier in fee, with a limitation over on a contingency, which never happened, and the moiety of Bennett’s Lowe, after a like life estate, to their son Edward Rosier in fee, with a limitation over in fee, to their son Thomas W.

Rosier, on a contingency which did happen ; and according to the assumptions of the defendants’ counsel, this conveyance was wholly inoperative, by reason of the informality of the acknowledgment of Eleanor Rosier, the mother; her right to, and controul over these lauds remaining unimpaired, and with a perfect knowledge of these facts, and their rights, the petitioners applied to the general assembly to give their sanction and confirmation of this deed.

If the legislature were willing to act in such a case, as it appears they were, could they as far as Notley Rozier’s heirs were concerned, have hesitated for a moment to ratify the settlement upon the terms proposed by the petitioners ?

The property all belonged to Henry Rozier and wife; they prayed that it might pass to their descendants, in accordance with their deed of settlement, executed nearly thirty years before, except that Henry Rozier voluntarily relinquished his life estate, reserved by the deed in Aquonsick and Aquonsick Enlarged, the lands which had descended to the heirs of Notley Rozier, had the deed been of any validity, and which it was the design of the petitioners to settle upon them. Could the legislature have objected to the natural justice and equity of the settlement proposed ?

Could they, under such circumstances, have sought to impose other terms upon the petitioners than those which the petitioners offered ? It is impossible to believe it. But the legislature did impose her terms. Whilst they confirmed all the bountiful intentions of the petitioners towards the heirs of Notley Rozier, they refused their sanction to those in favor of the heir of Thomas W. Rozier — but upon the inconsistent, unreasonable condition, that Henry Rozier, the father, should first convey to Notley Rozier’s heirs land of equal value with the moiety of Bennett’s Lowe.

The inference is irresistible ; the legislature did not act on that state of facts which has been assumed on the part of the appellants.

They did not legislate to cure a mere informality in a feme covert’s acknowledgment of a deed, where the right of property still remained in the grantors, who were competent and anxious to give validity to the deed; but they conceived they were called upon to cure, not an informality in the execution of the deed, but an informality or defect in the body of the deed, which has been so drawn as not to effectuate the intention of the grantors; a defect incurable but by legislative interposition. They believed that the limitation over to Thomas W.

Rozier, his heirs, by a defect in the form of drawing the deed, had failed to take effect, and that the moiety of Bennett’s Lowe had vested in Notley Rosier, as heir at law of Edward Rosier; and such were the impressions of the petitioners, or they never would have troubled the legislature upon the subject, or submitted to the unjust and unconseientious condition imposed on them by the act of assembly.

And this condition is undeniably proved by the concluding words of the proviso to the act, which states, “that the said Henry Rosier shall, under the direction of the Chancellor, settle lands of equal value with the moiety of the said tract of land called Bennett’s Lowe, on the heirs of Notley Rosier, deceased, in the same manner, and with the same limitations, that the heirs of the said Notley Rosier, deceased, now hold the aforesaid moiety of the said tract of land called Bennett’s Lowe.

If the defect to be cured was in the acknowledgment of the deed, the right of property would have continued in the feme covert, without any pretence of title in Notley Rosier’s heirs; consequently, the heirs of Notley Rosier, taking no other interest in the lands of equivalent value, than they held in the moiety of Bennett’s Lowe, would, according to the terms of the act of assembly, have acquired nothing by the conveyance executed under the direction of the Chancellor.

At all events, this clause in the act of assembly demonstrates that the design of the legislature was not merely to cure a defective acknowledgment — to aid Eleanor Rosier to settle her property upon her descendants according to her wishes; but to divest the heirs of Notley Rosier of a moiety of Bennett’s Lowe, (which the law assumes that they then held,) and to invest the fee simple in the same in the daughter of Thomas W. Rosier. No other rational interposition can be given to this act of assembly.

The petition to the legislature does not pray for a confirmation, or curing the defective deed from Henry Rosier, and Eleanor his wife, to Edward Neale. The legislature in their

preamble, do not say that any confirmatory act ought to pass 3 but that, “ this assembly thinking it just and reasonable, that the settlement intended to be made by the said Henry Rosier, the father, and Eleanor, his wife, as a provision for their children should take effect, any informalities in the said deed notwithstanding.” Therefore, be it enacted, &c.; giving estates, not such as the deed gave, but sueb as the aet of assembly prescribed, corresponding, or consistent for the most part, with those intended to have been given by the deed, but differing from them in some essential particulars ; no estate was to pass to Eleanor Rosier, the grand-daughter of the grantors, until its full value had passed to the heirs of Notley Rosier, by the conveyance to them of the other lands by Henry Rosier; thus giving to the transaction the character of a purchase or exchange of lands by the grand-father for the benefit of the grand-daughter ; the legislature authorizing the transfer (after full consideration shall have been received,) of the lands of the infant heirs of Notley Rosier, made under the judicial sanction of the appropriate guardian of their rights, a court of Chancery; nay, so studious were the legislature in securing an ample indemnity to the infant heirs of Notley Rosier, that by the terms on which their divesture of the moiety of Bennett’s Lowe took place, they were not only indemnified by the conveyance of lands oí equal value, but in addition thereto, were relieved from Henry Rosier’s life estate in Aquonsick and Aquonsick Enlarged; thus receiving, most probably, at least one-third more than the value of the property which it was contemplated should pass from them by this legislative exchange.

When the legislature say, that the settlement intended to be made by Henry Rosier, and Eleanor, his wife, ought to be carried into effect, they do not mean, that the deed ought to be confirmed, but that the property therein mentioned ought to pass in the manner set forth in the deed. The settlement intended, and the deed executed for its accomplishment, are separate and distinct things. The deed might be abandoned or annulled, and yet in the language of the general assembly, the settlement intended ought to be carried into effect: it might be effectuated by an independent deed or by legislative enactment.

The act of 1787 is not confirmatory of the entire settlement in the deed of 1759, because it takes from Henry Rosier the life estate thereby secured to him in the tracts of land called Aquonsick and Aquonsick Enlarged, and gives an estate of dower in the moiety of Bennett’s Lowe to Thomas W. Rozier’s widow, to which, under the deed, she was not entitled; neither is it a simple confirmation of that part of the deed by which a moiety of Bennett’s Lowe was intended to be conveyed to Eleanor Rosier, the granddaughter of the grantors, because it fixes upon it a dower right, not derived under the deed.

Had the petitioners, as contended, merely sought the passage of

an act curing the defective acknowledgment of the deed, their wishes would have been distinctly avowed in their petition. Had the legislature designed to grant such an application to pass a mere confirmatory law, they would have used appropriate terms to express such, their intention. All prior and subsequent applications, and legislation upon such subjects, demonstrate this fact. There was no reason for making it

an act of confirmation ; every presumable object of the general assembly, and of the petitioners, would have been as effectually accomplished by the act, if not deemed confirmatory, as if it were so regarded. Nay, if it be viewed as a mere confirmatory act, the design of the petitioners would not be fully gratified. Thomas W. Rozier’s widow, in that case, would not be endowed; but looking to the act of assembly as of that independent character, which upon its face it purports to be, every object that the parties interested or the legislature could be presumed to have anticipated, was fully gratified.

It gave to Henry Rosier the faculty of investing a fee simple estate in his grand-daughter in a moiety of Bennett’s Lowe, upon the terms and conditions on which it was asked for, with the further condition imposed by the legislature. The supposed informality which caused the petition to the legislature, and to remedy which, they consented to lend it their aid, was in all probability the offspring of a misconception of the legal effect and operation of the deed of 1759.

Applying it to the principle applicable to common law conveyances, that a fee cannot be limited upon fee — that such a limitation over is void — and that the entire estate vests absolutely in the first takers, the petitioners and the general assembly appear to have acted under the impression that the grant to Henry Rozier vested in him the entire property, — that the conditional limitations over to Thomas W. Rozier and his heirs was wholly inoperative; and consequently, that upon the death of Edward Rozier without issue, the fee in the moiety of Bennett’s Lowe was cast by descent upon the heirs of JVotley Rozier.

To correct this imaginary frustration of the intention of the grantors, under the deed of 1759, was as well the object of the petitioners as of the general assembly. Whether if the rights of the parties had been as they were assumed to be, the legislative enactments of 1787 were nugatory and void ; as an unauthorized usurpation of a power denied to the legislature, upon principles of common right or constitutional restriction, is a question which the views we have taken of this case render it unnecessary for us to consider.

The title of the property, by reason of the defective acknowledgment remaining in the petitioners, it was unquestionably competent for the legislature, at their request, to settle it in the mode prescribed by the act of assembly. But it is alleged, that by the curing acts of 1807 and 1809, the property in question is made to pass under the deed of 1759, in the same manner as if the acknowledgment stood free from all exception, and the act of 1787 had never passed. Such was not the design of the general assembly in their enactments of 1807 and 1809.

They had previously settled the rights of the parties to the property in dispute,, by the most solemn legislative sanctions, and nothing was farther from their intentions than to disturb the settlement thus made, or legislate in reference to the deed embracing the property thus disposed of, — even if the case were included within the letter of those enactments, being without their spirit, it would not be embraced by them. judgment affirmed.