Hollingsworth, et ux. vs. M'Donald, et al., 2 H. & J. 230

At the present term the opinion of the court was delivered by Chase, Ch. J. In this case, the first question to be decided by the court is, what estate vested in Thomas Parkin* jn the land in question, under and in virtue of the deed from Jesse Hollingsworth, and Rachel .Lyde Parkin, to Lyde. Goodwin, executed on the 21st of September' 1790?.

The question arles on the following words in the habcn~ dura of the deed; “And from and after her decease, that Thomas Parkin, and his heirs, for ever, shall have and possess the said lands and premises; and in case of his the., said Thomas’s death loithout lawful issue, the said lands shall revert to and be veste4 in the said Rachel, and her heirs, for ever.” It is admitted that Lyde Goodwin, under this deed, took a fee simple in the lands in question, in trust for Rachel Parkin, during her life, and that the words before recited, would in a will create an estate tail in Thomas Parkin; but it is objected that those words in a deed will not create an estate tail, and that a fee simple passed to Thomas Parkin.

It is without doubt that the above words in a will would give a fee tail, because no technical words being necessary to create sucli estate. The intention expressed by the words of the testator must prevail if not inconsistent with some rule or principle of law; and the intention is plain here that Thomas Parkin was to take a fee tail. In a deed or conveyance of a freehold or legal estate* technical words are appropriated by law to the creation of limitation of particular estates; for instance, to create an estate in fee, the limitation must be to J.

S. and his heirs, and to create a fee tail, to J. 8. and the heirs of his body» It is established that the words eh corpore suo are not dispensably necessary, but- may be supplied by words equipollent or tantamount, plainly designating or pointing-out the body from whom the heirs inheritable are to issue or descend. In this case the limitation is to Thomas Parkin, and his.. liei,rs, and in case of his death without lawful issue, to revert to Rachel Parkin, and- her heirs. These words are comprehended in one sentence, and contain the two requisites necessary to constitute an estate tail.

The subsequent words, “in case of his death without lawful issue, qualify and restrain the generality of the precedent expressions, (to Thomas Parkin, and his heirs,) and point out, unequivocally and plainly, the heirs intended to inherit, and confine them to heirs of his body.

Thomas ParkiU could not die without heirs, as long as he had lawful issue; and in this case the words lawful issue, heirs of his body, and issue of his body, as words of limitation, expressive of the quality of the estate to be granted, are of the same import and, signification,, and necessarily designate the heirs intended to inherit, and do convert the' fee simple created by the first words, into a fee tail; for Thomas Parkin could not have issue, or lawful- issue, but of his body.

The court being of opinion, that an estate tail vested in Thomas Parkin; with^the reybreion in fee tq Rachel Lycle Parkin, under the $wd; and/being also of opinion, that the said words, in a-jEonveyance of a freehold estate, would create a fee tan, it becomes unnecessary to decide the ques- ■ tion, so ably and learnedly discussed by the counsel-, how far the court is at liberty, in expounding a deed of conveyance creating'or limiting an use or trust at common law, and not united to the possession by the statute of ijses, to reject the rules established by the common law, in the construction of a conveyance of a freehold estate, and to give an exposition according to the intention qf the parlies, as in a will, It is also unnecessary to decide on the nice and refined distinctions between trusts executed and 'executory; and the court gi.ve no opinion on those questions.

Jls to the operation of the,deed of 1796. It is unquestionable that a feme covert cannot transfer or pass her interest in land to another, urless by fine, common recovery, or deed executed and acknowledged according to the mode prescribed by the act of-1715; and the. question to be decided by tlie court is, whether the acknowledgment of the deed by Mrs. Hollingsworth is conformable to the said mode, and effectual to render the deed operative in law to convey her interest in the lands in dispute to her son Thomas Parkin?

The court are of opinion, that the acknowledgment is. substantially defective, the word “fear” being omitted in the certificate of the acknowledgment, and no word of similar import or meaning substituted in its place. The word fear, in that part of the certificate, means a particular specific kind of- fear, and signifies that she makes her acknowledgment without being induced thereto bjfear of ill-usage by her husband-. The true and genuine meaning of the words, “without being induced thereto by fear or threats of, or ill-usage by, her husband,” being fear of illrisage, threats of ill-usage, or actual ill-usage.

The court, in thus giving their, opinion, do not decide that a literal adherence to the form of the certificate is essentially requisite, and that the omission of words deemed essential,, cannot be supplied by*’(he substitution of words equipollent, or of similar import and signification.1 But the court are of opinion, that the deed is rendered valid and effectual to pass the land mentioned therein, to Thomas Parkin, in fee pimple, by the act of assembly, entitled, ‘ ‘An act for quieting possessions, and securing and confirming the estates of purchasers,” passed at November session 1807, ch. 52, it appearing .by the certificate of the acknowledgment of Jlachel Hollingsworth, that she made her acknowledgment privately and willingly, out of the presence and hearing of her husband.

As to the question, lohcther the present bill can be sustained? The decree of the chancellor is subject to his control, only upon a bill of review, or a bill in the nature of a. bill of review. A bill of review lies after,, the decree is signed and enrolled. A bill in the nature of a bill of review lies after the decree is made, but before enrolment. A decree must be considered as enrolled, after it is sign'ed by the chancellor, and filed by the register.

A bill of review will only lie for two causes — Erro? apparent on the decree, or for some matter relevant, existing at the time of the decree, and discovered since. Nothing appears on the proceedings on the first bill to support the position that there is error apparent on the decree, the deeds not being made a part of the proceedings.

It cannot be supported for matter' existing at the time. <pf the decree, and discovered since, without affidavit oí such matter, and the existence of it at the time of the decree, to lay the foundation for applying to the chancellor, for his leave to file a bill of review, and obtaining such leave, On petition suggesting such matter, supported by affidavit as the ground for filing a bill of review, the chancellor exercises his judgment on the propriety of interfering or meddling with1 his decree, for the cause disclosed, anti grants or rejects the application accordingly.

These requisites, for laying the foundation for the present bill, not having been complied with, the court are of opinion, that, the decree of the chancellor, dismissing the bill, be affirmed, with costs to the appellee, DECREE A^EIRMED.