Rogers against Moore, 11 Conn. 553

Huntington, J. Upon the facts agreed, for the purpose of the trial of this cause at the circuit, the jury were instructed, that the plaintiff had a title to the demanded premises, as tenant in common with the defendant, and had a right to recover, if she had been, by him, ousted and kept out of possession, which was submitted to them upon the evidence offered of an actual ouster. The general question, before this court, is upon the propriety of this instruction.

The opinion we entertain upon the principal question arising on this record, renders it unnecessary to consider several points which have been argued before us, by counsel. The claim of the defendant, to exclude the plaintiff from any participation in the property in controversy, rests upon the assumption that the tenant for life, by mortgaging in fee, prior to the birth of the plaintiff, forfeited his life estate, and as a consequence of such forfeiture, the remainder was defeated. We are all of opinion that such was not the legal operation and effect of the mortgage deed.

Whatever the law on this subject is, or has been. in Great-Britain, we have not adopted the principle, that an alienation by a tenant for life, by feoffment with livery, or by that which is equivalent to it, of a greater estate than he is entitled to, operates as a forfeiture of the life estate, or affects “ persons seised of ulterior interests” in the property. The principles on which the English law of forfeiture is founded, are as inapplicable to our condition and circumstances, as they are, in the consequences resulting from them, unjust and inequitable.

The just and reasonable rule has been established in this state, that a “ conveyance,” whatever the form of it may be, “ by a tenant for life or years, of a greater estate than he possessed, or could lawfully convey, passes only the title and estate which the tenant could lawfully grant.” Its operation is confined to the limits of the grantor’s right:-it works no forfeiture :-it neither destroys, nor tends to divest the expectant estate in remainder, It would not be difficult to point out the great injustice which would follow from adopting the strict rule of the ancient common law relating to forfeitures of this description ; nor to show how entirely inapplicable it is to the condition and circumstances of the people of this state, and to the policy of our law ; nor to exhibit the superior equity of the doctrine which sustains such alienations, as “ innocent conveyances,” passing no greater estate than the grantor may lawfully convey.

We decline, however, a critical examination of these points, principally, lest it should be inferred, from an elaborate discussion of them, that the judicial tribunals of this state haves at any time, doubted the existence, here, of the rule which has rejected the feudal law of forfeiture by alienation, and refused to give to a conveyance in fee, by a tenant for life, the effect of a feoffment with livery, by such tenant, at common law, of “ransacking the whole estate, and extinguishing every right and power connected with it.” It is sufficient to remark, that the doctrine, established in this state, that a conveyance by the tenant for life, of a greater estate than he possesses, or can lawfully convey, operates only upon the interest which he has in the estate, works no forfeiture, and defeats no contingent remainder, has become a rule of property ; and an adherence to it, is essential to the stability of our titles to real estate.

We are unwilling to raise any doubts as to the security of these titles, by entering upon a defence of the rule by which they are sustained, although its justice and reasonableness might easily be shown. As early as 1790, it was declared, by the superior in the case of Martin & ux. v. Sterling, 1 Root 210., that a tenant forfeiting his interest, by granting a greater estate than he hath in the lands, is borrowed from the feudal system ; but by the laws of reason and common sense, and by the laws of this state, a man’s deed or grant shall be good and I valid for so much as he hath right to, and void for the rest.

The court do not intimate, that they are stating any new rule as the law of this state. They simply declare what it is, and always has been. In conformity, as we believe, with the general understanding of the profession and the public, and supported by the authority of the case cited, it is presumed contingent remainders have often been created, in the full belief that they were not dependent on the will or caprice of the tenant for life ; and it is not improbable the titles to many estates depend upon a firm adherence to the rule, as it has always been understood in this state.

The sanctity of these titles we are not willing to invade, by introducing, now, for the first time, into our system, an ancient rule of the common law, extremely rigorous and unjust, founded upon feudal principles, which are inapplicable to our situation, not supported by any adjudication of our courts, nor adopted in practice.

By rejecting it, we avoid the odious doctrine of forfeiture, continue the life estate in the grantee of the tenant for life, uphold the estates dependent upon it, preserve the symmetry of our law, prevent injustice, and sustain the rights of the respective owners of the property, according to their respective interests in it. The jury were properly instructed as to the law applicable to the case before them ; and consequently, a new trial must be denied. In this opinion the other Judges concurred. New trial not to be granted.