Sanford vs. Sanford. 55 527 73 221 JOHN W. A. SANFORD, plaintiff in error, vs. DANIEL B. Tenant for life did not forfeit his estate in the land by selling and conveying Life estates. Forfeiture. Before Judge BARTLETT. Baldwin Superior Court. February Term, 1875. On June 20th, 1874, John W. A. Sanford brought complaint against Daniel B. Sanford, for house and lot situated in the city of Milledgeville. Amongst other defenses the defendant pleaded the statute of limitations. The evidence disclosed the following facts: By the will of Jesse Sanford, the property in dispute was devised to John W. A. Sanford for life, with remainder to his children, one of whom was the plaintiff. This instrument was admitted to probate on March 9th, 1827. The life tenant died in September, 1870. Before his death, in July, 1835, he made an absolute conveyance of said house and lot to one James Gladdin. Defendant showed a regular chain of title, accompanied by possession, from Gladdin to himself, covering two-thirds of said property; he filed a disclaimer as to the other third. John W. A. Sanford, the life tenant, left three childrenthe plaintiff, Eugene, and Theodore G. The plaintiff held a conveyance from the latter covering his interest in the property in controversy. At the time of trial, February, 1875, plaintiff was fifty years of age and Theodore G. thirty-nine. The jury, under the charge of the court, found for the defendant. The plaintiff moved for a new trial, upon the following grounds, to-wit: 1st. Because the court erred in refusing to charge "that if the plaintiff holds the title of Theodore G. Sanford, and he, Theodore, was only twenty-five years old when the statute of 55 527 106 780 Sanford vs. Sanford. limitations was finally repealed, in 1863, then his right of action is not barred, and he is entitled to recover." 2d. Because the court erred in charging the jury, without qualification, "that if J. W. A. Sanford, the life tenant, did, in 1835, sell and convey absolutely, the land in dispute, his said sale of the fee did instantly work such a forfeiture of the life estate to the remaindermen as gave them the right of entry and of action then, and set the statute of limitations in motion as against them, and that seven years adverse possession by the purchaser, under color, barred the right of action of plaintiff as a remainderman." The motion was overruled, and the plaintiff excepted. SANFORD & FURMAN, for defendant. BLECKLEY, Judge. What was the common law? Blackstone, in 2 Com., states it thus: "Alienations by particular tenants, when they are greater than the law entitles them to make, and divest the remainder or reversion, are also forfeitures to him whose right is attacked thereby. As, if tenant for his own life aliens by feoffiment or fine for the life of another, or entail, or in fee; these being estates which either must or may last longer than his own, the creating of them is not only beyond his power and inconsistent with the nature of his interest, but is also a forfeiture of his own particular estate to him in remainder or reversion." Reading this passage attentively it seems plain that the learned commentator did not intend to teach that all alienations by particular tenants, when they are greater than the law entitles them to make, are attended with forfeiture. His words are, "alienations by particular tenants, when they are greater than the law entitles them to make, and divest the remainder or reversion," etc. In giving examples he does not say that if tenant for his own life aliens for the life of another, or entail, or in fee, he forfeits his own particular estate; but that he incurs the forfeiture if he "aliens by feoffment or fine," Sanford vs. Sanford. etc. That Blackstone means to restrict the rule of forfeiture to alienations which divest the remainder or reversion, is shown, too, by the authority to which he refers. He cites Co. Litt., 251; and there Lord COKE says: "It is to be observed that a forfeiture may be made by the alienation of a particular tenant, two manner of ways; either in pais, or by matter of record. In pais, of lands and tenements which lie in livery, (whereof Littleton intendeth his case,) where a greater estate passeth by livery than the particular tenant may lawfully make, whereby the reversion or remainder is divested, as here in the example that Littleton putteth when tenant for life alieneth in fee, which must be understood of a feoffment, fine or recoverie by consent." Feoffiment, fine and common recovery, were modes of alienation which divested remainders and reversions. Undoubtedly, to enfeoff a stranger in fee simple was to incur a forfeiture of the estate for life or years: 2 Black. Com., 153. But there are many direct assertions in the books to the effect that conveyance by bargain and sale works no forfeiture. In 4 Comyn's Dig., Forfeiture, (A. 3,) it is laid down that, "if tenant for life bargains and sells to another in fee, it is no forfeiture," citing 2 Leo., 60. In 3 Bacon's Abr., 465, Estate for Life, (c,) the like doctrine is asserted in these words: "So, if tenant for life of lands, by indenture enrolled, bargains and sells them to J. S. and his heirs, this is no forfeiture, but the bargainor passes only what he may lawfully pass; for though by the statute 27 H., 8, c. 10, deeds enrolled grew a common conveyance for the transferring of lands, which could not pass at common law without the investiture of livery, yet being a manner of conveyance known before at common law, it was construed to have no new effect given it by the statute but what the statute expressed." In Stearnes on Real Actions, pp. 10, 11, this statement occurs: "But it is to be observed, that even in England, no conveyance of the particular tenant creates a forfeiture, except those which divest the remainder or reversion; which effect is produced only by feoffment, fine, and common recovery. A conveyance by lease and release, or bar Sanford vs. Sanford. gain and sale, made by the particular tenant, and purporting to convey the fee simple, is no forfeiture, nor will it defeat a contingent remainder; because the operation of these conveyances is only to transfer to the releasee or bargainee such estate as the releasor or bargainor may rightfully convey: 2 Leon., 60; 3 Mod., 161. And this distinction between the operation of a feoffment, fine and recovery on the one hand, and a bargain and sale, lease and release, and covenant to stand seized, on the other, is what is meant by the expression which sometimes occurs, where the former are described as tortious, and the latter as rightful conveyances." Numerous other authorities bearing in the same direction might be cited. Quite a number of them will be found referred to by Judge WALKER in the able dissenting opinion which he delivered in King vs. Leeves, 36 Georgia Reports, 199; an opinion so excellent that I despair of adding to it anything of value in this or any other which I might attempt on the same subject. It should be mentioned, (as was glanced at by Judge WALKER,) that there are, in the books, traces of forfeiture as incident, sometimes, to general warranty of title in conveyances even by bargain and sale. The record before us in the present case is not such as to call for a decision on this special topic. But, as tending to throw some light on the effect of warranty in modern conveyances, I refer to 2 Smith's Leading Cases, American Notes, pp. 519, 520, 521, 529, edition of 1847. See, also, 18 Georgia Reports, and compare with 22 Georgia Reports, 627. I will observe, moreover, that dicta by writers are to be met with suggestive of this distinction; that though a conveyance by bargain and sale would not, of itself, produce forfeiture, forfeiture might, nevertheless, result from letting the purchaser into possession under such a conveyance, the admitting of the purchaser into possession of the land, super-added to the bargain and sale, being the same, in effect, as technical livery of seizin. I have, however, seen no distinct adjudication of such a doctrine of forfeiture. Sanford vs. Sanford. Accepting Blackstone's exposition of the common law as correct, and construing his language in the light of Coke upon Littleton, the authority to which he himself refers, a majority of the court believe that, tested by the common law, the case at bar is not one of forfeiture. And they are of opinion, also, that no legislation of Georgia has introduced any new case of forfeiture by alienation. In our statutory provisions touching deeds of bargain and sale, it was not the purpose of the legislature to bring in an old feudal incident which previously did not attend that mode of conveyance: See 3 Dall., 486. Nor by declaring that a fee simple estate should always be implied where a less one was not expressed, was it contemplated that the maker of a deed should be able to convey an estate greater than his own, or divest that of any other perTenant for life and remainderman are not even privies in estate: 29 Georgia Reports, 374; nor is the former a trustee for the latter: 27 Ibid., 96. son. Forfeiture had its origin, not in the idea of trust, but in the idea of allegiance, of fealty. For the tenant to usurp and dispose of the estate of his lord, or of his lord's heir, or of those appointed by his lord to take in remainder, was disloyal. It savored of rebellion, and was punished with forfeiture. But, at best, there was something in the contrivance that must have been troublesome; for, as they seized the land and not the price, the real loss could not but fall sometimes, and perhaps most frequently, upon an unfortunate or indiscreet feoffee, instead of upon the revolted tenant who made the wrongful feoffment. In reference to protecting, by legal or equitable remedies, the reversion or remainder against waste, that would be as practicable with the land in the possession and use of the life tenant's vendee, as with it in the possession and use of the original life tenant himself. The latter was never restrained by law from parting with the custody and care of the premises after making a legal conveyance of his own interest. Whoever succeeded him was bound, in respect to waste, just as he had been bound. That is still the position of the ven |