In Rembert v. Vetoe (1911) 89 S. C. 198, 2 A.L.R. 918, 71 S. E. 959, where the instrument contained an habendum "to have and to hold . . . from and after my death," the court satisfies itself with the citation of authority to sustain the proposition that "the reservation of a life estate by the grantor did not invalidate the deed as an attempt to convey a freehold to commence in futuro, it being effectual as a covenant to stand seised to uses."

Where, in West v. West (1892) 155 Mass. 317, 29 N. E. 582, a grantor conveys to his prospective wife in consideration of marriage, passing the right to the use and disposal of the estate for the wife's support in case of his death, reserving the use of the land during his life, and providing that the property shall revert to him in case of the wife's failure to survive him, it is said that "it [the instrument] can be construed as a covenant to stand seised, and supported, at least so far as to give to the demandant [grantee] an estate for her life."

In Watson v. Watson (1886) 24 S. C. 228, 58 Am. Rep. 247, an instrument in which the maker recites that he has granted, and does at his death grant, certain property to his wife, in consideration of the affection he bears her, is held to be valid as a covenant to stand seised to uses.

And in Pledger v. David (1812) 4 Desauss. Eq. (S. C.) 264, involving a deed in which the grantor reserves a third part of the premises during her life, the objection that the deed conveys a freehold to begin in futuro is answered by holding the deed valid under the Statute of Uses.

So, a deed worded so as not to take effect until after the death of the grantor is held, in Cook v. Cooper (1901) 59 S. C. 560, 38 S. E. 218, to be valid, notwithstanding its taking effect in futuro.

In Sumner v. Harrison (1898) 54 S. C. 353, 32 S. E. 572, where property was conveyed in trust to a person who was to hold for the term of twenty years after the grantor's death, it is said that, although it be implied that it was the grantor's intention to reserve the usufruct of the land for herself during her life, yet that "that

would not invalidate the deed, as an attempt to convey a freehold to commence in futuro."

In Kinsler v. Clark (1844) 1 Rich. L. (S. C.) 170, a deed providing that "no right or title whatever is to vest" in the grantees, during the grantor's lifetime, is held to create a remainder in the grantees, to take effect upon the death of the grantor; and the deed is construed as a covenant by the grantor to stand seised for herself during life, and for the grantees at her death.

See Den ex dem. Sasser v. Blyth (1796) 2 N. C. (1 Hayw.) 259, where, without discussion, a deed containing a clause providing that it shall not take effect during the lives of the grantor and his wife is held to be valid, as a covenant to stand seised.

See also Lauck v. Logan (1898) 45 W. Va. 251, 31 S. E. 986.

In Singleton v. Bremar (1826) 4 M'Cord, L. (S. C.) 12, 17 Am. Dec. 699, involving an instrument in which the grantor gives, "in case of his death," certain property to a designated person, it is said that "it is one of the settled rules of the common law that a fee cannot be created to take effect in futuro . and such a deed would therefore be void." It is held, further, that the instrument cannot operate as a covenant to stand seised, there being neither a good nor a valuable consideration expressed. The instrument recites that the grantor has received “full value," but no specific consideration is named.

(b) Necessity of good consideration in covenants to stand seised to use.

In England, the Statute of Enrolments required all deeds of bargain and sale to be enrolled, to be valid; and, to prevent the defeat of the purpose of the statute, the courts found it necessary to construe all deeds reciting a valuable consideration as deeds of bargain and sale, coming within the meaning of the statute. As a result of this, the mere recital in an instrument of a valuable consideration was sufficient to take it out of the category of covenants to stand seised to use, and to stamp it definitely as a deed of bargain and sale. An instrument reciting a valuable con

sideration could not be construed as a covenant to stand seised to use, and, accordingly, could not be brought within the terms of the Statute of Uses. Out of this situation arose the rule that deeds of bargain and sale, conveying freeholds to take effect in futuro, could not claim advantage of the Statute of Uses, but were void, under the common-law rule against conveyances of freehold to take effect in futuro. Inasmuch as the Statute of Enrolments is, as a general thing, not considered a part of the American common law, however, this rule, which depends upon that statute for existence, has not received much favorable consideration in the American courts.

In Marden v. Chase (1850) 32 Me. 329, involving a deed of bargain and sale, reserving the use, occupation, and control of the premises for the lives of the grantor and his wife, it is said that, "if the reservation is absolute, without any qualification, the deed will be utterly inoperative for every purpose," the rule being that of the common law that a bargain and sale of a fee-simple estate, to take effect in futuro, is inoperative and void. In this deed, however, the reservation is qualified by the words "for their support and maintenance," and, on the ground that the reservation was thus restricted and qualified, the deed is held valid, although creating an estate in futuro. It seems to be the position of the court that, under such a qualified reservation, the grantee takes something at the time of delivery. In referring to this case in Wyman v. Brown (1863) 50 Me. 139, in which it is held that, under the Statute of Uses, a deed of bargain and sale may convey an estate in freehold, to commence in futuro, it is said: "It is true that, in Massachusetts and this state, when determining that the deeds then under consideration were valid upon other grounds, judges have expressed the opinion that a freehold to commence in futuro could not be conveyed by a deed of bargain and sale; but these opinions are mere obiter dicta, for they have never yet had the effect of defeating a deed." The court goes on to say that "it was a principle of the

old feudal law of England that there should always be a known owner of every freehold estate, and that the freehold should never, if possible, be in abeyance. This rule was established for two reasons: (1) That the superior lord might know on whom to call for the military services due from every freeholder, as otherwise the defense of the realm would be weakened. (2) That every stranger who claimed a right to any lands might know against whom to bring his suit for the recovery of them; as no real action could be brought against anyone but the actual tenant of the freehold. Consequently, at common law, a freehold to commence in futuro could not be conveyed, because in that case the freehold would be in abeyance from the execution of the conveyance till the future estate of the grantee should vest. And it is laid down in unqualified terms in several cases in Massachusetts, and in one in this state, that an estate of freehold cannot be conveyed, to commence in futuro, by a deed of bargain and sale, which owes its validity to the Statute of Uses, and not to the common law. But the doctrine that freehold estates to commence in futuro cannot be conveyed by deeds of bargain and sale, since the passage of the Statute of 27 Hen. VIII. chap. 10, commonly called the Statute of Uses, is clearly erroneous." In this case, the deed in question contained a clause reserving the "quiet possession and the entire income of the premises," until the maker's decease.

And in Drown v. Smith (1862) 52 Me. 141, on the authority of the preceding case, it is held that, although a deed provides that the grantee is not to take possession until the grantor's death, the grantor reserving full power and control over the farm during his natural life, such deed is valid, "notwithstanding it purports to convey a freehold estate to commence in futuro."

In Trafton v. Hawes (1869) 102 Mass. 533, 3 Am. Rep. 494, involving a deed of bargain and sale on a valuable consideration, containing an habendum by which the grantee was to have and to hold after the grantor's decease, the theory of the distinction between deeds of bargain and sale and covenants to

stand seised to use is denied. The court says, in part: "Prior to the Statute of Uses, deeds of bargain and sale and of covenant to stand seised did not operate to convey the title, but only the right to the beneficial use. As affecting the land itself, they were regarded as executory or unexecuted contracts. At law, they were of no force as conveyances. In equity, they were enforced by requiring him in whom was the legal title to hold that title for the benefit of him to whom the right of use had thus been transferred. A bargain and sale implies the sale and transfer of an interest existing at the time in the bargainor, whether in possession, or in remainder, or expectancy. A covenant to stand seised implies the creation of a new interest in the bargainee, out of the estate of the bargainor. In either case, the bargainor, having the legal title, was held to stand seised to the use of the bargainee: In the covenant to stand seised, because such was the nature of his contract, either in express terms or by judicial interpretation; in the bargain and sale, because the court imposed it upon him as an obligation resulting from his sale of the use, and necessary to give it effect. That construction was generally adopted which was best calculated to give effect to the instrument. Whether a deed belonged to the one class or the other was determined by the nature of the subject-matter and the apparent intent of the parties, rather than by the form of the instrument. Courts of equity, however, refused to be moved to interfere actively in favor of a mere volunteer. It became necessary, therefore, in all cases, to show that the deed was founded upon a good consideration. A 'bargain and sale' necessarily involves the idea of a valuable consideration. A covenant to stand seised does not exclude it. But the courts held that a consideration of blood or marriage was also sufficiently meritorious to Sustain a deed of the latter class. The Statute of Uses . provided that the legal title should follow the beneficial interest, and vest in the cestui que trust, ‘after such quality, manner, form and condition as they had before, in or to the use, confidence, or trust

that was in them.' Under this statute, it would seem that the rules affecting the consideration and construction of instruments would remain unchanged. The law simply carried the legal title where equity placed the equitable right. The Statute of Enrolments, passed during the same year, 27 Hen. VIII. chap. 16, provided that no lands 'shall pass from one to another, whereby any estate of inheritance or freehold shall be made or take effect, or any use thereof to be made, by reason only of any bargain and sale except by writing indented, sealed and enrolled.' In applying this statute, as it did not include covenants to stand seised, the courts found it necessary to construe all deeds upon valuable consideration to be deeds of bargain and sale. Otherwise, the purpose of the statute would have been entirely defeated; because a deed of bargain and sale, in form, might be construed as a covenant to stand seised, as it was in effect, and had always been construed whenever the nature of the case required; and a deed in form of a covenant to stand seised would operate to carry into effect that which was, in fact, a bargain and sale. The consequence was that all deeds founded upon a valuable consideration were required to be enrolled in order to be held valid, and, as they could be enrolled only as deeds of bargain and sale, it was held that they must take all the characteristics of a bargain and sale, according to the construction which had always been put upon that form of transfer. Covenants to stand seised upon consideration of blood or marriage continued to be good without enrolment, and were effectual to convey the legal title under the Statute of Uses. But they could not be aided by a valuable consideration, because, under the construction of the Statute of Enrolments, that had no effect, except to show a bargain and sale, void if not enrolled, and operating, if enrolled, only as a bargain and sale. Hence, it became, and has ever since remained, the settled law of England, that a covenant to stand seised upon a valuable consideration, without the relation of blood or marriage, is of no effect to pass title to

A deed of the grantor's property, personal and real, which may be remaining in his name and ownership at the time of his death, is held in Ricker v. Brown (1903) 183 Mass. 424, 67 N. E. 353, valid. "It is plain," the court says, "that he [grantor] intended to have the property during his life, and to retain the right to dispose of such portion during his life as he saw fit, and that at his death the balance should go to her [grantee] in fee simple. . . If there had not been reserved a power to dispose of the property during the lifetime of the grantee, there would have been no difficulty. It is held in this state that although a freehold estate cannot be created to commence in futuro, yet that, where the grantor is to have a life estate, the deed may take effect as a covenant to stand seised to the use of the grantor for his life, and, after his decease, to the use of the grantee and his heirs, the latter use, by operation of the Statute of Uses, becoming, on the death of the grantor, a legal estate in fee in the grantee.

. . And, whatever may be the rule in England and elsewhere, it is not necessary in this state that there should be any relationship by blood or marriage between the grantor and grantee.

We do not think that the existence of the power to dispose of the property prevents the application of the principle."

In Jackson ex dem. Howell v. Delancey (1825) 4 Cow. (N. Y.) 427, a deed in consideration of services to be performed, conditioned upon the grantee's permitting the grantor to remain in possession and retain the use and enjoyment of the property conveyed

not operate as a covenant to stand seised, it is void, because it purports to convey a freehold in futuro. It certainly cannot operate as a covenant to stand seised, for want of the considerations of blood or marriage." In the later case of Rogers v. Eagle Fire Co. (1832) 9 Wend. (N. Y.) 611, involving the same instrument, the court, after a long and illuminating discussion, reaches the conclusion that the Statute of Enrolments was never in force in that state, and that “a future freehold might be created by this conveyance, operating as a bargain and sale merely, provided it was founded upon a sufficient consideration to raise a use."

Where, in Jackson ex dem. Wood v. Swart (1822) 20 Johns. (N. Y.) 85, the grantors in a deed of bargain and sale, based on a pecuniary consideration, reserve to themselves "the use of the premises during their natural lives," the deed is held not to be invalid as creating an estate in futuro, a deed of bargain and sale founded on a pecuniary consideration, and conveying a future estate, being effectual as a covenant to stand seised to uses.

In Jackson ex dem. Watson v. McKenny (1829) 3 Wend. (N. Y.) 233, a grantor, by an instrument in writing, conveyed certain premises, and took back from the grantees on the same day a written instrument, declaring the intention of the parties to be that the grantor should hold and enjoy the property, and take the rents and profits thereof, during his life. After holding these two instruments to be parts of the same contract, properly to be taken and considered together, it is held that the instrument, although conveying property in futuro, is valid, as a covenant to stand seised. The court says that "it is abundantly settled that a deed of bargain and sale, founded on a pecuniary consideration, to take effect in futuro, is effectual."

See Bunch v. Nicks (1887) 50 Ark. 367, 7 S. W. 563, and Singleton v. Bremer (1826) 4 M'Cord, L. (S. C.) 12, 17 Am. Dec. 699, supra, II. a, 2, (a.).

In a few of the early cases, while hesitating to break entirely away from the English rule, as has more latterly been done, the courts sought to make a distinction on behalf of deeds of bargain and sale, where the relationship between the grantor and grantee was such that a good (as distinguished from a valuable) consideration might be implied therefrom.

In Brewer v. Hardy (1839) 22 Pick. (Mass.) 376, 33 Am. Dec. 747, it is held that a deed of bargain and sale from a father to a daughter, reserving the use and improvement of the premises to the grantor for the term of his life and that of his wife, while void as a deed of bargain and sale to take effect in futuro, is good as a covenant to stand seised to uses, a good consideration upon which such a covenant may be founded being implied from the relationship of the parties. This is on the theory that a deed of bargain and sale is on a valuable consideration, while a covenant to stand seised to uses can be sustained only by a consideration of blood or marriage. The authority for this decision is Wallis v. Wallis (1808) 4 Mass. 135, 3 Am. Dec. 210, where a deed of bargain and sale from a father to a son is involved, containing a clause "to have and to hold after the death of the grantor," in which it is held that, although not expressed, a consideration of natural affection, in addition to the valuable consideration set out, may be implied, and the instrument sustained as a covenant to stand seised to uses.

And in Chancellor v. Windham (1844) 1 Rich. L. (S. C.) 161, 42 Am. Dec. 411, a deed in which the grantor gives, grants, and releases to his son certain land, at his death to have and to hold, is held to create an estate in the son in futuro, valid as a covenant to stand seised to uses. The consideration of blood seems not to have been recited. The court says: "The authorities . . . show that a deed, whether in form a feoffment, a bargain and sale, or a lease and release, if the consideration of blood or marriage exists, may, to effect the intention of the parties, be construed to be a covenant to stand seised; that 'give,' and 'grant,' are apt words for such a covenant, and that it is the duty of courts,

by reasonable construction, to give effect to the intention of parties not inconsistent with law."

The Statute of Enrolments not being in force in the United States, there are no grounds for making any distinction between instruments because of a difference in the kinds of consideration recited. In the cases set out above, deeds of bargain and sale are held valid as covenants to stand seised to use, although dependent upon valuable considerations. In another case, an instrument in the form of a covenant to stand seised is held valid, although dependent upon a valuable consideration.

Where, in Exum v. Canty (1857) 34 Miss. 533, involving a deed in which the grantor covenants, in consideration of his "regard and good will," and services rendered and to be rendered, to stand seised to his own use during his life, and to the use of a trustee at his death, it is objected that the deed is invalid as a covenant to stand seised, for want of a sufficient consideration, there being neither the relation of blood nor of marriage between the parties, and it being urged that in such case, a good consideration will not support the deed, the court points out the valuable consideration recited, and holds it sufficient to support the instrument.

3. Under state statutes.

It is held in Bunch v. Nicks (1887) 50 Ark. 367, 7 S. W. 563, involving a grant "to go into full force and effect" at the maker's death, that, independently of the Statute of Uses, estates of freehold to commence in futuro may be created in that jurisdiction, the tenure being allodial, and it being specifically provided by statute that any person may convey his land, although another is in adverse possession thereof, and that "if any person 'shall convey any real estate by deed, purporting to convey the same in fee simple absolute, or any less estate, and shall not at the time of such conveyance have the legal estate in such lands, but shall afterwards acquire the same, the legal or equitable estate after acquired shall immediately pass to the grantee, and such conveyance shall be as valid as if such legal or equitable estate had