tween Hunt and his wife on the one part, and Davidson on the other. Davidson was what the law calls a stranger unconnected by blood or marriage; the deed would seem, then, to fail, as a covenant to stand seised, from the want of a good consideration, in like manner as it failed as a deed of bargain and sale, from the want of a money consideration. The object of the deed was to vest the title in Davidson as a trustee for the family; and the question is, whether this deed, in any view of it, can execute that intention consistently with principles of law.

One of the earliest cases on this subject of a covenant to stand seised, in which the covenant was with a stranger, is Lord Paget's case, in 31 and 32 Eliz.; 1 Leon, 195; 1 Co. 154 a. Lord Paget there covenanted with Trentham and others that he would stand seised to their use for the term of twenty-four years, and then to the use of his son in tail; and it was held that the term was void, because there was no consideration to raise an use, as T. and others were strangers to the consideration of blood. The same point was decided in Wiseman's case, in the 27 of Eliz., 2 Co. 15. The party there, in consideration that his lands should continue in his family name and blood, and for other good considerations covenanted that he would stand seised to the use of himself and of his heirs male of his body, and after to the use of his brothers in tail, and for default of such issue, to the use of the queen, her heirs and successors. In this case, the court of common pleas resolved that no use was raised to the queen, because there was no pecuniary consideration, and the consideration of blood did not apply to the queen.

We have here two strong and ancient cases showing that no use can be raised on a covenant to stand seised in favor of a stranger not connected by blood. And with what firmness did the court of common pleas maintain the rule, even under the reign of Elizabeth, though the doctrine went to defeat a use raised in favor of that arbitrary princess!

But these two cases do not come closely to the point now under discussion. The stranger in those cases was intended to take a beneficial interest under the conveyance, upon his own account, whereas, in this case, Davidson was to take only as a trustee for the family. The next case, then, in the order of time, is Smith v. Risley, Cro. Car. 529; Wm. Jones, 418; 2 Roll. Abr. 783, pl. S. C., which was in the 14 of Charles I., and which does not come quite up in principle to the case before us.

The case was this: A man by indenture between him and four others, of whom one was his brother, and the other three were strangers, covenanted, in consideration of love and affection for his wife and children, to stand seised for the use of himself for life; and then after his death to the use of his wife for life, and then to the use of the four covenantees, in fee, in trust, that they should apply the rents and profits to raise portions for his younger children, and then to the use of his son and the heirs of his body. After the death of the grantor, the three covenantees who were strangers sold the land, by deed, to the covenantee who was the brother, to the intent that he should perform the trusts, and the question was, whether the covenant to stand seised was valid, seeing that all the covenantees, except one, were strangers in blood to the covenantor. This question was argued several times at the bar, and the court of K. B. decided that the uses were well raised, and vested solely in the covenantee who was a brother, because he was of the blood; but they were not well vested in the other covenantees, and no estate passed to them because they were strangers, though the estate was limited to them in trust to raise portions for other persons.

This case is cited by Baron Gilbert in his "Treatise on Uses," as a good authority; and Mr. Sugden, in his late and valuable edition of that work (Gilbert on Uses, by Sugden, p. 247, note), says, that if the covenantees had all been strangers, no use would have arisen, although limited for the benefit of the blood or family of the covenantor, and not for collateral purposes.'

This case appears to me to be in point. None of those strangers could take, even in trust for the children of the covenantor; and had not one of them fortunately been a brother, no use could have arisen. In the present case here is a regular conveyance, by bargain and sale, to James Davidson, in fee, in trust for family purposes. The deed is void as a bargain sale, and if we construe it as a covenant to stand seised, it is then a covenant with a stranger to stand seised to the use of the stranger in trust, that the stranger shall hold and apply the land for the uses declared in the deed. But the misfortune is that Davidson, the stranger, stands here alone and by himself. Here is no brother to redeem the deed. According to the decision in Cro. Car., and which appears never to have been questioned, the use fails for want of a covenantee who is a relation by blood or marriage. In the opinion given by the supreme court, it is said that Davidson was merely made use of

as the conduit or instrument through which the beneficial interest was to flow to others. But that was also the case in Smith v. Risley. The covenantees there were only to take in trust for the family of the covenantor. They are the mere conduits or instruments; and yet the case says, those who are strangers and not connected by blood, cannot be such instruments. Why the courts originally established so scrupulous a rule, it is not for me to say. I can only say, that a covenant to stand seised is a peculiar species of conveyance, confined entirely to family connections, and founded on the tender considerations of blood or marriage. No use can be raised for any purpose, in favor of a person not within the influence of that consideration. There is no cold, selfish, calculating motive to contaminate the contract, nor is the conveyance to be profaned by the footstep of a stranger.

The case of Sympson v. Keyles, decided in 1657, was cited in Foster v. Foster, T. Raym. 49, and it contains the same doctrine. A father had, by deed, given land to his son, in consideration of affection, but livery was not made, and it was held good as a covenant to stand seised. But " a difference was taken, where the father gives to a stranger, to the use of himself, remainder over; there no use arises; but when the conveyance is to the party himself, there the use will arise."

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The next case in succession is that of Hoare v. Dix, 1 Sid. 25, of which we have heard so much upon the argument. That case was decided in the C. B. very early in the reign of Charles II. One J. P., by indenture between him and T., his son, the one part, and two strangers of the other part, in consideration of natural love and affection which he had to his son, T., granted and enfeoffed the two strangers of lands, to the use of himself for life, remainder to his son, T., and the heirs male of his body, with remainders over. He also covenanted with the two strangers that they should enjoy the land to the uses in the deed specified. The deed was not duly made so as to operate as a feoffment, and the question was whether the son took under the deed as a covenant to stand seised. The court decided that no use was raised by the deed, seeing there was no consideration to raise it, it being a deed to strangers. This is also a case in point against the deed before us; for the deed was to the two strangers for the entire use of the covenantor and his son, and they took no beneficial interest, any more than Davidson, in the present case.

The next case that is material to this point is Jackson v. Jack

son, in 4 Geo. II., Fitzg. 146, in which A., being seised of lands conveyed the same by feoffment, to feoffers, to the use of himself for years, remainder to his wife for life, remainder to his sons in tail. The deed was defective for want of livery. The counsel for the defendant said that the deed could not have the effect of a covenant to stand seised; for the trustees, being strangers in blood to the grantor, no use could arise to them. And the lord chancellor, King, said he was of opinion the deed could not inure as a covenant to stand seised, for the same reason. A similar case arose in chancery, at the very same term, in Nugent v. Hancock, 22 Vin. Ab. 196, pl. 13. A., by voluntary deed, covenanted with B. and C., who were strangers, to stand seised to certain uses, and upon certain trusts. It was objected that the plaintiff, who claimed as a grandson, could have no benefit under the settlement, for that the trustees, being strangers to the consideration of blood, no uses arise to them according to Lord Paget's case, and of this opinion was the lord chancellor. It was then suggested that there might be a difference, where the estate, trust, or use, in the trustees, was limited for the benefit of the blood and family of the covenantor, and where for other purposes; but no such distinction was allowed, and the bill was dismissed.

We have thus traced a series of cases from the 31 Eliz. down to the 4 of Geo. II, all speaking the same general language, and declaring that a stranger, whether he takes any beneficial interest or not, cannot be a party to a covenant to stand seised, because it is a family conveyance, and is founded on the consideration of family affection. We will next examine and see whether there be any cases to destroy, or essentially to weaken, the force of these authorities.

The first case to be noticed is Thorne v. Thorne, 1 Vern. 141, in 1682, in which a man had, by indenture, granted, enfeoffed, and confirmed his land unto trustees, to stand seised to the use of his three brothers. But the deed not being duly executed as a feoffment, the lord keeper decreed, without any difficulty, that it should work as a covenant to stand seised. This is all we have of the case, and it is a very brief note. It does not appear that the question as to the competency of the trustees was raised, nor does it appear whether or not they were strangers. They might have been persons embraced by the consideration of blood. The case, therefore, as it stands, proves nothing, one way or the other, as to the point in question. And can we suppose that the lord keeper would not

have paused, at least, had these trustees been strangers, and had the point been raised, when we consider the decision in Hoare v. Dix, made in the same reign by no less a judge and master of the doctrine of conveyancing than Sir Orlando Bridgman, the chief justice of the C. B.? It is further to be observed that, in the two subsequent cases in chancery, by Lord Chancellor King, no reference is made to this decision; yet those two cases are in direct opposition to what is supposed, by the counsel for the defendants in error, to be the doctrine in this case. It is most apparent, therefore, that this case of Thorne v. Thorne is not, and has never been, regarded as any authority in favor of a covenant to stand seised to the use of a stranger.

But there are two cases later than any which we have been reviewing, and decided by Willes, C. J., in 1755 and 1757, which are supposed to affect the authority of the decisions in favor of the plaintiff. In Doe v. Salkeld, Willes, 673, the lessors of the plaintiff claimed under a deed of settlement made between A. of the first part, B. of the second part, and C. of the third part. By this deed, A., in consideration of a marriage then intended between him and B., and for a jointure and provision for her, granted and released to B. and C. certain lands, to hold to the use of B. for life, and in bar of her dower, then to the heirs of her body, and then to his own heirs. The marriage took effect, and A. and B. died, leaving an only child, and the deed was held to be a good covenant to stand seised. Lord Chief Justice Willes, in order to take the case out of that of Hoare v. Dix,' said that the conveyance here was not to a stranger, and it was a grant in consideration of marriage. Who C., the person associated with B. in the deed as one of the covenantors, was, does not appear. Being of the same name, he was probably a brother of B.; at any rate, it is sufficient for the present purpose that the court say that the conveyance there was not to a stranger. And if C. had been a stranger, yet the competency of B., the intended wife, was enough, according to the case of Smith v. Risley. If any one covenantee be of the family, it is sufficient.

The other case cited from Willes's Reports, is Roe v. Traumer, Willes, 682; S. C., 2 Wils. 75. The question there was, whether a lease and release, being made to convey an estate in tail, to commence in futuro, could operate as a conveyance at common law, and the court held it could not; but they were of opinion it could take effect as a covenant to stand seised to uses. The