¶1delivered the opinion of the Court. The rights
¶2of the parties are to be ascertained according to the true legal construction of the deed from Charles Brewer to his daughter Susan Brewer, dated the 23d of January, 1829. If she became entitled to the fee, it passed by her deed to the demand-ant. But if, at the time of the levy of the execution, in October, 1831, the title was in Calvin Brewer, it passed to the tenant For Calvin claimed under a deed from Charles Brew*380er, dated on the 10th of April, 1826, to Calvin Brewer, who was the judgment debtor.
¶3Now the intent of the parties to the deed from Charles Brewer to his daughter Susan, is very manifest. The reservation of the use of the premises for his own life and the life of his wife, Anne, was contained in the deed. So that as a deed of bargain and sale of a fee simple, to take place in futuro, it would be void. But if that were so, the demandant contends, and, we think, correctly, that it would be good as a covenant to stand seised to uses.
¶4The case is settled by Wallis v. Wallis, 4 Mass. R. 135, and the authorities which have been cited at the bar. The tenant however contends, that the deed, if construed as a covenant to stand seised to uses, gave to the covenantee only a springing use; 2 Cruise’s Dig. 354, tit. 16, c. 5, § 23 ; and that until the use arose, the estate remained in the covenantor and so might be taken. But this estate was not taken on execution as the property of Charles, but as the estate of Calvin And, besides, there is nothing to show, that this was a springing or shifting use. The use was declared for the covenantor and his wife and the survivor, and afterwards to Susan. Here was a freehold estate, capable of supporting the remainder, which by operation of law, then vested. The rule is clear, (2 Dough 757 ; 2 Cruise’s Dig. 358, tit. 16, c. 5, § 34,) that wherever there is a precedent estate capable of- supporting a remainder, the conveyance is to be construed to be a remainder, and not to be a springing or shifting use.
¶5It was argued for the tenant, that this deed expresses only a pecuniary consideration, and not a consideration of blood. But the case finds, that the relation of father and child by blood existed between the parties ; and that was just the case in Wallis v. Wallis ; but it was held not to be inconsistent with the deed to show a consideration of consanguinity, in addition to the pecuniary consideration, notwithstanding it was not expressed in the deed. The case of Wallis v. Wallis has stood not only unimpeached for thirty years, but is recognized as sound law. It is a part of the established legal conveyancing of the Commonwealth, and not now to be shaken by this Court.
¶6*381But k is argued, that the tenant’s grantor has recovered against Charles and Calvin Brewer in a writ of right, and so has defeated the remainder. It is an obvious and sufficient answer, that Susan Brewer was not a party, nor, in the sense of the law, privy in estate, in that suit. The judgment could only bind those who were. She had no day in court ; she was not called in aid, vouched or summoned to make any defence ; and it is too clear for argument, that she is not bound by the recovery.
¶7We are all of opinion, that the nonsuit, which was entered with a view to try the legal questions, must be taken off, and that the tenant may have an opportunity to prove, if he can, that the conveyance of Charles to Calvin Brewer, of the whole premises, and the reconveyance from Calvin to Charles, were in fraud of Calvin’s creditors, and therefore void.