Wells v. Newbold, 1 N.C. 166, 1 Tay. 166 (1802)

May 1802 · North Carolina Superior Court

1 N.C. 166, 1 Tay. 166

Jason Wells versus Levi Newbold.

The act of 1784 chap. 22, converted no estates tail into estates in-fee, but such whereof there was a person "seised or possessed;" and confirmed only such alienations in fee as had been made by tenants in tail in possession since the year 1777.

THIS was an action of ejectment brought to recover the possession of a tract of land in the County of Onslow.—William Wells patented the land in the year 1735 and by his will duly made and executed devised it to his two sons, Joseph and Henry, in the following manner, viz, “I give "and devise the plantation whereon I live to my “two sons, Joseph and Henry, and their heirs lawfully begotten of their bodies for ever, to be divided; each of them to have one half of the woodland and one half of the cleared ground, and in “want of heirs of either of them, then the whole “to go to the survivor or his heirs, and in failure “of both their heirs, then to my right heirs forever.” Joseph and Henry survived the testator. Henry died in the year 1749 without issue, living Joseph. Joseph by deed, dated the day of 1761 conveyed the premises to Stephen Lee and his heirs forever. The operative words of the deed were “give, grant, bargain and fell, alien, enseoff and confirm.” To it, there was annexed a covenant or warranty in these words. “And furthermore I the said Joseph Wells, for “myself, my heirs, executors and administrators, do “covenant, grant, promise, engage and agree to “and with the said Stephen Lee, his heirs, executors, administrators and assigns, the above bargained land and premises, together with all the “privileges and appurtenances thereunto belonging, for ever hereafter to warrant and defend against the lawful claim or demand of all manner “of persons whatever.” From the date of this deed Stephen Lee and those claiming under him had continually held possession of the land. Joseph Wells died in the year 1787, leaving issue, David, William, and Joseph. David, the eldest son, died in 1798, leaving issue Jason, the lessor of the plaintiff, a younger son, Josiah, and a daughter, Elizabeth.

The cause was argued at great length by Haywood and Sampson for the plaintiff and by Gaston for the defendant.

Gaston for the defendant.

The first object of enquiry appears to be, what estate Joseph Wells had in the land contended for, at the time of his conveyance to Stephen Lee. Should it appear that he was seised in fee thereof, it will follow that, having absolutely disposed of all his interest, the present plaintiff can claim nothing by descent from him. If, on the contrary, Joseph Wells was merely tenant in tail, it will then be necessary to examine whether the entry of the issue has been taken away.

I. The defendant contends that Joseph Wells was seised in fee. The words of the devise are, “To my two sons, Joseph and Henry, and their “heirs lawfully begotten of their bodies forever, “to be divided; each of them to have one half of “the cleared ground, and each of them one half of “the weed land: and in want of heirs of either of "them, then the whole to go to the survivor or his “heirs, and on failure of both their heirs, then to "my right heirs forever.” It is admitted that by the former part of this devise, estates tail are granted to Joseph and Henry and that the words “in “want of heirs of either of them” are to be construed as if they were “in want of heirs of the body of “either of them;" because it is impossible that either of them should die without heirs, as long as the other survived. Webb versus Herring, Cro. Jas. 416. But it is contended that the subsequent words, “and in want of heirs of either of them, then “the whole to go to the survivor or his heirs” did, upon the death of Henry without issue, in the life time of Joseph, vest in him (Joseph) an absolute estate in fee. The very definition of an estate in fee-simple is, where lands are given to a man and his heirs, generally and simply, without specifying what heirs, but referring that to his own pleasure, or to the disposition of the law. This is plainly the case here, “the whole to go to the survivor or his “heirs”—not heirs male, nor heirs female, not heirs of his body, but heirs, generally. The last words of the devise “and in failure of both their “heirs, then to my right heirs for ever” cannot, under the authority of the rule laid down in Webb versus Herring, before referred to, and in the other cases reported in the books, on the same head, be considered as confining the meaning of the word heirs just before used, to that of heirs of the body; because it is not impossible that the sons should die entirely without heirs, while there were heirs remaining of the father. The heirs of the father are not necessarily the heirs of the son, as the father may have children by different venters, who can not inherit from each other—It is therefore believed that, under the devise, each son was tenant in tail of the part to him devised, with remainder in the whole to the survivor in fee, and that the subsequent limitation over to the right heirs of the devisor is void, it being a limitation of a fee upon a fee.

II. If however it should be thought that Joseph Wells was but tenant in tail at the time of his conveyance to Stephen Lee, it is then contended that, by that conveyance, a discontinuance was made, which took away the right of entry of the issue in tail, and that an ejectment cannot be supported.

No position appears to be laid down in our law with more clearness or more force than that an ejectment will not lie, except the lessor of the plaintiff have in him a right of entry. Runnington on Ejectments, pages 10 and 11. 3 Black. Comm. 206. 3 Woodeson, 44 and 45.

Lord Coke defines a discontinuance, Co. Litt. 325. a. to be “an alienation made or suffered by “tenant in tail, or by any that is seised in auter “droit, whereby the issue in tail, or the heir, or “successor, or those in reversion or remainder, are "driven to their action, and cannot enter.” Estates tail are known to have originated from what were termed at common law “fees conditional.” These were fees limited and restrained to some particular heirs exclusive of others, as to the heirs of a man’s body, by which only his lineal descendants were admitted in exclusion of collateral heirs. A gift thus made, to a man and the heirs of his body, was considered as a gift on condition, that the thing given should revert to the donor, if the donee had no heirs of his body, but if he had, that it should remain to the donee. As soon as the donee had issue, his estate became to most purposes, absolute—He could alien the land, and thereby bar his issue, and also him in reversion. The nobility of England, anxious to perpetuate their possessions in their families, procured the statute “de donis conditionalibus,” (13 Edw. 1.) to be made, by which it was enacted that from henceforth in such gift the will of the donor should be observed, and that the lands so given should at all events go to the issue, if there were any, or if none, should revert to the donor. Upon the construction of this statute it was determined that an estate of inheritance still remained in the donor: this got the name of an estate tail. Innumerable inconveniencies attended estates tail. Some of them are stated with great force and elegance by Justice Blackstone in his commentaries. Children grew disobedient—farmers were ousted of their leases made by tenants in tail—creditors were defrauded of their debts—latent entails were produced to deprive purchasers of the lands they had fairly bought—and treasons because frequent.—They were justly branded as the source of new contentions and mischiefs unknown to the common law, and almost universally considered as the common grievances of the realm. In Anthony Mildmay’s case, reported 6 Co. Rep. 40, it was resolved by the Judges that “these perpetuities,” so they style them, "were against the reason and policy of the common law." In Mary Portington’s case, 10 Rep. 42, it was observed that “these perpetuities were “born under some unfortunate constellation,” and similar expressions are frequently met with in the ancient reporters. It is not therefore to be wondered at, that various artifices were used to elude these new restraints upon property. One of these was carried into effect through the medium of a discontinuance. This cannot perhaps be better explained than by using the language of the eminent conveyancer and lawyer, Mr. Buller, in one of his annotations on Coke Litt. 15 edit. Hargrave and Butler’s Coke Litt. 191 a. note 77, v. 8. “It has "been observed that, though the statute de donis "took away the power of lawful alienation, it did “not suspend the vesting of the fee. The alienation therefore of the donee, tenant in tail, was no “forfeiture: and the alience, as he took his conveyance from a person seised of the fee, was considered as coming in under a lawful transfer of “the inheritance. Now it was an established rule “of law, that whenever any person acquired a presumptive right of possession, his possession was “not to be defeated by entry. The consequence “of this was, that, in these cases the alienation was “unimpeachable during the life of the alienor, and "after his decease, the heir could not assert his title by the summary process of entry, but was “driven to the expensive and dilatory process of a “formedon: this was termed a discontinuance. “The expence and delay attending a formedon “frequently prevented the tenant in tail from resorting to it to assert his right. In the course of “time the period for asserting it elapsed, and thus “therefore, virtually, the discontinuance proved a “bar to the entail.” It was not however by every mode of conveyance that a tenant in tail could operate a discontinuance. No conveyance but such as took effect by way of transmutation of the possession, or such as on account of the particular solemnities attending them were deemed sufficient to disturb the original seisin, could of themselves work a discontinuance. Thus Litt. sec. 598, page of Coke 328, a. tells us, “if tenant in tail be disseised, and he release by his deed to the disseisor and to his heirs all the right which he hath in the same tenements, this is no discontinuance; because a release passeth nothing but the right which may lawfully be released, without hurt or damage to others; and therefore nothing of the right could here pass to the disseisor, but for term of the life of tenant in tail, who made the release.” Neither will a conveyance that takes effect by the statute of uses operate a discontinuance, where the possession remains with the party; for in such cases the original seisin is not disturbed: there is no transmutation of possession-a mere bargain and sale, it is conceded, cannot work a discontinuance. A seoffment certainly may. Thus Litt. sec. 595, page of Coke 326, b. "If tenant in tail of certain land, thereof enseoff "another, &c. and hath issue and dieth, his issue “may not enter into the land, albeit he hath title “and right to this, but is put to his action, which “is called a formedon en le descender." The conveyance referred to in the special verdict, and made a part of it, must be considered either as a seoffment, as a bargain and sale.—Why should it not be considered as a seoffment?

A seoffment is defined by Justice Blackstone, 3 Comm. 314, “the gift of any corporeal hereditament to another.” The apt words whereby to make it are “give, grant, enseoff.” To complete and perfect the seoffment, the seoffor used to give the seoffee seisin of the land; what the feudists called investiture. This was done by the ceremony called livery of seisin, which ceremony was held necessary to complete the donation. Had this ceremony been used at the time of making the con veyance, which we are now considering, that conveyance would undoubtedly have operated as a seoffment. It was an immediate gift of the inheritance. It has the technical and proper words “give, grant, enseoff.” It was intended to operate on the possession, as well as the right, the possession being here conveyed and the use limited to one and the same person. But our act of 1715, cap. 38. sec. 5. 23, directs that all conveyances of land proved and registered as by that act directed, “shall be “valid and pass estates in land, without livery of “seisin, attornment or other ceremony whatsoever.” The necessity therefore of livery of seisin to perfect a seoffment, is taken away by this act. The notoriety occasioned by a registration of the conveyance in the county where the land sieth, is adopted by the act as a substitute for the notoriety arising from the actual tradition of possession. This conveyance therefore, having been duly proved and registered, should have the same effect if livery of seisin had been made with it. It must then operate as a seoffment. Let it be remembered that the rule of law is, “that where conveyances may operate both by the common law and the Statute of Uses, they shall be considered as operating by the common law, unless the intention of the parties appears to the contrary.” See Hargrave and Butler. Co. Litt. 271, b. note 231. III 3, explaining the conveyance by lease and release,

But admitting the conveyance to be a bargain and sale, yet the warranty annexed to it works a discontinuance. Thus Littleton, sec. 601. p. 327. b. observes that “if the tenant in tail release to his disseisor, and bind him and his heirs to warranty, and dieth, and this warranty descend to his issue, this is a discontinuance by reason of the warranty.” For which Lord Coke immediately gives as a reason, “if the issue in tail should enter, the warranty, which is so much favored in law, would be destroyed.” In note 284, to 330, a. of Co. Litt. it is also stated that although a bargain and sale &c. &c. will not of themselves work a discontinuance, yet “if a warranty is annexed to a bargain and “sale, &c. it may produce a discontinuance.”

Here is a warranty. The words are "I the “said Joseph Wells, for myself, my heirs, executors and administrators, do covenant, grant, promise, engage and agree to and with the said Stephen Lee, his heirs, executors, administrators and “ assigns, the above bargained land and premises, “ together with all the priviledges, &c. &c. forever “ hereafter do warrant and defend against the lawful claim or demand of all manner of persons “ whatever.” If instead of do warrant, the phrase of to warrant had been used, there would be much force in the observation made by one of the counsel for the plaintiff, that this is not an actual warranty, but merely a covenant to warrant. The expression is do warrant. The conjunction and, perhaps, should have been infected, and then the intention of the parties would have clearly appeared—There would be then, both a warranty to bar the issue, and a covenant to indemnify and secure, which would bind executors. But without the insertion of the conjunction, if surplusage be rejected, there remains a clear warranty—If there be any ambiguity, the deed is to be taken most favourably for the grantee, and most strongly against the grantor.

Perhaps it will be laid on the part of the plaintiff, that although there be a discontinuance which takes away the right of entry, and although an ejectment cannot (as has been shewn) be brought but by him who has a right of entry, agreeably to the general principles of law, yet that as actions of formedon have never been in use in this country, and as only such parts of the common law and such statutes as were in force and in use here before the revolution, are declared by our legislature to be in full force now, within this state; if the lessor of the plaintiff have but a right of property, that will be sufficient to support an ejectment. To this it is answered, that admitting that actions of formedon cannot be brought, it is the province of the legislature and not of the courts to alter (if deemed necessary) the established principles of law; and that, if the courts could legislate on this subject, they would not do so in support of entails, which are so strongly reprobated by our constitution and bill of rights. [see bill of rights, sec. 23. & const. sec. 43] But it is denied that actions of formedon may not be brought. Such actions are expressly taken notice of and jurisdiction of them given to certain courts and witheld from others. See act of 1777, cap. 2. sec. 61. page 340. and act of 1785, cap. 2. sec. 1. page 547.

III. It is denied by the defendant that the plaintiff has in him even a right of property, which would enable him to support any action; and it is insisted that the absolute title to the premises in dispute, is in the heir of Stephen Lee, although Joseph Wells had but an estate tail when he conveyed to said Lee.

Let it be admitted that this conveyance passed a title prima facie good, yet defeasible upon the death of Joseph; defeasible, if not by entry, by suit. If it has not been defeated within the time prescribed by our act of 1715, for quieting men’s estates and avoiding suits in law, it has become absolute and indefeasible. Examine the 2d sec. of that act and it will be seen that this case is one to which it applies. “All possessions of or titles to “any lands, &c. &c. derived front any sales made "either by creditors, executors or administrators "of any person deceased, or by husbands and their "wives, or by husbands in right of their wives, “or by indorsement of patents or otherwise, of "which the purchaser or possessor, or any claiming “under them, have continued, or shall continue in “possession of the same for the space of seven years “without any suit in law, be, and are hereby ratified, confirmed and declared good and legal, to "all intents and purposes whatsoever, against all "and all manner of persons: any former or other “title, or claim, &c. &c. to the contrary notwithstanding.”

It would not have been easy to find language more strong, more comprehensive, than the legislature have used. This is a title derived under a sale, and the purchaser has continued in possession more than seven years without suit in law, while there were persons in being entitled to bring suit, and who did not come under any of the exceptions afterwards mentioned, who were not infants, femes covert, non compotes, imprisoned, or beyond seas. This title therefore, thus derived, is, in the words of the act, good and legal, to all intents and purposes, against all and all manner of persons.

It may be contended, on the part of the plaintiff, that the above recited clause was intended to operate only on sales that had been made previously to the act. But no evidence of such an intention is to be found in the act itself. The participle “derived” is used generally, and is as susceptible of a future as of a past signification. No auxiliary is prefixed to it to limit its time. It might with equal propriety have been subjoined to the verb to be, used in the future, as in the past tense. If the legislature had intended that this clause should operate only on titles that had been derived, it is presumable they would have so expressed themselves. If they had meant it to have effect on such titles only as should thereafter be derived, it would have been equally easy to declare such intentions in plain and precise words. Having used the word indefinitely, it is conceived, they had in view both descriptions of cases.—But should such a construction be put on this clause as the plaintiff will probably contend for, such a construction as will prevent its application to the present case, it is nevertheless firmly believed that the subsequent clauses of the act, the 3d. and the 4th. will be sufficient for the defendant’s purpose. Before our act of 1715, there were times of limitation settled, beyond which no man, either in an action to establish the right or to recover the possession, could avail himself of the seisin of himself or his ancestors, or take advantage of the wrongful possession of his adversary. By the stat. of 32. Henry 8. cap. 2. sixty years were made a limitation to a writ of right, and fifty years (in general) to an assize and writ of entry. By the stat. 21. James 1, cap. 16. twenty years were fixed as a limitation to entries and ejectments, and to actions of formedon. The words of this last mentioned statute as to formedons are strong and pointed. “All writs of “formedon in descender, &c. &c. of any manors, "&c. &c. at any time hereafter to be sued, or “brought, by occasion or means of any title, or “cause hereafter happening, shall be sued and taken within twenty years next after the title and “cause of action first descended or fallen, and at "no time after the said twenty years.” By this statute, if an action of formedon was not brought within twenty years after the right to such action had first descended, that is (as in our case,) after the death of the tenant in tail who discontinued, such an action could never afterwards be brought, neither by the immediate issue who permitted the twenty years to elapse, nor by the issue of that issue. The statute does not distinguish between them. It would indeed have been idle to call it a statute for avoiding suits in law, if it had permitted the subsequent issue in tail at any indefinite period of time to have brought an action of formedon, provided twenty years had not elapsed since his alledged title had descended.—Were this the case, the discontinuee and his heirs might enjoy the lands purchased for centuries, and yet be liable on the death of every heir of the body of the first tenant in tail to be evicted by his successor. That the construction contended for by the defendant is corrrect, will appear pretty evidently from the comment of Lord Coke on the statute 32 H. 8, and the note thereon. Co. Litt. 115. a. and note. Twenty years are also he limitation to entries by this statute. Our act of 1715, by its third and fourth cases, makes seven years a limitation to all actions respecting land; by declaring that no person shall either “enter or make claim” but within that period after the right to entry or claim accrues; and by declaring further that, with certain exceptions as to infants, &c. a possession of seven years without entry or suit in law shall be a perpetual bar against all and all manner of persons whatsoever, “that the expectation of heirs may not in a short "time leave much land unpossessed, and titles to "perplexed that no one will know of whom to take "or to buy lands.” Joseph Wells, it will appear from the special verdict, died in 1787. David, bis eldest son, lived till 1798; Stephen Lee, and those claiming under him being in actual possession of the premises during the whole period.

IV. The defendant also urges that his right to the possession of the premises is completely established, if it should fail on the preceding grounds, by the act of 1784, cap. 22. If that act converted the estate tail (admitting for the moment that such it was) into a see simple, the plaintiff is undoubtedly barred by the act of limitation.

The clause of the act which is believed to have this effect, is the fifth. This clause, reciting that “Entails of estates tend only to raise the wealth and “importance of particular families and individuals, “giving them an undue influence in a republic, “and that they prove in many instances the source “of great contention and injustice,” enacts, "that “from and after the ratification of the act, any “person seised or possessed of an estate in general or “special tail, whether by purchase or descent, shall “be held and deemed to be possessed of the same “in see simple, fully and absolutely, without any “condition or limitation whatsoever to him, his “heirs and assigns forever, and shall have full power and authority to sell and devise the same as he “shall think proper, and such estate shall descend “under the same rules as other estates in see simple;" and it further ratifies and makes valid all sales made by tenants in tail, in actual possession since the first day of January 1777. This act is undoubtedly entitled to the most liberal construction, since it is made in consequence of a constitutional injunction. Its title is to “do away entails." The words seised, or possessed, in the former part of the clause, should not be confined to mean actually possessed; for in the latter part of the clause the words actually possessed are made use of: the expression would not have thus varied if the meaning remained the same.—It is therefore conceived that the entail of the lands sued for was broken by the act of 1784.

The sons of Joseph Wells were entitled, on his death, to a see simple therein, and as they did not prosecute their claim within the period assigned by law, all deriving title under them are forever barred. A construction similar to this has been, it is said, put on this act by the Federal Circuit Court of this state in the case of Harrison and Gilmour.

Thus therefore the defendant insists.

1st. That Joseph Wells was seised in fee at the time of his conveyance to Stephen Lee.

2d. If he were seised in tail, that this conveyance worked a discontinuance which has taken away the right of entry, without which an ejectment cannot be supported.

3d. That seven years possession since the death of Joseph Wells had under the act of 1715, perfected and completed the title of Stephen Lee.

4th. That the estate tail was broken by the act 1784, and claim not having been made within the time prescribed in our act of limitations, the sons of Joseph Wells and all claiming under them are forever barred.

Should any one of these points be determined in favour of the defendant, the plaintiff cannot have a judgment. If all the grounds of defence taken should fail, it is submitted whether the plaintiff can recover but a ninth part of the lands sued for. Joseph Wells died since the act of 1784, leaving three sons—David, the eldest son, died since the act of 1795, leaving issue, beside the plaintiff, a son and a daughter. The act of 1784, regulating descents, directs that all the sons should inherit equally, and the act of 1795 places the daughters on the same sooting with the sons.

Haywood, for the plaintiff.

This case is not within the act of 1784; it is to be decided by the law prior to that act, and as if that act had never been made.

The act provides for two cases. One where tenant in tail is found in possession at or after the act; his estate tail is converted into a fee; if he is not in possession, but has a right to it only, that right is not impaired, nor his remedy to recover it abridged. As the object of the act was to do away perpetuities, it was not necessary to this end, that rights of entry of tenant in tail, should be destroyed, nor that the defeasible estate of a wrongful possessor should be rendered indefeasible, at the expence of tenant in tail out of possession. For the estate, when recovered and reduced into possession, instantly becomes a see by the operation of the act, and the perpetuity as completely done away as it could be by annulling rights of entry: and moreover, the invasion of the right of property is avoided; the words seised, or possessed, &c. were purposely inserted, to exclude the idea of intermeddling with rights of entry or of action.

The other case provided for is that of a solely tenant in tail after the first of January 1777, evincing a clear intent not to interfere with alienations made before that period and to leave them as they were under the regulation of the laws in being. The case before us falls under neither of those branches of the act and is in no wife affected by it.

What then was the law as it regards this case before and at the passing of the act of 1784? It was, that a conveyance by tenant in tail made by bargain and sale, release, covenant to stand seised or other conveyance not operating by way of seoffment, passed no more to the bargainee, than the bargainor could lawfully convey: a base fee determined by the entry of issue in tail and consequently by his ejectment. Litt. sec. 606, 607, 609, 610. 2 Ld. Ray. 778. 3 Burrow 1703. Lee's estate was of this kind, and was defeasible by entry or ejectment of the issue in tail, and is so at this time, unless the right of possession of the issue, has been destroyed by some of the means adverted to, in the objections raised against his recovery. These shall now be considered and be attempted to be removed.

The first objection is, that the estate of the surviving devisee, which came to him on the death of his brother, was not an estate tail, but an estate in fee and well conveyed to Lee. Answer: supposing this to be so, he had still an estate tail in his own moiety, and we are entitled to recover that, though the objection be valid; but it is not valid: the limitation, if I recollect it, is “if the survivor “die without heirs, then to the right heirs of devisor:" now it is a rule, that whenever an estate is limited to the right heirs of the devisor by will, and the quality of the estate is not altered by the devise, the right heirs take by descent, as well, that they may be liable to the specialty debts of the encestor, as to the feudal duties owing to the lord. Then the estate contained in this limitation came by descent, immediately on the death of the devisor, to one of these devisees; for it is not stated, and therefore cannot be assumed, that he had any other sons: on the death of the last son, it descended on some one, who was both the heir of the son and of the devisor: it was impossible therefore, that the survivor could die without heirs general, so long as there were heirs of the devisor, who necessarily were his heirs also to take; and consequently the dying without heirs, here spoken of, must have been intended heirs of the body and create an estate tail, Cowp. 234, 1 P. W. 23. Salk. 233, pl. 12. The defendant cannot say, the devisor might have had an elder son by another venter, who was the heir of the devisor, and not the heir of the surviving devisee: no such fact is found by the verdict, and we cannot travel out of it; nor was any such fact proved on the trial, were we allowed to travel out of it. In the case cited from Salk. & P. W. it was taken that A was the heir of the devisor, and the brother of the whole blood to B, it not being found otherwise; so here, there is no finding that the devisees were not of the whole blood, nor that there was any son of the devisor, who was his heir and not the heir of the devisees, in case of their deaths without children. Therefore, on the death of the survivor, the estate limited to the right heirs of the devisor, must have gone to the eldest son of the survivor; or had he died without children, to the uncle on the father’s side, being precisely the same persons who are heirs of the survivor, and also heirs of the devisor, and then, the limitation of the estate, to the survivor on the death of his brother, and for want of heirs of the survivor, over, is the limitation of an estate tail; Fearne, 4 ed. 350, 351.

Again, the intent of the devisor is plain that the survivor on the death of his brother, shall have an estate descendible to his heirs but at the same time such an estate, as leaves another estate for the heirs of the devisor; and this is the very description of an estate tail. There is no way to get over considering it as such, but by supposing the devisor had an elder son by another venter; but, for the reasons already given, no such supposition should be made. It it can legally be made, the cases from Salk. & P. W. are not law, for in these, there was as much room for such supposition, as here; there was no finding in these cases, that there was not an elder son of the half blood. The survivor, then, of these devisees, was seised of an estate tail in both moieties, with the reversion in fee to himself by descent.

Another objection is, that a seoffment in fee by tenant in tail works a discontinuance, and that the deed to Lee is a seoffment. The law, as stated, is not denied; but it is denied, that this deed is a seoffment. The deed agrees in every part of its description, with that of a bargain and sale, which is, “a contract in consideration of money, passing "an estate in lands, by deed indented and registered,” 1 Ba. ab. 273. The words alien, grant, enseoff, are as proper for a deed of bargain and sale, as the words bargain and sell; Sanders 345. 8 Rep. 93. b. 94. a. 3 Leonard, 16. pl. 39. Should the word “enseoff,” therefore, be found in this deed, no just inference can thence be drawn in favour of the objection: the same argument, would convert almost every deed into a seoffment, for it is very general and in almost all deeds. We should look well to the consequences of such an opinion, before it be adopted. What is a seoffment? The definition of it is, “a conveyance by "delivering possession upon or within view of the “land conveyed,” Sanders, 206; a deed forms no part of the conveyance, though it may accompany the seoffment, and is of use to evidence the quantity of estate conveyed; 2 Ba. ab. 483: still however, if the deed expresses an estate in fee, and the seoffor deliver seisin for life, the seoffee can hold but for life; Litt. sec. 359. Co. Litt. 222. b; for the estate passes by the livery and not by the deed. There was no livery; whatever estate passed, passed by the deed: it was not a conveyance by seoffment, for nothing can constitute a seoffment, but livery and seisin. It is argued however, that the act of 1715, cap. 38, sec. 5, allows of a seoffment without livery and seisin: if this be so, the act has changed the nature and description of a seoffment, and has made a deed to be a seoffment, which before it could not be. The words which are supposed to have worked this alteration are, “all deeds registered, shall pass estates in lands without livery of “seisin, attornment or other ceremony.” Does it follow that because livery and seisin, or seoffment, (for these terms are synonimous) are rendered unnecessary or unessential, to the passing of estates in lands, that, therefore deeds conveying estates, shall be deemed seoffments? Certainly no dispensing with livery and seisin, is dispensing with seoffment. If a man chuses to convey by seoffment, he may; but then, he must perform all the ceremonies, which are requisite to constitute a seoffment; otherwise, it will not be a conveyance by seoffment since the act, any more than before.

Admit however, that the nature of a seoffment is changed by the act from what it was, and that some ceremonies are now omitted, which were formerly essential; the consequences and the effects of the omitted ceremonies, will cease with them, causa cessante, cessat effectus. Then it follows, that the discontinuance, being the effect of livery and seisin, ceases with it. Wherefore is it, that a discontinuance is operated by the seoffment of tenant in tail? It is because tenant in tail, having the inheritance, and the possession of the inheritance, not a possession for life only, co-extensive with the quantum of interest in the estate, and transferring it by livery, not only passes the possession for his life, which he lawfully may transfer; but also, the possession of the inheritance, which belongs to the issue, and which he ought not to transfer; and so leave no right of possession, which can descend to the issue, but a right of property and of action so recover it; which is a discontinuance. Gilb. on tenures, 108, 109. It is the actual transfer of the possession, which produces this effect, and accordingly, if he passes the estate by deed, for instance, a bargain and sale or release, which latter is a conveyance of the common law, that passes no more than he lawfully may pass, namely, a possession for the site of the grantor, leaving a right of possession to descend to the issue, and works no discontinuance; Litt. sec. 598, 599, 600, 601.

If then livery and seisin, be the cause of the discontinuance, where tenant in tail conveys by seoffment, where he conveys by deed called a seoffment without livery of seisin, there will be no discontinuance, unless the argument goes further, and proves that the act meant to impart to this deed called a seoffment, all the properties of a true and proper seoffment. That cannot be maintained, for the act gives to the deed registered, the property of passing the estate in the land; not the actual possession of it. What is this estate, which the deed passes? no more, than the interest or estate, which the grantor lawfully may pass. It surely was not the intent of the act, to make the deed pass a tortious estate, like the seoffment, whereby tenant for life, or other inferior estates, may pass a fee, and displace remainders and reversions, and turn them to a right, unless entry be made in the life time of the alienee, who may, from, the secrecy of the conveyance, not be apprised immediately of the deed. Considering the deed as a seoffment to all purposes, will draw after it these consequences; and what then, is become of the estates of remaindermen and reversioners placed in this situation? There is no remedy in this country, but the ejectment: the benefit of this will be loft to them.

Another objection is, that a deed of bargain and sale with warranty, works a discontinuance; and if this is not a seoffment, it is a deed of bargain and sale with warranty: the law is admitted, but here is no warranty at all.

“A warranty is a covenant real, annexed to “lands or tenements, whereby a man and his heirs "are bound to warrant the same, and either upon "voucher, or by a judgment upon a writ of warrantia chartœ to render other lands to the value “of those that shall be evicted by a former title or “may be used by way of rebutter.” Co. Litt. 365, a.

In our case the covenant is not annexed to lands; for if the grantee be evicted and die, his executors must sue upon it. Bull. N. P. 158, 2 Levinz, 26, 62. An action of covenant is the proper remedy, not a warrantia chartœ: it is a covenant binding his executors and administrators, for they are expressly named in it; a warranty cannot affect executors and administrators, but the heirs of the warrantor only. When the executors or administrators shall be sued, the recovery will be in money, not in lands; for they have no lands of equal value to give. No one will deny, but that if the grantee be evicted, the executors of the grantor and his personal estate, are liable to retribute the the lessee: then it cannot be a warranty, but a covenant for warranty, or to warrant, like that stated in 1 Vezey, 516. 2 Bl. Com. 304. Had the expression been, “I covenant to warrant,” there could have been no doubt. “I covenant for my heirs, executors, &c. the lands, &c. do warrant,” amounts to the same thing; the warranty in both instances, is placed in the infinitive mood: turn it into latin, it is, convenio me warrantizare. If both the covenant and the warranty be placed in the indicative mood, some part must be rejected, to make sense of the rest: if we reject that part of the covenant, which is personal, “I covenant for myself, “my heirs, executors, &c. do warrant,” there will indeed, be a warranty, but not one that answers the purpose of the defendant; for the heirs of the warrantor are not named. Co. Litt. 383, b. 384, b. the warranty expired with the life of the warrantor, and never descended upon the heirs, so as to create a discontinuance.

If it be argued, that the words are to be taken most favourably for the grantee; the answer is, a personal covenant, binding both executors and heirs, both the real and personal estate, is most favourable for him; 2 Bl. C. 304, and no doubt, such was the intent of the parties. This was an estate tail, liable to be reclaimed; it was proper, that the grantee should have the highest possible security, and a resort, both to real and personal estate of the grantor; for what would have been his situation, if the grantor had no real estate, but personal enough at the time of eviction? The grantee, if this were a there warranty, could have no recompense at all.

But say, here is a warranty annexed to the lands, and binding on the heirs of the warrantor; what then is the result? On the death of the surviving brother, after 1784, it descends on his heirs, his three sons; on the death of the elder of those, after 1795, one third of the warranty descended on his three children, and the lessor of the plaintiff is liable to one third of that one third only, Co. Litt. 393: he can only be rebutted for one ninth part of the premises sued for: the other eight ninths he is entitled to recover. Warranty always descends to those who are the heirs of the warrantor, by the general law of the country; otherwise it would serve but little purpose, for the protection of estates; for then, instead of rebutting the claim of all the heirs of the warrantor, it would rebut the claim of one only; the others might recover, notwithstanding the warranty. For example, the father conveys, and warrants the lands of the grandfather, and dies, leaving ten sons or children; the grand father dies: the elder son, if the warranty descends upon him, only will be rebutted; the other nine may sue, and cannot be rebutted; but if it descends on all, then all are rebutted.

Another, and last objection, but much relied on, is the act of limitations, and the lapse of years in the time of the issue of the grantor, after the death of the grantor; which, it is argued, barred that issue, and on his death the issue now plaintiff.

It would be an unaccountable circumstance, if tenant in tail, or the issue in tail, were not allowed to bar his issue by any deed he could execute, nor by any release he could give, to the bargainor however solemnly executed; but could effect the same thing, by his laches.

The act of James is, word for word, the same with our act of limitations, except as to the additional words in ours, which will presently be commented on. Under that act, if the tenant in tail or issue in tail, be barred of his entry, that will not bar the next issue in tail, Com. Rep. 124; for the words of the act are “no person or persons "shall any time hereafter make any entry into &c. “but within twenty years next after his right or “title which shall first descend or accrue to the “same.” As the title of the issue first accrues on the death of his ancestor, then, and not before, does the time begin to attach upon him.

It is true, our act has an additional expression: “all possessions held without suing such claim as "aforesaid, shall be a perpetual bar against all and all “manner of persons,” therefore says the defendant, the issue in tail shall be barred, for he is directly within the general expression, “all and all “manner of persons.”

A little reflection will demonstrate the incorrectness of this idea. Nothing more can be meant by it, than that all and all manner of persons, shall be barred, who, having a right of entry, have not exerted it within the limited time; it were too unreasonable to say, that the party by his neglect, should bar any other estate than his own; or should give an indefeasible fee, against all persons entitled after him, as well as against himself. Let us suppose a case:—A is tenant for life, B the reversioner. A is ousted and the seven years lapse. B is as much within the expression, “all and all manner of persons” as the issue in tail is; yet no one will attempt to say, that B is barred by the laches of A the tenant for life. No; A's estate is barred then perpetually, and the estate of the possessor is rendered indefeasible to the extent of A’s estate that is barred, and no further: whatever estate is lost by the neglect of the owner to enter within time, the same estate is acquired by the possessor: for the right of possession of the true owner becoming extinct by the operation of the act, and there being no person who can bring forward a claim of possession to disturb the possessor, his title is secured thereby.

The possessor only acquires an indefeasible fee, when the estate of the owner neglecting to enter, is a fee: in the case put, the owner or tenant for life, is perpetually barred, and all and all manner of persons whatsoever, as to that estate which belonged to A, namely an estate for life; so in the case before us, the issue neglecting to enter was perpetually barred, and all and all manner of persons claiming his estate, whether by execution, sale, or other purchase; but as in the case put, the tenant for life cannot affect, by his laches, any other than his own estate, so neither can the issue in tail who neglected to enter, affect any other than his own estate. And the issue in tail and reversion may enter when his title accrues by the death of the preceding tenant.

The position would be monstrous that tenant for years, for life, in dower, by the curtesy, might vest an indefeasible fee in the possessor, by not entering within seven years, and bar those behind them for ever. A having no right, might convey to B, and give him a colour of title, B enter, and the particular tenant refuse to sue him, till the seven years were expired: and as all and all manner of persons were thereby perpetually barred and an indefeasible fee vested in B, the reversioner, remainderman, and heir of the estate held by curtesy, could never recover. Yet the meaning attempted to be put upon the words “all and all manner of “persons” extends as much to these persons as to the issue in tail” The title of any of them, does not accrue till after the death of the precedent temporary owner, and the case of the issue in tail is not distinguishable from any of them: it is impossible that the construction contended for can prevail.

After time taken for consideration, the following opinion was delivered in substance by,

Johnston, J.

I cannot refrain from expressing my satisfaction, that a cause involving in its decision, so many important principles of law, has been argued so fully and ably; and I will take this opportunity of declaring that, if the judgment I am about to pronounce should not be entirely satisfactory to the counsel on both sides, I will direct the case to be transmitted to the court of conference, in order that it may be settled by all the judges of the country.

I am of opinion that this case is not affected by the act of 1784—That act converted no estates tail into estates in fee, but such whereof there was a person “seised and possessed,” and confirmed only such alienations in fee as had been made by tenants in tail in possession since the year 1777. Joseph Wells aliened the land in 1760, and no one has ever been “seised in tail therein from that period to “this day.” I think this therefore a casus omissus; one for which the legislature has not made provision in their act of 1784—I am also of opinion that if the plaintiff is entitled to recover at all, he is entitled to recover the whole of the land contained in the declaration of ejectment; for that the act of 1784 and 1795 regulated the descent of fee simple estates alone, and meddled not with the descent of entails—On all the other points, my opinion is favourable to the defendant. I incline to the belief that Joseph Wells was actually seised in fee at the time of his conveyance to Stephen Lee—and that if he were seised in tail, a discontinuance was operated by the conveyance, which barred the right of entry of his issue. This conveyance I think should be regarded as a seoffment; but if it were viewed as a bargain and sale, there was a clear warranty annexed, which gave it the same effect as to the operation of a discontinuance. With respect to the statute of limitations, I entertain no doubt but that, as neither entry nor claim hath been made on Stephen Lee or his heirs, within seven years after the right to defeat his title had first descended, (that is within seven years after the death of Joseph Wells,) and as the person then entitled to make such entry or bring such suit did not come within any of the exceptions mentioned in the act, the lessor of the plaintiff could not disturb the possession of the defendant. The long possession of Lee and of those claiming under him is, in the words of the act, “a perpetual bar against all and all manner “persons whatever.”

Transmitted to the Court of Conference.