Wells v. Newbolt, 1 N.C. 375, 1 Cam. & Nor. 375 (1802)

June 1802 · North Carolina Court of Conference

1 N.C. 375, 1 Cam. & Nor. 375

Jason Wells vs. Levi Newbolt.

This was an action of ejectment in Wilmington Superior Court. At the trial in May Term, 1802, the Jury found a special verdict, in substance as follows, to wit:

" The Jury find that the land in question was granted to William Wells in the year 1735; who some years afterwards, by his last will and testament, devised the same 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 forever; to be divided, each of them to have one half of the wood land 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 of their heirs, then to my right heirs forever," and died in the year 1743. Henry died underage and without issue in 1749. Joseph who survived Henry, by deed of bargain and sale, bearing date the 3d day of February, 1761, for a valuable consideration, conveyed the land in question, to Stephen Lee and his heirs forever. The operative words in the deed are " give, grant, bargain, sell, alien, enfeoff, convey and confirm,” with a covenant or warranty in the words following, to wit: " 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, forever hereafter, to warrant and defend against the lawful claim or demand of all manner of persons whatever." Stephen Lee and those claiming under him have been in possession of the land ever since. Joseph Wells died in the year 1787, leaving issue David his eldest son, William his second son, and two daughters. David Wells died in 1798, leaving issue Jason the lessorof the Plaintiff, Joseph and Elizabeth. Upon these facts the Jury doubt, and pray the opinion of the Court.”

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.

1. 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 wood 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 vs. 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 forever,” cannot, under the authority of the rule laid down in Webb versus Herring, before referred to, and in the other cases reported in the book, 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 cannot 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.

2. 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 “secs 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 inconveniences 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 purchases of the lands they had fairly bought—and treasons became 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 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. Butler, in one of his Annotations on Coke Litt. 15 edit. Hargrave and Lutler's Co. 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 alienee, as he took his conveyance from a person seised of the see 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 disseissor 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 operate a discontinuance. A feoffment certainly may. Thus Litt. sec. 595, page of Coke 326, b. “ If tenant in tail of certain land, thereof enfeoff 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 defender”. The conveyance referred to in the special verdict, and made a part of it, must be considered either as a feoffment, or as a bargain and sale.—Why should it not be considered as a feoffment?

A feoffment is defined by Justice Blackstone, 3 Comm. 314, “the gift of any corporeal here-ditament to another.” The apt words whereby to make it, are " give, grant, enfeoff.” To complete and perfect the feoffment, the feoffor used to give the feoffee 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 conveyance, which we are now considering, that conveyance would undoubtedly have operated as a feoffment. It was an immediate gift of the inheritance. It has the technical and proper words “give, grant, enfeoff.” 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 attornment, or other ceremony whatsoever." The necesity, therefore, of livery of seisin to perfect a feoffments, is taken away by this act. The notoriety occasioned by a registration of the conveyance in the country where the land lieth, is adopted by the acts 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 as if livery of seisin had been made with it. It must then operate as a feoffment. 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, 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 privileges, &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 inserted, 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 favorably for the grantee, and most strongly against the grantor.

Perhaps it will be said 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 suppurt of entails, which are so strongly reprobated by our constitution and bill of rights, [see bill of rights, sec. 23, and 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 withheld from others. See act of 1777, cap. 2. sec. 61, page 310, and act of 1785, cap. 2, sec. 1, page 547,

3. 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 laid Lee.

Let it be admitted that this conveyance passed a title prima facie good, yet defeasible upon the death, Joseph; defeasible, if not by entry, by suit. If is 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 from any sales made either by creditor, 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 with out any suit in law, be, and are hereby ratified, confirmed and declared good and legal, to all intents and purpose 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 at 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 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 ly on such titles only as should thereafter be derived, it would have been equally early to declare such intentions in plain and precise words. Habing used the word indefinitely, it is conceived they had in view both description of cases.-But should such a cosntruction be put on this clause as Plaintiff will probably contend for, such a construction as will prevent its application to the present case, it is nevertheless firmly believed that the subsquent clauses of the act, the third and the fourth, 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 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 mentiones 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 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 called 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 correct, will appear pretty evidently from the comment of Lord Coke on the statute, 22 H. 1, and the note thereon. Co. Litt. 115 a. and note. Twenty years are also the 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 7 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 short time leave much land unpossessed, and titles so 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, his eldest son, lives till 1798; Stephen Lee, and those claiming under hi, being in actual possession of the premises during the whole period.

4. The defendant also urges that his right to the possession of the premises is completely established, if it should sail 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 fee simple, the plaintiff is undoubtedly barred by the act of limitation.

The clause of the act which is believed to have this effect, in the first 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 sources 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 puchase or descent, shall be held and deemed to be possessed of the same in fee simple, fully and absolutely, without any condition or limitation whatsoever to him, his heirs and assigns for ever, 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 order estates in fee 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 undoubtedly is 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 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 remanded 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 fee simple therein, and as they are 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 it said, put upon this act by the Federal Circuit Court of this State in the case of Harrison and Gilmour.

Thus therefore the defendants insists,

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

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

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

4. That the estate tail was broken by the act of 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 1714, leaving three fons—David, the eldest son, died since the act of 1795, leaving issue, besides 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 footing 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 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 fee 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 day 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 feoffment, 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. Raymond 778. 3 Burrow 1703. Lee's estate was of this kind, and was deseasible 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 ancestor, 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 a 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 confequently 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 an elder son by another venter, who was the heir of the devisor, and not the heir of the surviving devisee: No sueh 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, and 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 divisor, 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. If 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 seized of an estate tail in both moities, with the reversion in fee to himself by descent.

Another objection is, that a feoffment in fee by tenant in tail, works a discontinuance, and that the deed to Lee is a feoffment. The law, as stated, is not denied; but it is denied, that this deed is a feoffment. 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, enfeoff, 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 “ enfeoff,” 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 feoffment, 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 feoffment? 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 feoffment, 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 feoffee 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 feoffment, for nothing can constitute a feoffment but livery and seisin. It is argued, however, that the act of 1715, cap. 38, sec. 5, allows of a feoffment without livery and seisin; if this be so, the act has changed the nature and description of a feoffment, and has made a deed to be a feoffment, 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 feoffment, (for these terms are lynonimous) are rendered unnecessary or unessential to the passing of estates in lands, that therefore deeds conveying estates, shall be deemed feoffments? Certainly no dispensing with livery and seisin, is dispensing with feoffment. If a man chuses to convey by feoffment, he may; but then, he must perform all the ceremonies which are requisite to constitute a feoffment; otherwise, it will not be a conveyance by feoffment fince the act, any more than before.

Admit, however, that the nature of a feoffment 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 feoffment 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 to 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 life 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 feoffment, where he conveys by deed called a feoffment 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 feoffment, all the properties of a true and proper feoffment. 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 may lawfully pass. It surely was not the intent of the act, to make the deed pass a tortious estate, like the feoffment, 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 feoffment to all purposes, will draw after it these consequences; and what then is become of the estates of remainder-men and reversioners placed in this situation? There is no remedy in this country, but the ejectment; the benefit of this will be lost to them.

Another objection is, that a deed of bargain and sale with warranty, works a discontinuance; and if this is not a feoffment, 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 wan ant the fame, and either " upon voucher, or by a judgment upon a writ of " warrantia chartæ to render other lands to " the value of those that shall be evicted by a “ former title, or may be used by way of rebut “ ter.” Co. Litt. 365, a.

In our case the covenant is not annexed to lands; for if the grantee he evicted and die, his executors must sue upon it. Bul. N. P. 158, 2 Levinz, 26, 62. An action of covenant is the proper remedy, not a warrantia chartæ; 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 lessee; then it cannot be a warranty, but a covenant for warranty, or to warrant, like that stated in 1 Vesey, 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 favorable 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 mere 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 onethird 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 grandfather 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 tail. Com. Rep, 124; for the words of the act are “no per- “ son or persons shall at any time hereafter make “ any entry into, &c. but within twenty years “ next after his right or title which shall first des- “ cend 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 farther. 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 courtesy, 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 courtesy, 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.

Johnston, Judge.

I am of opinion that this case is not affected by the act of 1784. That act converted no estates tail into estates in see, but such whereof there was a person “ seised and possessed,” and confirmed only such alienations in see 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 “seized 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 see simple estates alone, and meddled not with she descent of entails. On all the other points my opinion is favorable to the defendant. I incline to the belief that Joseph Wells was actually seized 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 seossment; but if it were viewed as a bargain and sale, there was a clear warranty annexed, which gave it the lame 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 has 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 of persons whatever.”

Hall, Judge,

I think that Joseph Wells was seized of an estate tail and not in see simple, at the time he conveyed the premises in question to Stephen Lee. I also think that that conveyance did not work a discontinuance of the estate tail, because I consider it to be only a deed of bargain and sale, which of itself would not have that effect, and that there is not contained in it any such warranty as would qualify it to produce that effect. Were these the only points in the case, I should be of opinion that the plaintiff would be entitled to recover, as the reasons and authorities on which this opinion is founded, are fully contained in the arguments of the Plaintiff's counsel, I suppose it to be unnecessary here again to repeat them. But there is another point made in the case, founded on the act of limitations, which as I have thought somewhat more doubtful, I have endeavoured to consider more fully; and I think from the best consideration I have been able to give it, that that point should be decided in favour of the defendant. If each of the issue of tenant in tail as they may happen to become entitled to the estate tail, are to be considered as quite distinct persons, and possessing distinct rights, no way dependant one on the other, then this opinion must be erroneous, because-the act gives the right of entry or making claim within seven years next after their right or title shall accrue or descend, and it cannot be said that the right of entry accrues to any one, until the death of the person entitled to the estate tail next before him. This may be more fully illustrated by the case put by Mr. Haywood, of the tenant for life and the reversioner, which I think good law, for surely the laches of the tenant for life would not prejudice the right of the reversioner, because their rights are distinct. Mr. Butler, in note 281 upon Littleton, section 595, says, amongst other things, “ that though "the estate of the tenant in tail as to his right of "possession, or rather, as to his beneficial pro "perty in the lands, has only a duration for the "term of his life, yet in the eye of the law he “is considered as seized of an estate of inheri"tance.” In the case of Penyston versus Lyster, Cro. Eliz. 896, it was decided “that if tenant“ in tail conveys by bargain and sale, and the “ bargainee levies a fine with proclamations, and five years pass in the life of the bargainor, who dies, this fine shall not bar the issue in tail, but he shall have five years after the death of his father, because the father could not enter to avoid the fine, and his issue was the first to whom the right defended. But it is said in the same case, that if tenant in tail had been disseised, and the disseissor had levied a fine, and the tenant in tail had suffered the five years to pass, &c. that shall bind his issue, because the tenant in tail had a right at the time the fine is levied, and therefore the issue was not within the having. So we see that the issue are not barred in the first case, because the father could not enter against his bargain and sale; but in the latter case they are, because the right of entry was in the father, which he did not avail himself of. The same distinction is taken in Sheppard’s Touchstone, page 32 and 33, and the causes there cited, where it is said "if a tenant in tail discontinue in see, and the dicontinuee levieth a fine with proclamations, and five years do pass, and tenant in tail dieth, in this case his issue shall have five years after the descender to bring his formedon; but if tenant in tail discontinue rendering tent and die, and the issue accept the rent (which deth bar him for his time) and then the discontinuee levieth a fine and dieth; in this case the issue of the issue shall not be barred by the five years after the fine, but shall have five years after the death of the issue. Here it is strongly implied, that if the issue had not accepted the rent, but had suffered five years to pass, his issue would have been barred. To the same effect, see 1 Dy. 3, a, 3 Com. 358 and 9. 3 Coke 87, and many other books. It may therefore be said, if the tenant in in tail to whom the right first accrues, does not pursue his right in time, his issue shall be barred; but if lessee for life levy a fine or make a seossinent in lee, and the seossee doth levy a fine, he in reversion of remainder shall not be bound by the next five years after the fine levied, but shall have five years next after the death of tenant for life. Cro. Car. 156 7, Shep. Touchstone 32, and the cases there cited. 3 Com. 358 9. Thus we see that in this respect, the rights of the issue in tail cannot be likened to to those of a tenant for life and those of a remainderman, &c. But it may he said and truly, that these adjudications were not made on the statute 21 ft James I. chap. 16: ’Tis true that is not the case; but in the statute on which they were made, there is a saving to all persons, provided they affect their right within a certain time after it accrues; and I merely mention those cases to shew, that if the right first accrued to the tenant in tail, and he did not exercise it in proper time, the issue were barred. The time of limitations in a formedon by Sta. 21 ft Jac. is 20 years; within which space of time after his title accrues, the demandant must bring his actions, or else is forever barred. 3 Bl. 192. Now in case twenty years" should elapse during the life of the issue in tail, and that issue dies. I am not aware at present of any adjudged case that would entitle the issue of that issue to his action at any time within twenty years more. The same statutes which it is said our act of limitation so much resembles, gives the right of entry, provided that right is exercised within twenty years, and it appears to me that in case the right of entry is once lost, that, right can no more be revived in any succeeding issue, than can the right to bring a second formedon. With respect to the case of Hunt vs. Bowine in 1 Com. Rep. 124, relied on by plaintiff ’s counsel, it is to be observed that the right of entry then did not exist until within twenty years before it was made. There was a discontinuance, and the right of entry was thereby taken away; and the right of entry did not exist till the discontinuance ceased, which happened within twenty years before the entry made. If twenty years had elapsed during the life of the issue without entry, after the right of entry accrued and he had died, and the entry of his issue had been held good, then indeed it would have been an authority in point. Joseph Wells, in the present case, had no tight of entry, that first attached to David after his death, which happened in 1787; David died in 1798, without having exercised that right, more than seven years after the death of his father: I therefore think judgment should be for the defendant.

Macay Judge.—Let judgment be entered for the defendant.