#### Den, *ex dem.,*James Young *against*Benjamin Robinson and William Carpenter.

IN EJECTMENT.

Devise in 1755 to A. for life; then to B. and Ms heirs male; then to C. and her heirs male. B. and 0. die in A.’s life. C. has son D., who entered into possession in ’73 and sold to E. in fee. In virtue of the statute, *Pat.*54, E. holds the fee against the heirs of D. (a)

THIS action was brought for the recovery of a farm, in the county of Salem, mentioned in the will of *James Mason,*as the *Thompson*farm. The case came before the court, upon a special verdict, found at the *Salem*circuit, in *December,*1817, which stated the following facts :

1. That in the year 1755, James *Mason*died, seized, in fee, of the premises in question, having, by his last will and testament, bearing date the first day of *September,*1755, devised the said premises in the words following: “ *Imprimis,*I give and *demise*unto my well beloved wife, her choice of my riding horses, my negro man, and one half of my moveable estate, to the only proper use and behoof of her, her heirs and assigns, for ever; and also *794that plantation whereon *John Thompson*now dwells; and the house and lot, situate in the town of *Salem,*where *Ralph Walker*now dwells, to the only proper use and behoof of her, and her assigns, during her natural life. *Jtem^*I *give and *demise*unto my cousin, *Joseph Wood,*all that plantation whereon said *John Thompson*lives, after my said wife’s decease, to him and the heirs of his body, lawfully begotten, for ever ; *and for want of such heirs, the same to go to my cousin Sarah Young, to her, and the heirs of her body, lawfully begotten, for ever.”*

*2.*That the said will of *James Mason,*was duly proved, according to law, on the first day of *September,*1755.

3. That *Joseph Wood,*the devisee, in the will of the said *James Mason,*mentioned, died in the lifetime of the said *Mary Mason,*widow of the said *James Mason,*the testator, without issue.

4. The said *Ma,ry Mason,*after the death of the said *James Mason,*intermarried with *John Roberts.*

5. That *Sarah Young,*the devisee mentioned in the will of the said *James Mason,*also died, in the life-time of the said *Mary Mason,*afterwards *Mary Roberts.*

6. That the said *Sarah Young,*left issue; *William Young,*her eldest child ; *James Young,*her second child ; *Joseph Young,*her third child, and *Mary Young,*her fourth child.

7. That before, and at the time of the births of the said *William, James, Joseph,*and *Mary,*the said *Sarah Young,.*was the wife of *James Young.*

8. That the said *James Young,*the husband of the said *Sarah Young,*died in the year 1771.

9. That *William Young,*the eldest son of the said *Sarah Young,*survived *Mary Mason.*

10. That *Mary Mason,*died possessed of the premises ; and at her decease, *William Young*took possession of the premises in question, and occupied the same in the year 1772 ; and on the 20th *February,*1775, conveyed the same to *Jonathan Bilderback.*

11. The said *William Young*died, on the 12th day of *March,*1798, leaving lawful issue, to wit: *James Young,*his eldest son, and lessor of the plaintiff, and *William Young;*and that *James Young*was about twenty, or twenty-one years old, at the death of his father. .

*79512. That at the time of the death of *James Mason,*the premises in question were in the possession of *John Thompson,*the ^person mentioned in his will; who continued for some time a tenant to *Mary Mason.*

13. That the said premises in question, are 105 acres of land, in the township of *Mannington,*which, at the time of the service of the declaration in ejectment, in this case, were occupied by *Benjamin Robinson,*as tenant, under *William Carpenter,*the other defendant in this cause.

And the jurors further found, that the said *William Young,*the eldest son of said *Sarah,*by deed, bearing date 20th *February,*1773, conveyed the premises to one *Jonathan Bilderback;*that the said *Jonathan Bilderback,*died, seized of the premises, on the day of A. D. leaving issue, *Kidd Bilderback, Peter Bilderback, Edward Bilderback, Jonathan Bilderback,*his, sons, and heirs at law; and further, that *John Tuft,*esq., late high sheriff of *Salem,,*by deed, bearing date 28th *June,*1802, conveyed the right of the said *Kidd Bilderback,*and *Edward Bilderback,*to *Jonathan Bilderback;*and that *Peter Bilderback,*by deed, dated 20th March, 1804, cqnveyed his share of the premises, to said *Jonathan Bilderback;*and that the said *Jonathan,*by deed, the 19th *February,*1805, conveyed the said premises to *William Oriscome*junior; and that the said *William Griscome*junior, and wife, by deed, on the 4th *March,*1808, conveyed to *John Tuft;*and *John Juft,*19th, *March,*1808, conveyed to *William Carpenter,*one of the defendants; that the said *William Young,*father of the lessor of the plaintiff, died, on his own farm, in the township of *Downs,*at a place called *Nantuxet neck,*in the county of *Cumberland,*which contained the quantity of 130 or 140 acres, and which was conveyed to the said *William Young,*in fee-simple, by *William Paulin,*for the consideration of one thousand pounds.

*Jeffers,*for the plaintiff.

The premises were devised to *Mary Mason,*for life ; remainder to *Joseph Wood,*in tail ■ with remainder to *Sarah Young,*in tail.

*Joseph Wood*

died without issue, during the continuance of the particular estate. On his death,- the remainder became *vested*in *Sarah Young,*who died, also-, during the *796continuance of the life-estate of *Mary Mason;*neither of them having been in possession. On the death of *Mary Mason, William Young,*eldest son of *Sarah Young,*took possession of the premises, and continued in possession until 20th *February,*1773, when he conveyed to *Jonathan Bilderback,*under whom the defendants claim. The lessor is *William Young’s*eldest son.

Two points are raised for the consideration of the court. 1. Whether the title of the lessor is affected by our act, limiting estates tail, passed ,26th *August,*1784. And 2. Whether *William Young*was the *second*devisee, in tail, under that act.

1. The title of the plaintiff is not affected by the act. There is no question but *William Young*entered into possession as tenant in tail. He conveyed, on the 20th *February,*1773,^ more than eleven years *before*the passing of the act. He could have conveyed only his interest during life; for he had no greater estate to convey. The act which came after, could not, in any way, affect the estate, nor can it now affect the case. The words of the act are, *“*hath, agreeably to such devise or entail *passed*through one descent since the death of the testator, and is now in the second or more remote descent from the testator; all such land, or other real estate, shall be deemed, taken and adjudged to be, the proper estate in fee-simple of the *present possessor: Provided,*the testator had a fee” &c., and also provided, *the person in possession, holdeth the same in the line of descent, mentioned and directed, in and by such devise in tail.*

The act could only operate on tenants in tail, *then in possession;*and not upon such tenants as had conveyed their estates. If a purchaser of the estate of tenant in tail, was in possession of the entailed premises, at the time the act passed, he could not be benefited, in as much as he could not “ *hold in the line of descent, mentioned and directed in and by such devise in tail.”*

The act of 1784, limiting estates tail, was made in favour of the heirs, generally, of tenants in tail, and to unfetter such estates; but to apply it to an estate which the tenant had aliened ten or twelve years before its passage, would *797be to make it operate for the benefit of the purchaser, to the manifest injury of the heirs in tail. It would also contrary to the understanding of the parties, at the time the conveyance took place, for it must have been then understood, that an estate, during his life, was all *William Young,*could convey.

2. If it is considered, that the act affects the case, then *William Young*was the *first*possessor of the entailed estate, *secondly*mentioned in the line of entailment. *Joseph Wood*and * *Sarah Young,*who had vested remainders, died during the existence of the particular estate; and on the death of *Mary Mason, William Young,*the father of the lessor, entered into possession of the entailed estate, as the *first possessor 'imder the devise in tail.*

The words of the explanatory act “been possessed by the first devisee in tail” &c. “ and is now the property of the next devisee in tail” must be construed to mean the property of the *second possessor,*whether he is the third or fourth person named in the devise. The legislature intended that the *first possessor,*under the *devise in tail,*should have but a life-estate, and the *second possessor,*in the same *line of entailment,*should have a fee-simple. If we strike out of the original act, the words “passed through one descent since the death of the testator, and is now in the second or more remote descent from the testator” and in the place of these words insert the words of the explanatory act, the section would read as follows, “That all lands or other real estate which have heretofore been devised in tail, of any kind, and hath, agreeably to such devise or entail, been *possessed*by the first devisee *in tail,*and is now the property of the next devisee *in tail,*after the decease of the first devisee, in the line mentioned in the devise in tail, under' wdiich they may claim” all such land shall be taken and deemed “ to be the estate in fee-simple of the *present possessor.”*

Two persons must actually possess the entailed estate, according to the line of entailment mentioned in the will. The words “ have been possessed” mean an actual possession. And the words “is wow the property of the *next*devisee in tail” prove that an actual possession is to be had by two persons *under the devise in tail.*For example : if *798lands be devised to A., for life, remainder to B., in tail, for Want of issue of B., to C., and on failure of the issue of C. to D. If all the intermediate persons die without issue, during the existence of the life-estate but D., D. has a vested remainder in tail. And if on the death of A., D. enters, he is the *first*possessor under the entailment, according to the act, although he is the *fourth*person named in the devise, and the heirs of D. would- have a fee-simple ; and this is the case now before the court.

*L. H.*Stockton, in answTer.

It was his duty, and he hoped it would be in his power, in opposition to the argument delivered, *to shew, 1. That *Sarah*Young, taking a vested rem ainder in fee tail, it descended, on her death, to her eldest son, *William Young.*2. This vested remainder coming to *William,*by descent, was ■ converted into a fee-simple, by the statute, *Pat.*54, and vested in his alienee, to whom he conveyed, by deed, 20th *February,*1773. 3. That if defendant have not the fee, the lessor cannot recover on this record, as heir in fee tail.

1. The first proposition does not require argument, being neither doubted nor denied.

2. When *William*took, it was either as original devisee or by descent from his mother; as *purchaser,*or *heir.*He could not take as purchaser: the words of the will, “ heirs of her body, lawfully begotten, for ever,” are of technical signification ; words of limitation, not of purchase. 2 *Hen. & M.*266. 2 *Bl. C.*20. It is true, in some cases, particularly in the time of lord *Mansfield,*it has been held, that in very strong cases of plain intent, “heirs of the body,” may mean particular persons, in full life and known to the testator, who should take as original devisees; but they are exceptions from the general rule, in favour of plain intent. *2 Bur.*1100. And though lord *Holt*and Mr. *Hargrave*argue the rule to be inflexible, yet exceptions of *plain intent*may be admitted. But here is no such intent; no circumstance or word to shew, that the expression was used, as *descriptio personarum ;*or intended to carry the land to the children, or any one of them, as original devisee; but the contrary. It does not appear, that a single child of *Sarah Young*was born, or if born, *799known to testator. To make *William*the original devisee, leads to the monstrous absurdity, that one, not named, haps not known, should,by arbitrary assumption, be first devisee, to the exclusion of *Sarah,*w'ho is named as cousin, personally known and selected in positive words, as the object of the bounty, and devisee of the remainder; an absurdity conclusive, in a case like this. The manifest intent, if not repugnant to the rules of law, must regulate the construction. 1 *Wash.*102. 1 *Bur.*228 to 235. *Gilb. Dev.*63. 2 *Bur.*1112,1113. Now the plain intent of the testator, was, after the death of his wife, and of *Joseph Woods*without issue, that *Sarah Young,*and she alone, should be the first and principal object of his bounty. *William*was to take in right of his mother, and in virtue of his heirship to her. In fact, after the estate vested in her it was impossible that it could go to him, as original devisee. He *took not by purchase, but descent, and was, therefore, second in descent from testator, and his estate was converted into a fee, by the statute. But it is said, the words of the explanatory act exclude this case ; it does not, however, diminish the force of the argument. The word “ possessed ” clearly means, such existence of ownership, as is consistent with the subject matter spoken of in the context. 1 *Bl. Com.*59. Possession does not always mean the touch of the foot. Tt may be satisfied by the *vesting*of an estate. An estate is the interest in the land, and where that is a remainder, and vests, its proprietor is *possessed*of the estate, though the intervening particular estáte prevents the actual enjoyment. The possession of the particular tenant is, to all necessary legal purposes, the possession of the remainder man. 5 *Jac. L. D.*445. These explanatory words then attach to *Sarah Young,*(2 *Bl.*166) they cannot apply to *William.*He never took by devise; nor, if he did, was he first devisee. His mother was prior to him. And although he possessed, yet wanting the other constituents, of being devisee, and first devisee, he is not the person contemplated in the act; any more than a juror, would answer the law, *(Pat.*259) who had citizenship without residence, age, or freehold. The result is obvious. But admit that the words do not apply to *Sarah,*they cannot to *William,*and it is *800demonstrable that they do not to any one else: and, the explanatory act has no application to the case, but the decision must rest on the first act. The re-suit, then, is the same ; his estate is converted to a fee by the first act, because it had passed through one descent since testator's death. The better construction, however, is to apply the supplement to *Sarah Young,*because, then, the statute takes effect. 19 *Vin.*528, sec. 160. Indeed the result of thetwo acts is plain, and well expressed by Judge *Pennington.*(See his *Rep.*825.) *“*The plain meaning of the act is, th at where an entailment has been, or shall be, created, the entail shall not continue beyond the first descent. The word first in the concluding clause of the act, refers to the donee in tail, the original stock of the entailment.” This donee is *Sarah Young.*The entail shall not continue beyond her life. Her heir takes a fee. The lessor, claiming in tail, cannot recover.

But, if in strict construction, this conclusion be at all doubtful, it is freed from doubt on the principles applied to the construction of remedial statutes, which are liberal, for the purpose of ^'suppressing the mischief, and advancing the remedy. 4 *Bac.*650. 19 *Vin.*526. This act is remedial. Estates tail arose from the statute *de donis,*enacted A. D. 1285, during the reign of a bloody tyrant, *Edward*I.; through the influence of haughty barons; to subserve their aristocratical pride, by perpetuating their immense landed estates in their respective families ; and pressing down those whom they contemptuously styled villeins and vassals; and to support an abominable system of feudal slavery. 2 *Bl.*112. 2 *Hume*66. It is not surprising that these estates were considered abhorrent to the spirit and genius of our government, and that here, and in other states, acts should have been passed to destroy them; and avoid the expensive modes which legal subtilty had devised, to curtail them. Such acts require and deserve a most liberal construction, and the court will lean in favour of that argument which tendsto destroy, rather than that, which protracts the existence of such fettered estates, so obstructing to the free commerce and liberal ideas of modern times. *Pen.*823, is cited, as adverse to this argument. But itisnot so. *W. Hamilton,**801who is recognized as a son of the testator, on the face of the will, was correctly adjudged to be the first devisee, to take in tail male, both by express .words and unequivocal intent, and dying without male issue, the estate reverted to the heirs general. If he had left a son, that son would have taken a fee, as *William Young*did.

*William Young’s*

estate being converted into a fee, it is to be proved, that the same was vested in his alienee. The subject matter is the land; it is also a quality attached to the land; not a personal privilege, but follows the land in nature of an incumbrance. The second section declares, that the possessor shall have a fee simple, provided he was in the second or more remote descent, at the time of passing the act, and held in the line of entailment. Now, Bilderbackmay be said to have *then*held, in that line, as a necessary result of the unity and privity of right, between grantor and grantee, in a deed like the present, of ample warranty, and conveying all reversionary interests. Whatever may bo the strict construction of the words, on verbal criticism, it is evident, they were intended to convey the idea of unity and privity of title, between the possessor, whose estate was to be converted to a fee, and the original creator of the estate in tail; whether the possessor was the grantee, or himself *the heir in tail. If it had been intended to restrict the benefit to the family or blood of testator, and deny it to the alienee, purchasing for a valuable consideration, precise words pliraseologically expressive of that idea, would have been used; such as, provided the possessor shall be heir in tail of the blood, &c. This argument is rendered conclusive, by those words of the second section, which substantially conclude the whole legislation on the subject ; “ that no entail of any lands shall continue to entail the same, in any case whatever, longer than the life of the person, to whom the same hath been or shall be first given or devised, by such entail.” These words, subject to no uncertainty, extend to all lands, whether the possessor came in under the form of the original gift, of the blood of the entailing ancestor, or be an alienee of another family, coming in by deed. If then, the benefit be confined to the issue of the body, this clause is repug*802nant to the former part of the section ; if it he extended to a *bona fide*purchaser, both clauses are reconcilable to each other, and to reason and justice. The latter sense is to be preferred. 19 *Vin.*528, 527. But if it be insisted, that these clauses are irreconcilable, then the words which speak the last intent, shall prevail. 19 *Vin.*522. This last principle, however, is not insisted on, because all may be reconciled. The object of this last proviso was, to guard against interfering with the title of the creator of the estate in tail, by producing a statutory confirmation of the title of any stranger, who, after a second descent from the entailing ancestor, might have become possessed of the land, under a claim adverse to his. It was necessary to effect this object, and if restricted to it, is satisfied and usefully employed; but if perverted, to deny the benefits of the enacting clauses to the alienee, for valuable consideration, would be against justice, convenience, and the application of remedial statutes to the evils to be remedied. Such construction is condemned. *Carth.*136. *Litt. sec.*138. *Cowdries case,*5 *Rep.*Again : cases within the mischief are to be considered as if mentioned in express language. 19 *Vin.*514, 516. 1 *Ins.*24. 4 *Bac.*649.

The case from *Coxe*340, was essentially different from the present, and rested upon the construction of a harsh and highly penal treason act of *December*11, 1778. *Wils. New-Jersey laws,*67. The point in the case most nearly resembling this, was *necessarily decided, on the positive words of the 16th section of that act, page 360.

It is confidently believed, that the two first propositions are established, and are conclusive for the defendant. The third will be cursorily examined. A plaintiff must recover on the strength of his own title, which must be clear. 4 *Bur.*2487. Now, if-the statute did not operate on the estate of the alienee to enlarge it, it doubtless destroyed the entail, and the fee, by way of reversion, remained to *William Young,*descendible, on his death, in 1798, to his heirs at law, that is, *to all his children.*He had at least two sons, perhaps more. The lessor is not, therefore, entitled to *more*than half, as *tenant in common.*He cannot, therefore, recover upon the present count, *803which, is on a separate lease, for a separate and several estate.

Mr. *Ewing*

here read, from 1 *Bur.*326, and *Sider*229, to prove, that there may be a declaration for an entire estate ; evidence of title to moiety or less ; and recovery according to the evidence.

Mr. *Stockton.*

These cases shew only, that where plaintiff counts for a certain part, as one-half, and proves title to another, say one-third, lie may recover according to his title: he may claim more and recover less land ; but they do not shew, that he may claim as *sole owner,*and recover an undivided moiety, as tenant in common. This would be against the rule, that the *allegata*and *probata*must agree.

Other questions of weight are left, for discussion, to the associate counsel. It is only proper to add, that if the question be abstruse, and there be doubt in the court, it ought to operate in favour of defendant. The burden of proof is on the plaintiff. That proof ought to bo most clear, after more than forty years continual possession of defendant, and those under whom they claim ; after almost twenty years adverse possession, since plaintiff’s pretended right of recovery arose on the death of his father, during which time, he repeatedly saw the land sold to different alienees, and greatly improved ; and especially after his father, in 1773, received, for it, a valuable consideration, with which, it is highly probable, he bought other land, on which plaintiff was nurtured, and which he now enjoys. These facts are not so disclosed, as to form a direct specific bar, hut are pro*per to be considered as auxiliary, in determining a supposed right, resting on doubtful grounds, if the court so regard it.

*R. Stockton,*

on the same side. The material facts are, that in 1755, *James Mason*devised to *Mary Mason,*for life; and annexed a vested remainder in tail, in *Joseph IVood;*and a second vested remainder, in tail, in *Sarah Young. Joseph Wood*died, without issue, during the particular estate. *S. Young*also died, leaving *William Young,**804son and heir in tail. He entered on the death of *Mary*and in 1773, conveyed, with warranty, to *Underbade.*His son *James*claims, by descent, as heir in tail. Defendant claims under *Underbade,*the alienee of lessor’s father.

Two propositions are to be established. 1. If *William Young*had remained, his estate would have been converted into a fee, by the act of 1784. 2.- His alienee, took the enlargement of the estate created by that act.

1. *Sarah Young*took a vested remainder;' she was the first tenant, in tail. *William*took, by descent, from her; he is the second in descent, spoken of in the act. *Pat.*54. The legislature intended the land to be unalienable, during the life of one tenant in tail, but to give a fee to the second. But the words used were calculated to prevent this effect, because the first tenant does not claim by descent. This produced the supplementary act. *Pat.*78. The use of the word *descent,*was the error in the first act; of the word *devise,*in the second. But the object of both is equally plain, to give the fee to the second person; to *William.*It is, however, objected that the first devisee must be in *actual*possession; that *Sarah Young*was not, . and therefore could not, be the person meant by first devisee; but that *William*must be. But, 1. *Sarah Young*answers the description of devisee ; *William*does not; he is no devisee; he takes by descent. The distinction attempted between vested remainder, and remainder in possession, is not correct. The act speaks of the estate tail passing to the second descent. The adverse argument rests, altogether, on the word *possessed ;*but possessor is here used as synonymous with owner. It is in both acts, and may be supplied by that word in both. The intent of the law must prevail, and that was to unfetter the estate tail. See especially the concluding clause of section two, of first act. It cannot last longer *than the first life. But on plaintiff’s construction, it must last three lives, before the change of the' estate can take place. Such a construction must be corrupt.

2. *William's*estate became a fee, it shall be a fee in his alienee. The enlargement follows the land, not the person. He parted with his right in 1773, and covenanted that he had a fee. The covenant follows the lands. 7 *805*Cra.*164. The case in *Coxe*340, was a forfeiture; there the construction is strict, here it is to be liberal. deed, by tenant in tail, carries more than the estate for life, of the grantor ; it carries a fee against all the world but the issue, and against them until they enter. The fee is defeasible by the heirs, but if they do not enter, the deed enures to convey a fee-simple. Here the law enlarged the estate, and the heirs could not enter. 3 *Bur.*1703. 1 *Atk.*1. *Com. Rep.*19. It follows that the estate may be, and was, enlarged, in the hands of the alienee. There must be an entry *in fad,*by the issue in tail, and this appearing upon the record. It is absolutely necessary, to complete the title of the plaintiff, or to defeat that of the defendant. Confession is not enough, where entry is part of the title. *Run.*197. *Doug. 467.*2 *Bla.*354-5-6. So there must be actual ouster before tenant in common can maintain ejectment. 7 *Cra.*463, 471.

But still further. What gave heirs a right to enter ? The statute *de donis.*That statute is repealed, and shall the consequences remain ? Before that statute, these estates wrere fees absolute, after the birth of an heir; and such ought to be the doctrine now: we ought to be remitted to the old law. This point was broached in *Den*v. *Fogg,*but it did not properly arise, and could not be decided.

But again. Defendant claims the benefit of the warranty under which he holds from *William Young,*and which will prevent the lessor, who is his heir, from recovering. At common law, the heir could not recover against a warranty. *Co. Lit.*sec. 697, p. 364-5. The statute of *Gloucester*altered it, as to tenant by the curtesy, unless assets descended to the heir. This is the origin of the distinction between warranty with and without assets. The principle of this statute was applied, by equitable considerations, to the statute cfe *donis,*so that under it, warranty without assets did not bind the issue; but with assets it did bind the *issue;*for then if he recover the estate, he must fulfil the warranty. 2 *Bl.** *Com.*301. 1 *Cru.*53. *Gilb. Ten.*132. *Harg. Coke*373. In this case assets descended. *William Young*died intestate, on his own farm. The verdict does not so say, but it is probable, *806from.its situation and acres, that it was of equal value the premises. And no unfavourable presumption arises from the value not being found, for if the verdict is, in this respect, defective, the court will send it back to be amended. The conclusion is, that *Mary Mason*took estate for life ; *Sarah*Young, a remainder in tail. It descended to *William Young,*in whom it would have become a fee, had he held it. It was enlarged by the statute, in the hands and for the benefit of his alienee. And even if it was not, his heirs are barred by the warranty; and the lessor cannot therefore recover.

*Ewing,*in reply.

The will gives, 1. A life estate to the widow of testator. 2. A vested remainder, in tail, to *Joseph Wood.*3. A remainder in tail to *Sarah Young.*After *Joseph Wood’s*death, *Sarah Young*had a vested remainder in fee tail. At her death, the estate in remainder descended to *William Young;*who, after the widow died, was entitled to the possession. He entered into possession, and conveyed, by deed, to *Bilderback.*He died, and *James,*the lessor, his eldest son, became tenant in tail. This1 is a fair view of the case, on common law principles, and by them, it is perfectly clear, and is not even contradicted, that *James*is entitled to recover. It will be perceived, that on many points, the parties do not differ. Their dispute arises upon the construction of the acts of the legislature. But before they are examined, it is proper to answer one or two suggestions which have been made. It is urged, that justice and feeling plead for the defendant,'and should prevail if there be doubt. The argument is unbecomingly addressed to a judge, whose business is to propound the law, and who knows, that he effectuates justice when he supports the law. But why is justice in his favour? He purchased a defective title, with a full knowledge of its infirmities; they are spread upon his deed; and for upwards of nineteen years he has enjoyed a farm to which he had no title. Again: it is said, that , the attempt of the plaintiff tends to foster and continue estates tail, which are, in themselves, odious, and were introduced, under a remorseless tyrant, to pamper his libidinous nobles. But zeal ought not to misguide us; *807for though estates tail, Unrestricted, are odious, yet limited, they are useful and to be respected. And although *Edward’s*conduct towards *Wallace*and the *Bruce*are a blot on his character yet was he the *Justinian*of *Eng* land,*(4 *Bl.*424); one of her greatest monarchs; and the law owes more perhaps, to him, than to any other. It seems, also, to be doubted, whether such estates really exist here. But the proper answer is; this and other laws recognize them.

As to the construction of the law. Two questions will resolve our difficulties. 1. On what real estate does this act operate? 2. In whose favour ? 1. On what estate? The words of the explanatory act are plain. On real estate which *has been possessed,*by the first devisee in tail, and is *now*the property of the next devisee in tail. It must, *at the time of passing the act,*have been *possessed*by one devisee, and be *then*the property of another. If this land do not come within this description, the act cannot operate upon it. It does not come within the description. Prior to passing this act, it had not been *possessed*by one devisee and become the property of another. *William Young*was the first person actually in possession, as devisee, in tail. *Sarah Young*was the first devisee, in- that line, but had not an estate in possession, but in remainder, which is diametrically opposed to it. It is, however, contended that she had a *legal*possession. The possession of the particular tenant is, for some purposes, the possession of the remainder man; but the legislature, here, obviously contemplate ail actual possession. The words “ been possessed” &c. are legal and appropriate to it; and are used in opposition to mere ownership or property, in this very clause. The court in *Den*v. *Hamilton, (Pen.*885) adopt this idea. First devisee, is not absolutely first owner; but he, who unites ownership and possession; one alone will not do; he must have both. But it is further said, that if possessor means what is now contended for, it will operate in favour of a wrong doer. Not so : he must hold in tail. But the land must *also*be the property of the *next devisee,*in tail, at the passing of the act, or it does not operate upon it. This land, was not so. *808In 1773 *William*conveyed it away. In 1786 it did not -belong to him.

2nd question. In whose favour will this act operate? Here, .too, the language is plain. It was passed for the benefit of the tenant in tail, not the alienee. 1. The proviso is, that the person holds in the line of descent: the enlargement, then, was not merely an*nexed to the land, and to follow it, but to the person. 2. The land must be the property of the next devisee in tail. 3. The latter clause of the second section prescribes, that'it shall vest in the *person*to whom the same *may descend.*But it is argued that the alienee is within the equity of the statute. We do not construe statutes by equity; and if we did, he is.not within it. The legislature never intended to turn to a fee, the estate of one who had acquired the interest of the tenant in tail. Such has been the construction of the court. Again it is said, and cases are cited to prove, that the tenant in tail, having conveyed, by bargain and sale, granted a base fee ; and any thing which afterwards may pass the fee, will establish the estate of the grantee. This is begging the question ; taking for granted what the defendant is bound to prove, viz., that the act does operate to create an estate in fee; which it never does, except where the land is the property of the tenant in tail. The last clause of the third section does not impugn this doctrine. It relates to subsequent, not prior, cases; and the person to whom first given, is to be understood, in a qualified sense, as devisee in actual possession. *Den*v. *Hamilton.*The result is, that the statute does not apply to the premises. It did not change the nature. of the estate. But if it did, the lessor is unaffected by it; he must recover.'

But it is said, there ought to have been an actual entry. It is so in no case in *England,*except to avoid a fine. It is never necessary for heir in fail to enter, if ancestor has granted. In *New-Jersey,*no such doctrine ever existed. Bringing the ejectment is sufficient, wherever the plaintiff has a right of entry.

But again, the statute *de donis,*is said to be repealed. This idea was almost scouted in *Den*v. *Fogg.*But what if it were repealed. It was the law when the plaintiff’s *809estate was created. It was in force in 1786, and until our general repealing statute; and the estates which out of it, are in force and recognized. Besides, if we go back to the conditional fee at common law, *William Young*had not an absolute fee in 1778. Such an estate would have given him power to alien, after issue; but no absolute estate, until conveyance and reconveyance. And he had no heir, when he conveyed. *James Young*was born in 1778.

The question of the effect of a warranty, contained in the deed of lessor’s ancestor, cannot be raised on this special verdict; and, therefore, how far the doctrine of defendant’s counsel, in this re*gard, may be correct, need not here be examined ; for it is conceded that the heir in tail is not bound by the warranty of the ancestor, unless assets have descended. This special verdict does not find that assets descended. No inference can be drawn, by the court, from circumstances stated; however strong they may be. The court can only proceed on facts expressly found. 5 *Bac.*285. 12 *Mod.*628.

(a)

 See *Den, Hugg vs. Hugg, ante 427. Wright vs. Scott, 4 Wash. C. C. 16. Den, Johnson vs. Morris, 2 Hal. 12. Den, Doremus vs. Zabriskie, 3 Gr. 409. Den, Spachius vs. Spachius, 1 Har. 172. Den, James vs. Dubois, 1 Har. 285. Den, Richman vs. Baldwin, 1 Zab. 400. Moore vs. Rake, 2 Dutch. 574. Gardner v*s. *Sharp, 4 Wash. C. C. 610.*

Kirkpatrick C. J.

This is a special verdict in ejectment, taken at the *Salem*circuit, in *December,*1817.

It finds, in substance, that *James Mason,*on the 25tli of *March,*1755, devised the premises in question, to his wife, *Mary Mason, to the only proper use of her and her assigns, during here natural life; and after her decease, to his cousin Joseph Wood, and the heirs of his body, lawfully begotten, for ever ; and for want of such heirs, to his cousin Sarah Young, and the heirs of her body, lawfully begotten, for ever.*That after the death of the said testator, the said *Mary Mason*entered into the said premises, and was thereof possessed, until the time of her death, which was some time in the year 1772. That the said *Joseph Wood,*after the death of the said testator, and during the life-time of the said *Mary Mason,*died, without issue; and that the said *Sarah Young,*after the death of the said *Joseph Wood,*but also during the life-time of the said *Mary Mason,*died, leaving three sons and one daughter, of whom *William,*was the eldest. That upon the death of the said *Mary Mason-,*the said *William*entered into the premises, and was thereof *810possessed, until the 20th of *February,*1773, when he sold conveyed the same, in fee, to one *Jonathan Bilderbaek,*and that he afterwards died, that is to say, on the 12th *March,*1798, seized of a certain real estate in the county of *Cumberland,*of 130 acres of land ; and leaving two sons, *James*and *William,*of whom *James*was the elder, and is the lessor of the plaintiff. It further finds the deed of the 20th *February,*1773, from *William Young*to *Jonathan Bilderbaek, in hose verba;*and then traces the title therefrom, down to the present defendants.

It is admitted, on all hands, that *Mary Mason*took an estate for life only, in the premises, by virtue of this devise ; that *Joseph Wood*took a vested remainder, in fee tail general, expectant upon the death of the said *Mary Mason;*and that *Sarah * Young,*took a like remainder, expectant, both, upon the death of the said *Mary Mason,*and upon the failure of heirs of the body of the said *Joseph Wood,*with reversion to the right heirs of the said testator. It is of course admitted, that upon the death of *Joseph Wood,*without issue, in the life-time of *Mary Mason, Sarah Young*became the next in remainder; and that upon her death, the said remainder descended to her son, the said *William Young,*as heir in tail, *secundum formam doni.*

If the plaintiff’s right,, then, rested here, there could be no doubt; for if tenant in tail alien in fee, though the alienee may lawfully enter, and hold during the life of the tenant in tail; yet, if he hold over after his death, against the issue in tail, the estate of such alienee, so holden over, may, at any time, be defeated by such issue.

The defendants, however, have raised up a defence, and have placed it upon four distinct grounds. The three first of these, in the order in which I shall take them, I shall mention in a cursory manner only, making án observation or two upon each, and then proceed to the last, which lies at the foundation of the plaintiff’s right.

1. It is said that if tenant in tail, alien in fee, the estate of the alienee can be defeated only by the entry of the ' issue in tail; that therefore an actual entry must be made, to complete his title, and so proved to have been done, at the trial, to enable him to sustain an action of *811ejectment; and that the confession of lease, entry and ouster, will not supply the place of such proof; and entry is not here found, by this verdict.

When the essence of conveyances consisted in the actual livery of the seizin of the land, in the presence of the neighbourhood, or of special witnesses, and the deed of feofment was considered but as a mere memorandunq to keep that transaction in memory, it was holden in the wisdom of our ancient law, that if one wrould come in upon the feoffee, upon condition broken, or upon the abator, on the death of the ancestor, or in other cases, where the right arose by operation of law, he must come in by public entry, in the presence of witnesses also; that the defeasance of the estate, must be by an act of as great notoriety, as the creation of it had been. But when, afterwards, for the greater convenience, conveyances to uses crept in, and took the place of feoffments, when the legal estate remained in the bargainor, and *the use only passed to the bargainee, it was impossible, either that this publiclivery should be made, or that it should be defeated by a public entry, for a mere use was insusceptible of either the one or the other. And though, afterwards, the statute of uses annexed the possession to the use, yet still the use was the principal, and the possession the accident. The creation of the use was the creation of the estate; and the statute, by a sort of legal magic, transferred the possession without any public act *in pads.*Hence, public entries to defeat estates, ceased with public liveries to create them. An entry, to defeat an estate now, would be just as extraordinary, as a livery of seizin, to create one. Every man who has *right of entry,*makes his lease to try his title, without any such formality, *(a)***The confession of lease, entry, and ouster, therefore, by the defendant, in the common rule, is, in all cases sufficient in actions of ejectment, without proof of any actual entry, to defeat a precedent estate. This is sq in *England,*except in the case of a fine only, where the actual entry is expressly required by the statute; but here, fines are abolished, as a mode of conveyance. So far, therefore, as *812I can now perceive, there is no exception to the rule. I not now speak of entries, to avoid the statutes of limitation. That is another subject.

2. It is said, in the second place, that the statute *de donis conditionalibus,*having been declared, by legislative act, to be no longer in force in this state, the plaintiff cannot come in and make title under it.

*William Loung,*the father of the plaintiff, who is admitted to have been seized in tail, died on the 12th *March,*1798; and the act of the legislature, declaring the statute *de donis*to be no longer in force, was passed on the 13th *June,*1799. The estate, therefore, if it passed at all, to the plaintiff, passed before the date of that act; and certainly it cannot be said, that the repealing of an act, or the rendering it, for the future, inoperative, will destroy an estate already vested under its authority, (a)

3. It is said, in the third place, that the deed of conveyance from *William Young*to *Jonathan Bilderback,*contains a covenant of warranty, binding himself and his heirs, to warrant and defend the said land, against himself, the said *William Young,*and all claiming under him; that the plaintiff is the heir of the said *William Young,*and is therefore barred, by the said cove*nant; and especially so as it is found by the verdict, that the said *William*died seized of certain other lands of an estate de-' scendible.

Warranties which descend upon the heir, and which may be taken advantage of by writ of *warrantia chartss,*or by *voucher*or *rebutter,*we are told, by *Littleton, may be annexed to estates of freehold, or to estates of inheritance, which pass by livery, and also to incorporeal hereditaments which lie in grant; but that they cannot be annexed to mere chattels, whether they be real or personal.*And much less can they be annexed to interests which are altogether of an equitable nature. Warranties, therefore, upon the sale of such chattels, or upon the passing of such equitable interests, must be taken advantage of by action of covenant, and *813not otherwise. Can a warranty, then, contained in a deed of bargain and sale, which conveys the use only (for statute annexes the possession) be considered as a warranty annexed to, and descending with, the land, in such way as that the assigns of the bargainee, can take advantage of it by way of *rebutter ?*and particularly in an action of ejectment? Or are they not rather to be considered merely as personal covenants, and to be taken advantage of by action of covenant only? But without saying any thing upon this subject, it is enough to observe, at present, (for it was desired by the counsel to speak to it again) that a warranty by tenant in tail, without assets descending, does not bind the heir, *(a)***And here, though *William Young*is found to have died seized of certain real estate, yet it is not found that such real estate is of the value of the lands entailed, or that they descended to the plaintiff. Upon a mere presumption, then, and a presumption too, which has so little to support it, we cannot saj7 the plaintiff is barred. And especially so, as the covenant will still be open against him, in the hands of him who has the-lawful right.

4. But, in the fourth place, the principal ground of defence is still to be considered. It is said there are certain statutory provisions, respecting estates tail, which govern this case, and take it out of the rules of the ancient law.

There was an act passed on the 26th of *August,*1784, which has for its object, among other things, the limitation of estates tail. The material words of this act, are these : “ *Be it enacted,*That all lands heretofore devised in tail, which have passed *through one descent, since the death of the testator, and are now in the second or more remote descent, from the testator, shall be deemed to be the proper estate, in fee-simple, of the present possessor, provided he holdeth the same in the line of descent mentioned in such devise.”

*“*That all devises of land, heretofore made in tail, which have not already passed through one.descent, and also all devises ’ which shall hereafter be made in tail, shall be deemed to entitle the person, to whom the same may de*814scend, to all the estate therein, which the testator had or cotfld deviseand

. “That D0 entailment of lands shall continue to entail same, in any case whatever, longer than the life of the person to whom the same hath been, or shall be, first devised, by such entailment.”

There was another act passed on the 23d of *March,*1786, to explain this act, which declares, that the words, “ Passed through one descent since the death of the testator, and are now in the second or more remote descent from the testator,” in the nrst act, shall be understood to mean “ Been possessed by the first devisee in tail; and are now the property of the next devisee in tail, in the line mentioned in the devise under which they claim,” and that the words, “The line of descent,” shall be understood to mean, “The line of entailment.” This explanation touches the first clause of the act, .only; the second and third clauses of it, as above recited, remain, as at first wholly untouched by this explanation.

There is, certainty, no inconsiderable degree of confusion in the phraseology used in this explanatory act. Perhaps, however, b}r a little consideration, we may be able to give it a construction which will carry into effect the intention of the legislature.

The first act is entitled, “ An act to limit estates tail.” The evil complained of, in the preamble, is, that “ devises are sometimes made in tail without limitation of time, whereby the heirs are put to great expense, in suing out recoveries, in order to dock such entails.” This is the evil it proposes to remedy. It does not profess to limit the entailment in the hands of the immediate devisee, but in the hands of the heir only. There might be sufficient reasons, why the estate should be limited to the . hands of the devisee, with whom the testator was acquainted and whose discretion and prudence he did not think proper to trust; but, when it had passed into the hands of the heir, whom he could *not, certainty, know, and whose prudence he could, therefore, have no' reason to suspect, it was thought the genius of our government and the public good, required that it should be unfettered and subjected to alienation, like other estates.

*815This seems to have been the view of the legislature, and to have been pretty clearly expressed in the first The only doubt that arose, or could arise, upon that act, and the only doubt pretended to he explained, was upon the words “ passed through one descent since the death of the testator, and is now in the second or more remote descent from the testator.” And the doubt was, whether, upon these words, if an estate tail had been devised to A., and upon his death had descended to B., it had then *passed through one descent, and was in the second or more-remote descent;*or whether B.’s life also must have been terminated, and the estate must have descended to his son C. in order to put it in the second descent. And, indeed, this mode of expression was certainly a very doubtful one, and one that required explanation. In a strict sense, passing through the hands of the immediate devisee could not be called passing through a descent, and descending from the devisee into the hands of the heir, could not put it in the second descent, for there had then been but one descent cast. To explain this doubt, and to declare explicitly, that when the lands had passed by descent from the devisee to the heir, the limitation should cease, was the only design of the explanatory act. It does not profess to change the object of the first act or to introduce a new principle, not contemplated by it, but merelj'- to explain the meaning of it; to declare the intention of the legislature in the words they had used. In order to accomplish this design, and at the same time to preserve the consistency of the act with itself, and with that which it is intended to explain, we must take some latitude in the construction of the words of it. We must understand the words, *first devisee in tail,*not absolutely, but relatively only ; not as the first devisee in tail, named in the will, but as the *propositus*or stock from which the issue in tail is to proceed; so that if there be a devise to A., in tail, with remainder to B., in tail, both A. and B. are to be considered as first devisees, in relation to their respective issues, they being distinct stocks from which distinct issues, and distinct lines of entailment are to proceed. So, too, we are to understand the words *next devisee,*not in a strict and technical sense, but in the sense *816*in which the word *devisee*is sometimes used in common discourse; not as one named in the will, and taking by devise, strictly speaking, but as one taking as heir, according to the special limitation contained in the will upon the death of such first devisee.

This construction is supported by the consideration, that if we take the words *first*and *next*devisee, in their appropriate and technical sense, meaning by *first,*the person to whom the estate is first given by the will; and by *next,*the person to whom the remainder is given, in tail, the first clause of the act which operates upon anterior devises, would not unfetter the estate in the hands of the heir, at all, but only in the hands of the remainder man, which would be in direct contrariety to the manifest intention of the legislature; the explanation of the act would nullify the act itself, which can never be admitted. This construction, too, makes the first clause of the act speak the same language respecting anterior devises which the next clause ■ speaks respecting subsequent devises. The object of both the one and the other is to say, that in the hands of the immediate, devisee the entailment shall continue, but in the hands of the heir it shall cease.

This, too, was the construction put upon the words *first devisee,*in the case of *Den*v. *Fogg,*in *September*term, 1811. In that case, there was a devise made after the passing the act, to A. in tail general, with remainder to B., in tail male, and it was held that B., coming in as a remainder man, should not take the fee, as *next devisee,*but that he should be considered, himself, as a *first devisee,*as *the person to whom the estate had first been devised,*in relation to the line of entailment proceeding from himself; and, in that case, B., having had no male issue, though he had issue female, seven daughters, yet the estate was adjudged to revert to the right heirs of the donor. And the judgment rendered in that case, as I have been informed, was afterwards affirmed in the court of errors.

If this be so then, in the case before us, both *Joseph Wood*and *Sarah Young*were *first devisees*in tail, in relation to their respective issues; and *William Young,*the son of *Sarah,*who took as heir in tail upon the death of his mother, was *the next devisee in tail.*And if *William■**817*Young*had continued to hold the iands until the passing of iho act, If they had then been *his property, next devisee,*the estate would have been converted into *a fee-simple, in his hands ; but having, before that time, sold and conveyed them to *Bilderback,*so that they were not then his property, as *next devisee,*and of course not within the words of the act, they could not be so converted ; and *Bilderback*having no pretence to be a devisee, or to hold *in the line of entailment mentioned in the devise,*this first clause of the act could have no operation at all upon the estate in his hands. I say it could have no operation at all, unless, indeed, it should be said that *Bilderback,*being the alienee, and standing in the place of the *next devisee*described in the act, (that is of *William Young)*he should take all the benefit under the act that *the next devisee*himself would have taken. But as this would be a forced construction, so it would put an end to the controversy, for then *Bilderback*would have the fee under this first clause.

The case, therefore, as it then existed, was not, according to my view of it, in any way affected by this first clause of the act; the lands were not in the situation described in that clause; the case was not one upon which that clause was intended to operate.

In opposition to this construction, however, it is said that these lands had never been possessed by *Sarah Young,*and that, therefore, she could not be *the first devisee*intended by this explanatory act; but that they had been possessed by *William Young,*her son, who came in as heir, upon her death, under the limitations of the will, and that, therefore, he must be considered as *the first devisee,*in this case; and that upon his death, which was after the passing of the act, the lands descended to his son, *Jam.es Young,*the lessor of the plaintiff, in fee-simple.

In answer to this it may be said, in the first place, that the possession of the tenant of the particular estate is, in one sense, the possession of the remainder man ; that *Mary Mason’s*possession was *Sarah Young’s*possession; that when this explanatory act speaks of the lands being *possessed by the first devisee,*it can, rationally, mean nothing else than such a possession as would be sufficient to pass *818the estate by descent and to save the inheritance, for, in other view, whether the first devisee were possessed or not would be wholly immaterial, as to the object of this law; and such a possession *Sarah Young*unquestionably had.

But, in the second place, even if this were not so, the only * consequence would be, that this particular case is not within this first clause of the act. For when that clause speaks of lands which have been *possessed by the first devisee,*shall we say, it means lands which have never been so possessed ? or shall we pervert the whole meaning of language and say, that the heir who was not born at the time of the making of the will, and who comes in by descent after the death of *the first devisee,*is, himself, *the first devisee ?*Even that he should be called the *second*or *next devisee,*is making a very liberal allowance for the colloquial application of words, but to call him the *first,*would be a total abandonment of their meaning, both in colloquial and technical discourse. Surely, then, they cannot be thus distorted to meet a favourite case, or support a hasty opinion. They must receive their construction ; their meaning must be fixed; and, when fixed, must prevail in all cases.

There is a way of arguing, or rather of talking, upon subjects of this kind, which sometimes prevails, but which, notwithstanding, is far from being satisfactory. We frequently hear it said, that *taking the 'act altogether,*it means so and so, always what the speaker would have it mean ; and yet, when we come to analyze it and examine its several parts, neither any one clause, nor all of them taken in connexion, as they always must be, can, upon any rational construction, be made to mean any such thing. This is a mode of argument, or rather of carrying a point, without argument, which it is impossible to refute or to stand against, and yet it is altogether hollow at bottom. We have no right to say, the legislature meant what they have not expressed, and much less, the very contrary of what they have expressed.

Upon the whole then, I conclude that this first clause of the act does not at all bear upon our case, or give any rule concerning it.

*819And, as to the second clause, that,' so far as it relates to anterior devises, gives the fee to those only who come in by descent, after the passing of the act, to which neither *William Young*nor *Bilderback,*can make the smallest pretence. The first and second clauses state particular cases, in which the estate shall be converted into a fee-simple, and they touch those cases only; but the third is more general, it comprehends all cases of entailment, whatsoever. If the entailment had been created before the passing of the act, and the life of the first devisee, as *above understood, was then extinct, it from that moment ceased; if it should be created after the passing of the act, or if the life of such first devisee were not then extinct, it should, upon such life becoming extinct, immediately cease. The first two clauses direct in whose hands the estate shall become a fee-simple ; the last cuts off the entailment, destroys the limitations, unfetters the estate, in whosoever hands the same may be lawfully found.

But taking this for granted, what effect will it have in this case; or in other words, in whose hands did the act find this estate at the time of the passing of it.

The plaintiff has argued this question, as if the alienation by the tenant in tail, though purporting to be in fee, passed an estate for the life of the tenant in tail, only, putting the remainder, if I may so call it, of such estate tail, in *abeyance,*for the benefit of the issue; and that therefore this act, if it operates upon this estate at all, must operate upon it as it rests in *abeyance,*must unfetter it, for the benefit of the heir, and render it a fee-simple in his hands, and not in the hands of such alienee.

But I believe this doctrine cannot be maintained. A tenant in tail has an estate of inheritance in himself. He had it before the statute *de donis,*under the name of a conditional fee, and that statute makes no alteration in it in that respect, it only restrains the alienation of it to the disinherison of the issue in tail. He has the estate in him; and as the power of alienation is an incident inseparable from it, he may alien it by any of the usual modes of conveyance, and vest it in the alienee, as completely as he himself had it. In the hands of the alienee, *820indeed, it is not called an estate tail, but a base fee, a fee - defeasible by the issue in tail. And though such alienation, if it be by feoffment with livery of seizin, or by fine .of record with proclamations, will toll the entry of the issue, and put him to his *formedon in the descender,*yet even in that case, it has never been considered as a violation of the statute *de donis,*and much less, if it be by bargain and sale, or other conveyance which has its operation by the statute of uses, and which puts him to entry only.

Since, then, the tenant in tail has an estate of inheritance, since the power of alienation is inseparable from such an estate, and since such an alienation, though it put the issue to his *formedon,*or to his *entry,*is no violation of the statute, it follows that an estate, created by such alienation, does not determine by the *death of the tenant in tail, but remains until defeated by the heir. This is the doctrine laid dowm in the case of- *Michal v. Clark,*in 1702, *(Salk.*619, and passim) and has been recognized as the law in every succeeding case upon that subject.

If the estate of such alienee were for the life of the tenant in tail only, no unfettering of it from its limitations, could extend it, in his hands, beyond that period, without a new conveyance, it would still be an estate for life, and to whomsoever it might afterwards go, it could not be retained by him. But being an estate in fee, that is, an estate of inheritance, not terminating upon the death of the tenant in tail, but subject to the limitations of the first gift only; if such limitations be moved out of the way, it becomes absolute, and is no longer defeasible. There is nothing to defeat it.

Hence, we find* that if tenant in tail, sell to one and his heirs, and afterwards, suffer a fine or common recovery-, with a declaration of uses to another, this fine or recovery, if good in itself, shall operate to the benefit of the bargainee. It unfetters the estate which is already in his hands. Same case, *Michal*v. *Clark. Tyrrel*v. *Mead, et al. Bur.*1703. *Stapilton*v. *Stapilton,*1 *Atk.*3.

So. if a tenant in tail confess a judgment or statute, or make a mortgage, and afterwards suffer a recovery, which bars the entail, such recovery lets in the incumbrancer. *821And so also, if there be tenant in tail, special, as to the heirs of his body, by his present wife, with remainder himself in fee, and he alien, and then the issue fail, the failure of issue unfetters the estate, and it shall be indefeasible in the hands of the alienee, and shall not pass in the remainder.

We may fairly conclude then, that if tenant in tail alien or incumber the estate, and afterwards remove the limitation, or bar the entail, it shall inure to the benefit of the alienee or incumbrancer, *because,*he alone has the estate upon which it can operate, *(a)*

The notion, therefore, that this estate tail was in *abeyance,*and that the act operated upon it in that situation, and unfettered it for the benefit of the issue, is without foundation.

The act, if I have taken a correct view of it, operates upon the *estate*without respect to the person in whose hands it may be found ; it destroys the limitation ; it declares the entailment shall not continue. Well then, if it does so operate, and if it *operates upon this estate at all, it must operate upon it in the hands of the defendant, for it exists no where else; it must destroy the limitation, and bar the heir in tail in their favour. By what right shall the heir come in ? By the entailment ? *It shall not continue to entail the same longer than the lije of the person to whom the land teas first given, that is, the life of the donee in tail, the propositus,*the person from whom the line of entailment was to begin, and from whom the issue was to proceed ; and in this case, that person was *Sarah Young,*who was dead long before the passing of the act.

In considering this question, I have taken no notice of the case of *Hinchman*v. *Clark, et al.*cited from *Coxe’s*reports, because, though the same question was raised by the counsel there, it was not decided by the court. The Chief Justice, *Kinsey,*in his very able and handsome exposition of the case, places the stress of the argument upon the very circumstance that the defendant expressly and publicly purchased the land for the life of the tenant *822in tail- only, and no longer, so that the decision there has ■ no bearing upon this case,

Upon the whole matter, then, I am of opinion that the *.postea*should be delivered to the defendant.

Rossell J.

united in this opinion.

Southard J.

In the result of the argument of the Chief Justice, I entirely concur. I differ somewhat as to the operation of the first clause and the enlargement of the estate.

The object of the statute was, so to order estates, that entails should not last longer tham the life of the first taker. It often happened, that a testator was willing to benefit an individual, perhaps his child, by the use of his estate, during that individual’s life, but had not sufficient confidence in him, to entrust the whole estate to him, lest he should squander it, and thus it should never reach his heirs, whom the testator designed ultimately and principally to benefit.' This object was laudable; but it was against the public policy to continue lands by legal restraints, for ages, in the same family. The legislature therefore, intended to unfetter and release it, after the life of him to whom it was first given: to free the land, but to free it for the benefit of the heir, to whom the testator directed it to go. The two objects are always to be united : otherwise, it would happen in *many cases, that the estate would, in effect, be a fee in the hands of the first devisee. He sells; if it be enlarged in the hands of purchaser, the second devisee or heir, is altogether defeated; and the first has really sold a fee. Whether, therefore, this estate was enlarged for the benefit of *Bilderbaclc,*depends on the question, who was first devisee or taker. If *Sarah Young,*then *William*is the second, and the estate was enlarged for his benefit, and of course for the benefit of his alienee. If *William,*the statute cannot operate until the estate comes to his heir; his purchaser can receive no benefit from the enlargement, and the lessor must recover, for his father could not by an improper sale, take the estate from the heir in tail.

Who then is the first devisee ? It is a case of lands *823devised in tail before the statute; if therefore, it had passed through one, and was *then*in the second or remote descent, and the holder was in the line of descent, it became a fee. *Den*v. Fogg, teaches us, that this second in descent, is the second in the same line, and if two or more lines are created, and all except the last fail, without enjoying the land, it must be the second in that line. *Sarah Young*is not then, a second devisee ; she is the first, in the line, in which she is to take. It commences with her. If she had been living, at *Mary Mason’s*death, she would have entered into actual possession, not as second, but as first, devisee; not by right derived through another, but by original gift. Such being her right, after *Joseph Wood’s*death, she had necessarily, until her own death, a possession of the estate, in virtue of *Mary Mason’s*possession. The remainder was neither contingent nor in abeyance. *William Young,*then, when he entered into actual possession of the estate, did it not as first, but second in the line ; he did not take by original grant, but derived his right by descent, through his mother. When he sold, with warranty, his deed conveyed such right as he had, and no other. It conveyed his right as tenant in tail.* It placed *Bilderbach*in the enjoyment of all his rights. *Bilderbach’s*possession was his possession; *Bilderbach’s*rights his rights; and at his death, his heirs had a right to enter, as if he had not conveyed. At the passing of the act, *Bilderbach*virtually stood in his place. The land was held by virtue of, and to the extent and no more, of the rights of the second person in the line of entailment. It was land, therefore, on which this clause of the statute fairly operated. *William * Young,*united, in himself, all the requirements of the statute. He was the second devisee, or possessor, in the line of entailment. And, when to this is added, the express provision, that no devise shall entail longer than the life of the person to whom it was first given ; I do not perceive how it was possible to continue until it reached the lessor, the third in the line. The estate must have been unfettered in *William’s*life.

If this be not so, I am at a loss to see when and how this statute is ever to affect this land at all. It must go *824quit from all restraint. There is no clause of the act applies to it. The moment the law passed, I consider the estate in this land as becoming a fee for *William’s*But he had sold not only his right as tenant in tail, but a right as tenant in fee; which he then had not. Having so sold, he cannot, against his own deed, recover. The lessor cannot recover all, because it is no longer entailed. The heirs general of *William*cannot recover that which he had sold, and from which he was barred. The title of defendant is clear.

*Postea*delivered to defendants, and judgment for them.

(a)

*Farley vs, Craig, 6 Hal. 278.*

(a)

*Wright vs. Scott, 4 Wash. C. C. 16. Den, Berdan vs. Van Riper, 1 Har.*7. *Den, Spachius vs. Spachius, 1 Har. 172. Den, James vs. Dubois, 1 Har. 286. The Boston Franklinite Co. vs. Condit, 4 C. E. Gr. 394. Van Note vs. Downey, 4 Dutch. 219.*

(a)

**See Nix. Dig. 146, § 16.

(a)

 See *Porch vs. Fries, 3 C. E. Gr. 205. Moore*vs. *Rake, 2 Dutch.*574. *Vreeland vs. Blauvelt, 8 C. E. Gr. 483.*