OCTOBER TERM, 1768.

Lib. D. D. No. 15. fol. 165.

#### William Mayson’s Lessee *against*Benjamin Sexton.

EJECTMENT for a tract of land called *Keepont,*ly* ing in *¡hieen Anne’s*County.

At the trial of this cause at the Assises, the Jury found *by*their special verdict, that *Catharine Sexton*was seised in fee of the land in question, and, being so seised, devised it to her daughter *Priscilla*in tail; by virtue whereof *Priscilla*entered, and, being seised thereof, married *William Mayson,*whom she survived, and then married *John Burk,*who joined with his wife in a deed of bargain and sale, with warranty, (dated 14th *March,*1732,) conveying the land in question to *Patrick Sexton,*father of the de» *276fendant, from whom the defendant makes title. *Priscilla*survived her husband, *John*Burk, and died leaving issue *William*Mayson, of full age, the lessor of the plaintiff, by her first husband, and her heir at law.

*Holly day ^*for plaintiff. (Short notes.)

The question is, whether, as the mother of the lessor of the plaintiff, being tenant in tail and a *feme covert*at the time the deed of bargain and' sale was executed to *Patrick*Sexton, the warranty contained in the said deed will work a discontinuance. A *feme covert*cannot, by any conveyance *in*pais, make a discontinuance. By common law, a *feme covert*cannot convey land but by a fine. A grant of rent, with warranty, will work no discontinuance, and a bargain and sale is of the same nature, and similar. 1 *Bulst.*162, 163. *Co. Litt.*332. a. b. sect. 618. If it was a discontinuance to the issue in tail, it must be so to the remainderman and reversioner. *Litt.*sect. *595.*597. 620. But a bargain and sale with warranty will work no discontinuance to the remainderman and reversioner. 3 *Leon.*16. pi. 39. By the statute of 32 *Hen.*VIII. c. 28. s. 6. no conveyance shall work a discontinuance, by the husband alone, of the wife’s land; and although the wife joins, it is within the statute. *Co. Litt.*326. a.

Pace, for defendant. (Short notes.)

Discontinuance is the creating of unlawful estates. It is the alienation of the possession, where the right of action is left in another. *Gilb. Ten.*107. *Co. Litt.*327. b. By what conveyances a discontinuance may be made, see 2 *Bac. Abr.*96. Discontinuance may be by fine and recovery, feoffment, release, Or confirmation. Discontinuance may be by feoffment without warranty; but a release or confirmation without warranty is not, for there \a man can pass no more than he may lawfully pass. *Idemí*So by a bargain and sale a man can pass no more than what he may *277rightfully pass, and a warranty to a bargain and sale is of the same effect as to a release or confirmation.

Tilghman, for defendant. (Short notes.)

Originally the lessor in ejectment made an actual entry and lease. *Law of*Eject. 20. And if he had no right of entry, he would be a disseisor at this day. A bargain and sale by tenant in tail determines only upon the entry of the issue in tail; therefore the estate conveyed must be a base fee. 2 *Raym.*779. The warranty descending upon him who hath the inheritance, makes a discontinuance. *Finch’s*Laxo, 193. *Co. Litt.*327. a. 329. a. 2 *Bac. Abr.*89. A warranty will work a discontinuance *ab ejfectu. Co. LitU*339. a. A bargain and sale is as effectual a conveyance a§ any whatever; and a warranty annexed to a bargain and sale will work a discontinuance. *Shep.*222. 224. A warranty annexed to a release will work a discontinuance, although the release itself would not. *Co.*Litt. 327. b. 328. a.

Gordon, for plaintiff. (Short notes.)

A bargain and sale with warranty will not work a discontinuance to a remainderman, but determines with the estate tail. 3 *Leon.*16. pi. 39. And wherever a *feme covert*can convey, she may annex a warranty to that conveyance. 2 *Keb.*684. *Baron and Feme,*175.

*Paca.*(Short notes.)

The objection is only in bar of the remedy, and not of the *right;*therefore there is no occasion to shew assets descended. A discontinuance by warranty is different from that by deed. Where there is a warranty, the deed is immaterial, provided the estate passed under a deed. *Co. LitU*sect. 612, 613. 600. *Co. Litt.*328. a. 340. a. *Gilb. Ten«*119. 126, A warranty by deed, or a warranty in law, will *278affect him in' remainder, but *contra*of actual warranty. 10* Co. 96. a. b. 4 *Leon.*251. There can be no discontinuance of things that lie in grant. 2 *Bac.*94. At common iaw? a *Jeme covert*can pass an estate but by fine.. She may make use of every incidental, requisite for the security of the estate. Ergo, she may make warranty. *Baron and*Feme, 174. 1 *Sound.*177. 1 *Mod.*290.

*S. Chase,*for defendant. (Short notes.)

A warranty of an estate of inheritance, or for life, descending upon him who ought to have such estate, makes a discontinuance. *Finch’s Lazo,*193. *Vin. Disclaimer,*515. *Co. Litt.*339. 328. 373. *Salk.*245. *Lutzv.*770. 782. *Carth.*110. *Jones,*397. *Bro. Diss. de Foss.*pi. 3. *Entr. Cons.*pi. 19.

Bargain and sale *with warranty*is no discontinuance *to him in remainder.*3 *Lev.*16. 10 *Co.*65. 95. Warranty in this case will not bar, because the particular estate to which it is annexed determines upon the death of the tenant in tail without issue. *Co. Litt.*329. *Vide*2 *Burr.*707. *Bro. Diss. de Poss.*pi. 20. 27. *Co. Litt.*327. *vide*601. 3 *Co.*85. *Latch.*64. 72. A discontinuance takes away entry. *Co. Litt.*327. 339. 325. If an intruder dies seised, entry is tolled. *Co. Litt.*238.

*Sincere.*Whether warranty can toll entry at this day? Whether the reason of the law is not changed, as the warranty may be given in evidence in ejectment, and is not lost by entry. 10 *Co.*95. *Salk.*244.

A descent cast when the heir, who hath right of entry, is within age, shall not toll the right of entry; but *contra,*If the infant had no right of entry at the time of the descent cast. *Co. Litt.*245. b. 3 *Bac. Abr.*tit. *Infant.*See *Co. Litt.*327. 329. why a warranty binds. It is not the warranty alone which makes the discontinuance; but the *warranty and descent. Co. Litt.*329. A warranty has the effect of a discontinuance in taking away entry. *Co. Litt.*339.

*279A warranty will work the effect of a discontinuance, in snany instances, where a mere deed of feoffment will not. *Co. Litt.*340. 391. sect. 743. If tenant in tail makes a lease for the life of the lessee, and afterwards bargains and sells the reversion in fee, it is a discontinuance. *Co. ■Litt.*333.

By a bargain and sale by tenant in tail, a *base fee*passes determinable upon the entry of the issue in tail. *Salk.*619. 1 *Saund.*260. 2 *Raym.*778. Comyns, 110. *Gilb. Ten,.*119, 120.

*Objection.*Bargain and sale by tenant in tail, conveys no more than the tenant may lawfully convey, which is for the life only of the tenant in tail, and the warranty in this case, extends only to the estate conveyed, which being determined upon the death of the tenant in tail, the issue may enter, no warranty descending. 10 *Co.*96. *Seymour1 s*case.

*Answer.*All grants, confirmations, releases, &c. by tenant in tail, convey only what he may lawfully convey. *Co. Litt.*330. sect. 600.606,607, 608. comment on section 610. 612, 613. and yet when a warranty is annexed to these conveyances, it works a discontinuance. *Co. Litt.*339, 340. 329. sect. 640, 641. 601. 637. 606, 607, 608. *Co, Litt. 325.*373.

A *feme covert*may bind herself by a warranty', in a fine suffered by *Baron and Feme. 1 Mod.*66. 290. 2 *Saund.*180. 2 *Saund.*case 177. 2 *Keb.*684. 703.- 709. 723. *Hob.*20. and so in a bargain and sale, *Baron and*Feme, 174, 175.1 *Lev.*301. 1 *Sid.*466. 1 *Danv. Ab.*708. 2 *Danv. SO,*1 *Brownl.*90. 2 *Brownl.*169. *Bob.*20. Moor, 859. 4 *Led.*250. *Winch. Ent.*427.

The issue in tail could not enter against warranty', but was put to his formedon, in order that the defendant might plead assets in bar. At this day the issue in tail is not barred without assets. *^ucere.*Whether warranty works a discontinuance so as to toll entry ? *Anszuer.*Assets or no assets must come in question, upon suit brought as well now as before, and it would be strange to allow the entry *280before that question is determined ; a suit, therefore, must be brought, of such a nature, as would lie *without an entry:*so at common law, if assets descended, the issue in tail was bound, and if there be a release with warranty, the issue jn could not enter, but would be put to his suit, in order to bring the point, assets or no assets, in question. *Co. Lilt.*sect. 6QO. He must brin *'gformedon. Co. Litt.*326.

Though the reason of the law be changed, yet if it be once introduced as the rule of property, it is not to be departed from, 2 *Burr.*110/.

A bargainee may vouch to warranty. *Shep. Touch.*222. Though a bargainee be jn the post, he may rebut, and vouch, if there be warranty.' *Shep. Touch.*222. 200. 529. J99, *Moor,*case 1180.3 *Co,*62. *Woods's Convey, 651.1 Modf*192. 2 *Mod.*14. *Gilb, Ten,*128. 136. What is *rebutter*and *voucher,*see *Jacob's*Dictionary, and *Termes de la Ley.*

Upon confirmation, or release with warranty, releasee or confirmee cannot *vouch*but may *rebut. Llob.*20. 22. Warranties are favourably expounded. *5 Bac. 57.*A bargain and sale is upon a footing with a release. *Gilb. Ten.*119. Where a deed passes an estate, subject to the entiy of the issue in tail, it is no discontinuance ; but if there be a warranty, it works a discontinuance, *Gilb. Ten,*126. *Co. Litt.*340, 339. A release alters the estate of the disseisor, *Gilb. Ten, 55. Co. Litt,*sect. 466. Confirmation may bind the estate, but not alter it, *Popham*51.

The Provincial Court gave judgment for the plaintiff