OCTOBER TERM, 1768.

Lib. D. D. No. 15. fol. 173.

#### Arthur Holt’s Lessee *against*Samuel Smith.

EJECTMENT for a traqt of land called *Huddle’s*Right, lying in *Kent*County.

From the special verdict found at the *Kent*Assises, held at *September*term, the state of the case appeared to be, that *James Sterling*was seised as tenant by the curtesy, and by bargain and sale conveyed the land in question to *John Gresham*and his heirs; that *John Gresham*entered and died seised during the life of the tenant by the curtesy. *John*Gresham, the son and heir at law, entered on the death of his father. *James*Sterling, the tenant by the curtesy, died, and *John*Gresham, the son, continued in possession after the death of the tenant by the curtesy, and executed a lease to *Samuel*Smith, the defendant, for one year. *Arthur Holt,*the heir of the reversion, never entered.

Two questions arose out of the special verdict:

1. Whether it was necessary for *A.*Holt, the heir to whom the reversion descended after the death of the tenant by the curtesy, to enter, to vest himself with the possession ?

2. If it was requisite whether the confession of lease, entry, and ouster, by the defendant, did not extend to such an entry?

*Hollyday,*for the plaintiff.

If the tenant for life bargains and sells in fee, it passes only an estate for life. 1 *Bac.*274. 2 *Bac.*280. A particular estate of any thing that lies in grant cannot be forfeited by any grant in fee by deed, because nothing passes *274thereby but what lawfully may pass. *Co. Litt.*251. *Haw. Abr.*339. 1 *Lev.*264. pi. 354.

There are two sorts of descents which toll entries — in fee an<^ in tail. *Co. Litt.*sect. 385. The dying seised for one’s own life, or for the life of another, never takes away an entry. *Co. Litt.*sect. 387. The bargainee of tenant in tail has an estate descendible, and determinable on the entry of the issue in tail *only.*2 *Salk.*619. 2 *Lev.*190.

The tenant in possession must confess lease, entry, and *ouster.*Gilb. *Eject.*2, 3, 4, 5. 68. 70. The confession of lease, entry and *ouster*extends to the entry of the lessor to complete his title. 2 *Show.*201. 2 *Lev.*248. *Co. Litt.*218. a. 2 *Ray.*750, 751. S. C. 1 *Salk.*259. 3 *Keb.*382. 1 *Vent.*248. An actual entry is necessary to avoid a fine, and the confession of an entry to deliver a lease in ejectment, shall not operate to avoid afine. 2 *Stra.*1086. *Andr.*136. *Gilb. Eject.*27. *Cro. Eliz.*438. The confession of lease, entry, and ouster, confesses an eniryprevious to the making of the lease. 1 *Burr. 111.*

Goldsborough, for defendant.

An actual entry is necessary to divest the estate out of Smith, the lessee of *John*Gresham, the bargainee of the tenant by the curtesy. An estate of freehold cannot cease without an actual entry. *Co. Litt.*214. b. 218. a. A tenant at sufferance comes in by lawful demise, and, after the determination of his estate, holds over wrongfully. *Co. Litt.*57. b. A trespass will not lie against a tenant at sufferance before an entry made. 2 *Bl. Com.*150. *A possession in law*is not sufficient to maintain an ejectment; but it must be an *actual possession.*2 *Bulst.*217. Noy, 73. *Law oj Eject.*68, 69. 2 *Bac.*171. Nothing is confessed by the confession of lease, entry, and ouster, but what is laid and charged in the declaration.

By entering into the common rule, nothing more than an entry to make the lease, is confessed. 3 *Keb.*282. The *title of action*is not confessed by the confession of leas.e *275entry, and *ouster.*2 *Bac.*171. The defendant is compella» ble to confess lease, entry, and *ouster. Gilb. Eject.*27. The confession of lease, entry, and ouster, to deliver a lease, shall not operate so as to avoid a fine. 2 *Stra.*1086. *Andr.*36. The confession of lease, entry, and ouster, confesses the entry of the lessor previous to the malting of the lease, *for the purpose of the trial of the title only.*1 *Burr.*111. 1 *Vent.*248. *Salk.*259. *Gilb. Eject.*224. It is only *& fictitious,*not a real entry, that is confessed.

*The judgment*on the special verdict was for the plaintiff ; and it was resolved by the unanimous opinion of the Court, that the confession of lease, entry, and *ouster,*laid and charged in the declaration, extends to an entry to complete the title of action ; but not to an entry that is requisite to regain and revest the possession.