#### Den *ex dem.*Thos. Southerland *et ux v.*John Cox.

A devise to two, but if “ either of them die, leaving- *no*issue, that the whole should *go*to the survivor,” is a good executory devise — and the devisees take as tenants in common in fee, with a contingent limitation to each of them, of an estate in severalty.

Ejectment, tried at Washington, on the last Spring Circuit, before Swain, Judge.

On the trial, the lessors of the plaintiff claimed under the Will of *Miles Hardy,*which was in the following words: *il*I give and bequeath to my son *Henry, and my*daugh- *“*ter *Harriet Lee Hardy,*all the lands Í may be possess- *“*ed of at my death. It is however, my will and inten- *“*tion, that if either of my children aforesaid, at their *“*death, should leave no issue lawfully begotten, that “ the whole of my estate, both real and personal, should *“*descend to the survivor, and if they should both die, *“*without,” &c. They then proved, that the testator died in 1816, and that in 1819, under an order of the County Court of Washington, a partition of the land in dispute, which passed under the will, was made *between*the devisees, by which, 199 acres were allotted to each of them, and that *Henry*died in 1830, without *395issue, and claimed the title to be in. the female lessor of the plaintiff, who, before her marriage, was *Harriet L. Hardy.*The defendant insisted, that under the will of *Miles Hardy,*his son *Henry,*took an estate in fee; he objected to the partition as being informal, but for reasons which need not be stated. He claimed title to part 6f the land in dispute, against both the devisees, under an execution issued at the instance of the officers of Washington County Court, whereby the sheriff was commanded to sell the estate of both in the land. But from the return of the sheriff, it appeared, that the estate of *Henry*only was sold ; and by his deed to tiie purchaser, nothing but *Henry's*title was conveyed — The defendant claimed the residue of the land under execution sales of *Henry Hardy's*property, and proved that he took possession of the land in dispute after those sales, and had continued it for more than seven years. Lastly, it was objected by the defendant, that notice to quit had not been given him before the writ was sued out.

His Honor instructed the jury, that the will of *Miles, Hardy*was a valid limitation by way of executory devise to *Harriet Hardy;*that upon the death of her brother, without issue, she became entitled to the land in dispute; that if before the death of *Henry,*the interest of *Harriet*was subject to be sold under an execution against her, (which his Honor did not decido.) that neither the levy of the sheriff as set forth in his return, nor his deed to the defendant, would affect her title ; that the possession Of the defendant was not adverse to the title of the lessors of the plaintiff, until *Henry’s*death in 1830, and that her right of entry was in no manner impaired by it; and finally that no relation existed between the lessors ofthe plaintiff and the defendant, whereby the latter was entitled to notice to quit.

A verdict was returned for the plaintiff, and the defendant appealed.

*Gaston,*for the defendant.

*Badger, contra.*

Daniel, Judge,

after stating the case, proceeded: The first question for us to decide is, whether *Harriet*
      *396
      *Lee Hardy,*who married *Southerland,*took the land in question, under the will of her father. *Miles Hardy,*by way of executory devise. Executory devises have generally been distinguished into three kinds ; two relative to real, and one to personal estate. An instance of the first kind, is one where the devisor gives the fee, but upon some contingency, that disposition is qualified, and an estate limited on that contingency ; as where a testator devised to B, his son in fee, but if he died without issue, living A, then to A in fee: It was held, thatB took a vested fee-simple, and that the limitation over to A was good as an executory devise, to take effect upon B’s dying without issue in the life time of A* *(Pells*v. *Brown, Cro. J.*590. 1 *Eq. ca. Ab.*187.) Again; where a testator devised lands to his son B in fee, and other lands to his son C in fee, with a proviso, that if either of them should die before they should be married, or before they-should attain the age of 21 years, or without issue of their bodies, then lie gave all the lands which he had given to such of his sons, so dying, &c. unto the one who should survive: it was held, that the sons took in fee, subject to a limitation to the survivor, in case either died unmarried, or under the age of 21 years, without issue. (Han*bury*v. *Cockerell. Fearne*396.) According to these authorities, it appears to me, that *Henry Hardy*was a tenant in common in fee of the lands in question, with a contingent limitation to his sister *Harriet,*and she held the same estate with a contingent limitation to her brother *Henry.*The testator, by his will, says, “ if either of my children aforesaid, at their death, should leave no issue lawfully begotten, that the whole of my estate, both real and personal, should descend to the survivor.” Here the event must necessarily happen, if ever, within a life in being, and immediately on the death of a person in being at the time of making the will, and the survivor is entitled to take, by way of an executory devise, the whole estate in the land. The event on which the contingent limitation was limited, must necessarily take place within the period fixed by law for executory devises to vest; the event has taken place, *397
      *Henry*has died, leaving no issue lawfully begotten “ at bis death.” and Harriet, as survivor, on that event bad a vested estate in fee .simple in the whole of the land. As *Henry,*by the will of his father, had a base fee in the land, on which estate there was created by the will, an executory devise to his sister, no conveyance which he could have made in his life time would have destroyed that executory devise, so neither will it be affected by an execution sale, and a deed from the sheriff to the purchaser. It is a rule, that an executory devise cannot be prevented or destroyed by , any alteration what ever in the estate out of which, or after which it is limited. *(Romilly v. James,*1 *Eng. C.L.R.*379.)

An executory-devise in land is not destroyedby a sale under an execution against the first devisee.

A sale of the es. tate of one ten. ant in coiomon under an execution against al], does not divest the estate of the others.

The second objection made by the defendant, is altogether immaterial in this case. *Harriet,*on the death of her brother without issue, was entitled to the whole land, and whether partition was or was not made, does not affect the case. If a regular and' legal partition had been made, and the defendant had purchased *Henry’s*share, then *Harriet’s*right of entry into that part would not have accrued until the death of *Henry,*which was in the year 1830. If no partition was made, then the defendant, after his purchase, was tenant in common with *Harriet,*and his possession was the possession of both. The third objection has no force in itthe sale under the execution, at the instance of the officers of the court, against *Henry*and *Harriet Hardy,*being of the estate of *Henry*alone, as appears by the return of the sheriff, and the recitals in his deed to the purchaser. *Harriet’s^*state in the undivided moiety of the lands which had belonged to *Henry,*never vested until the year 1830, her right of entry as to that part, did not arise before that time, and she is entitled at least to recover that, moiety. But did the sheriff’s deed pass her undivided moiety? I think the estate which *Henry Hardy*had, passed by the sheriff’s deed, and that the deed conveyed nothing in *Harriet’s*share, nor is it colour of title as against her.

The fourth objection is without weight, as the defendant, (provided the sheriff’s deed did not convey the *398Hioiety belonging to *Harriet,')*was tenant in commoil with *Harriet,*anti a possession of one tenant in common is in contemplation of law, the possession of all the tenants in common, and is so considered until something shall evince an actual ouster, and nothing of that kind appears in this case ; a bare perception of the profits for so short a space of time as the defendant has had the possession, is not sufficient evidence of an actual ouster. *Henry*died in the year 1830, his interest under the executory devise, did not vest in his sister until that time, and this action was brought in a short time thereafter ; the entry of *Harriet*is not barred by the act of limitations. The fifth objection will not avail the defendant. There was not any such relation between the' lessors of the plaintiff and defendant as required a notice to quit.

An executory devisee has no right of entry Until the contingency happens upon which his estate vests.

Pee. Curiam. — Judgment aeeirmed-.