#### Jackson, *ex dem.*Austin and others, *against*Howe and others.

NEW YORK,

October, 1817.

A. was a in this state and was killed in 1778 : B. his brother was his heir at iaw% and died about the clc*e oí the war» dLrh'sti.e voluUo.iary war, 1‘¡dJuín^nJ» pLwn"*? marV "wf * j¡ *¡T'ím^'ciuw.*right in the lot in an action of ejectment by the heirs of B. to recover this lot, that hy the act ee«s. 36. c. CO. 8. 1 IN. R. L. 303. the title to the lot in A. at the time of his death, without reference to the time when the pateht issued ; (hat as by the 7th section of the same act. the miss of descent established by the act (Hess. -9. c 12 ) applied retrospectivelyto the cases within the 1st section, ii B. had died before A., the children of B., on the death of A., would, hy the 5th canon of descents, have inherited the lot, as tenants in common; and il B., surviving A , had died seised of tho pivmt'-ea. ail his children would entitled as tenants 'in common'iftnlev ti e first canon of descents; ano that B., although never actually in possession, was to he deemed to have died seise I, (a -<-ihin in fact no*' being required in the vase of uild and lands,) and thus became ’a new stock ol *r>e<n**nt. so tnar the conveyance, of C. (who, if A., were to be deemed the person last seised, vuAUd be the heli at the nuiimv#! lav.' could u.-v operate on the right which he h&d as one oi the co heirs of 1$,

THIS was an action of ejectment, brought to recover part of •lot No. 73, in the township of *Geneva,*late *Milton,*in *Cayuga*county.

The plaintiff, at the trial, produced in evidence an of a patent for lot No. 73, to *Jeremiah Austin,*dated *October*7th, 1807 ; and the defendants gave in evidence the record of a deed from J. *Austin,*and *Ruth*his wife, to *Cornell*and *Barton,*for the same lot, dated *December*29th, 1805. It was then proved, on the part of the plaintiff, that *Jeremiah Austin,*the patentee, was a soldier in the line of this state during the revolutionary war, and was slain in battle, in the year 1778, v *408leaving no other relative, or heir at law, than one brother* namecl *David Austin ;*and that *David Austin*died about the close of the war, leaving six sons and two daughters, his heirs at law.

The records of several deeds were then given in evidence on the part of the defendant: 1. A deed dated *December*27th, 1806, from *Mary Jenkins,*one of the daughters of *David Austin,*describing herselt as heir at law to *Jeremiah Austin*to *Cyrus M. Wheeler,*for the lot in question. 2. A deed from *Charles S. Austin,*a son of *David*Austin, and a lessor of the plaintiff,, dated the 30th of *December,*1806 in which he describes himself as the sole heir at law of *Jeremiah Austin,*also to *Cyrus 31. Wheeler. 3.*A deed from *Holmes Austin,*the eldest son of *David Austin,*anda lessor of the plaintiff, dated *J uly*8th, 1809, to *Shadrach Austin, for*all his right in the lot. 4. A deed from *Samuel Austin,*another of the sons of *David Austin*and a lessor of the plaintiff, dated the 8th of *July,*1809, to *Charles S. Austin,*for the lot. 5. A deed dated *June*15th, 1811, from *Charles S. Austin*to *Edmund Lewis,*for three and a half eighth parts of the lot. 6. A deed dated the 15 of *April,*1811, from J. *Austin to Gerit Harring, Abraham Harring,*and *Martin Howe,*for 200 acres of the lot, including the premises in question.

A verdict was taken for the plaintiff, generally, subject to the opinion of the court, on a case containing the facts above stated.

Richardson, for the plaintiff.

*Cady,*contra.

Spencer, J.,

delivered the opinion of the court. The lessors of the plaintiff deduced a title under *Jeremiah*Austin, a soldier in the revoutionary war, and produced letters patent, dated the 7th of *October, 1807,*for the lot in question, to *Jeremiah Austin.*It was proved that he was slain in battle, in 1778, and at the time of his death left no other relative but one brother, *David Austin,*who died about the close of that war, leaving six sons and two daughters, several of whom are lessors of the plaintiff; and it was admitted upon the argument, and so the fact is, that if the objections made to the plaintiff’s recovery are unfounded, he is entitled to recover one moiety of the lot; the *409defendants having shown a title from the children of *David Austin, to*persons not lessors, to the extent of one half of the lot. '

The objection to the plaintiff’s recovery is this; that the children of *David Austin*cannot inherit through him, as he was not seised, in fact, of the premises; that they must make title as heirs of *Jeremiah $*and then *Holmes Austin,*the eldest son of *David,*was the sole heir, and he having conveyed his right to the lot to a person not named as a lessor of the plaintiffs, the plaintiff’s claim was defeated.

The first section of the act of the 5th of *April,*1803, reenacted on the 8th *oí April,*1813, (1 ,/Z i?. Z. 3C3.) enacts, that the title to all lands, granted by letters patent to officers and • soldiers serving in the line of this state, in the army of the *United States,*in the late war with *Great Britain,*and who died previous to the 27th of *March,*1783, shall be, and thereby is, declared to have been vested in the said persons at the time of their deaths respectively. This court have had occasion to express a decided opinion on the validity and operation of this act. (3 *-CaineA Rep.*62. 2 *Johns**Rep. 80.) We considered it free from any objection; and that the title was absolute-* ly vested in the soldier, at the time of his death, without reference to the time when the letters pateht, in- fact, issued. The letters patent are only evidence of the grant; and by force of the act, the title relates back to the period of the death of the soldier.

The rule of descent established by the act “ to abolish entails, to confirm conveyances by tenants in tail, to regulate de- • scents, and to direct the mode of conveyances to joint-tenants,” was, by the act of the 5th of *April,*1803, and also by the act of 1813, before referred to, declared to apply to, and govern in, all the cases provided for by the first section, except where the ’ends specified in any of the letters patent therein mentioned, or any part thereof, were, on the 5th of *April,*1803, held by *bona fide*purchasers, or devisees under any person or persons who would have been the heirs at law of the patentees, if that provision had not been made.

In this case, it cannot be pretended that any part of the lot in. question was held, under conveyance from *Holmes Austin,*the eldest son of *David,*anterior to the year 1806. The consequence is, then, that all the children of *David,*under the fifth canon of descents, would inherit as heirs of *Jeremiah,*as tenants *410in common, such share as would have descended to their father *David,*had he died prior to *Jeremiah.*He, however, survived *Jeremiah,*and if he is to be deemed to have died seised of the premises, then all his children take, as tenants in common, under the first canon of descents.

There can be no doubt that *David Austin*was so seised of the premises, as that his heirs may claim the inheritance through him.

This court decided, in *Jackson*v. *Sellick,*(8 *Johns. Rep.*269.) that it was not necessary there should be a possession *in fact,*in the wife, to entitle her husband to be tenant by the curtesy; and, by the *English*law, it is as necessary, that the wife should he seised to entitle the husband to his *curtesy,*as that an ancestor should be seised, to entitle the heir to the inheritance.

In the case referred to, the court held, that as to wild and uncultivated lands, the owner is deemed to be in possession, and that such possession was a sufficient seisin in the wife, to entitle the husband to be a tenant by the curtesy. We considered that the rule of law which, in *England,*required a seisin in fact, must be applied here, with such a limitation as the peculiar state of lands in this country required ; and that to consider the possession as following the ownership, in the case of wild and unimproved lands, was no departure from the spirit and substance of the ■ *English*law.

The principle of that decision governs this case; and, therefore, *David Austin*must he considered as having died seised of the premises ; and, consequently, all his children inherit in equal, shares, as tenants in common.

Judgment for the plaintiff, for one half of the premises.,