The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-04-21

0r>ae Los % the CITY Of Philadelphia.
(Trsn the Philsdslphia Bulletin, April 20


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Cyr>.s Los - the CITY OF FAllAAelpAla.
(Frsa the PhiIsdslphia Bulletin, April 70
". g.. CIEcUIr COURT.
yuDGs Gnm--Ths. following very important opinion in
The sass rsss.y tried in the Circuit Court in which the
heirs Il tbs late Stephen airard plaintiffs and the
city Il PhnAdSphis defendants was delivered BY Judge
0risr this srang The verdict against the city,
and the latter made application for trial The
Tor refusing the trial given at length
JoA. Clsras's Lsss:s U.s. TAe Cry Of PailadslpAia-
Argued April 1853. hessrs Olmstsad and Csdwaladsr
fer notion Aessrs. Cuyler and J. n. Reed contra.
Per CuriAn.-Ws have carefully reconsidered the in
structons given by the Court trial Of this case
tsrssd By great ingenuity and research and are now
thoroughly convinced Of the correctness of the pro-
4 the time they were advanced to the jury ~ W "''s
by win even though the tsstator has expressed clearly
his wish intention that they should, Is not because
such purchase Is revocation Of the will but because
viii IA in the nature Of . conveyance apporton
Tor must have the power 10 dispose at the time the will
executed Hence devise Of land though it operates
fxtxro can pass only such interest the
testator had ct the time, and continued have till
mis- deceese. Like grant OF all mans estate and in
ts.est without warranty or conyen.nt OF title It is no
ostoppel against the granter or his heir.
Thus, Q man having equitable estate ia land de-
wise It. and afterwards purchase the legal title the latter
viii descend to his heir but equity will not hold him
trustee for the devsee Of the equitable usufrucuary
estate On the contrary, the testator have but the
purchases the uitabl estate the devsee of the legal
estate will be held trustee for the heir the
extnguhment Of the after purchased title for the safe
Of ealargDg re DEVISE and the heir not estopped
from aveng that the dsviaee took just such estate
Of his viii. Nor the distinction taken BY the
learned counsel between the title estate avail to
edabisha difference in the present man who
mas neither possession right has estate in the
land Ee who has nothing can convey nothing. 1t is
true that void deed which conveys no estate may be
and0 yi
Of the extent Of his claim while his whole estate in the
Ia true, ALSO that by the ancient feudal doctrine of dis
essn person who has ousted the owner is treated
tenant Of the freehold dissesin was considered not
only - dispossesson Of the freehOlder but also
substitution Of the disseisin tenant the lord and
of the pares csre But, though of the
sequences OF actual disseisin continue to be law in
England yet Lord Mansheld admits that his day very
little was known Of seisin dsseisn but the In
tnoxn or applied in its anaCss as
with the statute Of limitations and adverse
ns ssd not .ss
away bis right Of entry But such has been the
law in Pennsylvania. (see overaeld vs. Christie,
sssis 4ss and Mccall ". Sssy Wasts ' ore in
possession without right merely by dsseisn, is
ferred," s. Mr., 177,) naked possession which may
rpen into title by the statute Of limitations But
session by title toing entry of the dssesee or own
or BY the feuda Ia of dsseisn, the heir of the dis
Is in .cu. possession With te and the
lost his right of entry, has but bare right Whether
release BY such dssesee after devise would be con-
erued to operate by of enlargement of the devsee
estate extinguishment Of that Of the dssesee We
need not inquire. No has been brought to
dce containing such doctrine. But role from dis
ssisee to disseisor is in fact the creation estate
being equivalent to entry and feoment and could not
But is unnecessary 70 trouble ourselves with th.s.
Anticipated and obscure doctrines for admitting all the
consequences claimed from them, they have no sppca
l. Because neither the trustees Mr. Grard under
their quit claim deed had actual seisin they had
neither possession nor right Of possession The title
and estate of the bank Invested by the commission
srs sass, under the Nichols lien and the purchasers
lad the title and the actual possession If the land
remains vacant the law cast them the possession.
The trustees not disseisors, was Girar1 en-
sseasd By them with livery Of seisin And though
feofment, yet where the barganer had neither posses
sion nor title no seisin by right by wrong his deed
gAnee.
Tho acts Of Mr. Girard in surveying these lands Civ
custer disseisin of the owners whether actual
ieg! possession mere entry upon another is no dis
An estate BY dsseisn got BY wrong and injury and
some act which the law regards equivalent in its Of
fects (See Doe Thompson COwen, 81
M. Girard had therefore seissn estate, free
bold by right or By wrong which release could ope
xsts BY way Of enlargement confirmation extinguish
ment His vendor having neither possession nor right
could convey nothing to him by his deed. At the time
the codicl executed Girard had no estate which
he could convey by grant or devise The conveyance
Subsequent to the codic conferred new and indepen
dsnt Nte-saye him sen and right TO- or estate in the
land Then for the first time he became Of the
iands, and had power to convey them.
The proposition which the counsel for the devisees
must substantate under the facts in this case be
tms-That man who has purchased pretended title to
aad where hs vendor had neither possession right
and who afterwards purchases from the true and
thus becomes seized and possessed escpped deny
that he claims by the pretended and worthless title that
this estoppel decends to his heir and that the good title
becomes merged in the bad and in order assist the
devisss - against the heir at law, equity will con-
srue the COED conveyance by which alone the grantee
Mss any seisen, estate title to be o extingush
ment Of an outstanding claim cloud the title This
doctrine cannot be supported analogy authority
The cited from Brooke's abr. tit mortman and
the book H. Henry ~, rs, give countenance to
such doctrine For where an abator or dsseisor aliens
in m0rtnan by license of the King and lord paramount
and the dsseisee releases the right the abbot must
be observed abbot being enee by yery of sesn
Of the dsesor is in possession Of the freehold by title
And the entry and eoment being by license sufficient
to pass the freehold to the abbot against the King and
lord paramount and all the world except him who hath
the right But his of entry being toed his release
which is of the bare right will be construed to operate
only extngushment of his right and not to the de-
struction of the estate to counterva entry and
feomeut BY license Hence the distinction taken where
the abbot himself dsseisor and the King lord releases
and confirms to him. and then the dssesee releases the
abbot In such case, it that the King lord
e.ter for this counterva entry and feoment and then
there is q mortman y
In this case the abbot being himself disseiso not in
By e livery Of seisin the entry Of the diseisee is
not tolled his release operates feofnent with livery
of sesin and confers a freehold or estate the
dissesee which, being without license, is forfeited
mortmain.
needs argument to show that these cases sought
out from the lumber garres of obsolete feuda laws viii
afford no analogy authority for the proposition which
defendants counsel compelled establish in order to
success IN the present The principles laid down
by the Supreme Court of mia in their construc
ton of this devise "a Rswle 1885, $780, conclusivey
rule the positions advanced BY defendants and leave
their case without founcation which to rest.
1t Is there decided. that 'the question whether after
purchased lands pass by previous devise does not de-
pend on the intention OF the testator That viii is
species Of conveyance and operates only regards the
dsposDg power and capacity Of the testator at the time
Of it's execution insomuch TO require his power
the estate to be perfect at the That the of dis
position must be complete in every respect at the per
Torrance Of it, That estator like any other grantor
cannot give what he has not and finally that subse
auen purchase giving the land to the testaor repug
Dant TO the import of the devise which weud give to
TO the deve and therefore to be intended TO have
been in subservience to the wilL''
These principles rule this conclusivey only
rA1Arda the fracf 10 whic fasfat had M