Martindale's Lessee v. Troop

The Court (all the judges present) were of opinion, the statute of limitations did not run against the issue in tail, and gave judgment on the special verdict for the plaintiff. The following argument on this case is extracted from an anonymous publication, printed in the year 1794. As the determination of the general court arises from the construction of the statute of 21 Jac. I. c. 16. it will be proper to exhibit that clause in the statute upon which the present question turns.

Sect. 1. “No person or persons shall at any time hereafter make any entry into any lands, tenements or here* ditaments, but within twenty years next after his or their right or title, which shall hereafter first descend or accrue to the same ; and in default thereof, such persons so not entering, and their heirs, shall be utterly excluded and disabled from such entry after to be made.” It tends much to the elucidation of a subject to have precise ideas of terms and expressions. Most of those in the law are artificial and technical. It is, therefore, necessary to be known, that the words “ right or title,” in the statute, mean a right or title of entry. (2 Salk. 422. pl. 7.) A very obvious reason for which is, that the statute of 21 Jac.

I. c. 16. operates by way of bar to the remedy. Every plaintiff, before he can support an ejectment, must have a right of entry. (Sunn. Eject. 10.) If the statute, therefore, bars him from his right of entry, it bars him also from his remedy, which is now usually an action of ejectment.

But it will be necessary to explain clearly what is meant by a right of entry. ²⁴⁹ A right of entry necessarily supposes an ouster of possession. (3 Bl. Comm. 167.) _ Ouster of possession is by five several ways, to wit, by abatement, intrusion, disseisin, discontinuance and de« forcement. An abatement is the entry of a stranger before the heir or devisee.

Intrusion is the entry of a stranger before the reversioner or remainderman. Disseisin is where a stranger actually turns the right owner out of possession. Discontinuance is by the alienation of a tenant in tail; and deforcement is where the entry of a stranger was originally lawful, but his detainer is unlawful. To these several species of injury by ouster, two remedies are annexed; first, by actual entry of the right owner, or, which has the same effect, continual claim; and, secondly, by action, (3 Bl.

Comm. 174.) “ This remedy by entry takes place in three only of the five species of ouster, viz. abatement, intrusion and disseisin: for as in these the original entry of the wrongdoer was unlawful, they may therefore be remedied by the mere entry of him who hath right. But upon a discontinuance or deforcement, the owner of the estate cannot enter, but is driven to his action; for herein the original entry being lawful, and thereby an apparent right of possession being gained, the law will not suffer that right to be overthrown by the mere act or entry of the claimant.” (3 Bl. Comm. 175.) But this remedy by actual entry must be pursued in a peaceable and easy manner, and not with force or strong hand; or else upon complaint made to a justice of the peace, restitution of possession will be awarded under the statutes of forcible entry; besides the remedy by actual entry, even in those cases where it would-be lawful, can seldom be effectual, and the preservation of the public peace requires that such modes of remedy should be discouraged. Hence, therefore, modern writers, when they ²⁵⁰ speak of a right of. entry, do not mean so much a right of actual entry, as a right of recovering possession by action.

This is confirmed by a very modern author. (2 Woodd. Lect. 170.) “ There may exist a right of possession to lands in one who is not the actual possessor of them ; and such is properly called a right of entry. By the old law, there were several ways of disseising a man of his freehold.

If it happened by most of these kinds, and no discontinuance was wrought, the disseisee might, during the life of the disseisor, in a peaceable manner, reenter, and recover his possession without a suit at law. From the refinements of modern civilization, and a useful regard to agriculture, it is not now allowable to ' enter and expel husbandmen from their farms, even without force. Still, however, a person in the circumstances I have described, is said to retain a right of entry; the principal present use of which distinction is to ascertain his right of bringing an action of ejectment, which otherwise he could not maintain.” Taking it as granted, then, that the expressions right of entry and right of action, are synonymous; and that the statute operates as a bar to the action or remedy, the question is, whether the statute in such case will bar a tenant in tail as"well as a tenant in fee-simple. There can be no doubt but that if the law has annexed inseparable incidents to any particular action, whoever brings that action must bring it subject to those incidents.

There can be no instance found in the books where a tenant in tail making use of the action of ejectment, is not subject to all the rules which the law has attached to that action in cases of a tenant in fee-simple. Every tenant in tail, therefore, when a plaintiif in ejectment, as well as every tenant in fee-simple, must have a right of entry when he commences his action. It will be proper here to state, in a short manner, the modes of acquiring an estate tail. ²⁵¹ The only methods of acquiring an estate in lands, are two, to wit, by descent or purchase. “ Descent, or hereditary succession, is the title whereby a man, on the death of his ancestor, acquires his estate by right of representation as his heir at law. An estate so descending to the heir, is in law called the inheritance.” (2 Bl.

Comm. 201.) “ The word purchase, in legal signification, includes every kind of title to such estate, except only hereditary transmission.” (2 Woodd. Lect. 250.) A tenant- in tail may derive his right or title, either by descent or purchase, as the case may be. (2 Bl. Comm. 201. 241.) If he takes by purchase, it is meant here to be contended, that he being the first tenant in tail to whom the right of entry “ first accrues,” he is equally within the statute as a tenant in fee-simple.

Again. If he takes the estate tail by descent, it is meant to be proved also, that if he is the first heir in tail to whom the right of entry first descends, he is equally within the statute. Also, (and which is the principal point in question,) that the heirs of such first tenant, or first heir, are bound by the default of such first tenant’s or first heir’s not entering. Let us examine, in the first place, then, how far such first tenant or heir in tail, without including his heirs or issue, may be deprived of his right of entry by the twenty years’ exclusive adverse possession of another, accounting the twenty years from the time such right of entry first accrues. “ An ejectment is a possessory remedy, and only competent where the lessor of the plaintiff may enter.

There-, fore it is always necessary for the plaintiff to show that this lessor had a right to enter, by proving a possession within twenty years, or accounting for the want of it, under some of the exceptions allowed by the statute. ²⁵² Twenty years’ adverse possession is a positive title to the defendant. It is not a bar to the action or remedy of the plaintiff only, but takes away his right of possession. Every plaintiff in ejectment must show a right of possession as well as of property.” (Burr. 119.) It is a principle of language as well as of law, that general expressions in a statute convey a general meaning. (2 Inst. 81.) The words in the statute of 21 fiac.

I. are, “ no person or persons shall make entry,” &c. Such a general expression must, no doubt, include tenants in tail as well as tenants in fee-simple. And there are no words of exception in the statute which place them in a situation, as to a right of entry, different from tenants in fee-simple. What was just cited also- as laid down by Lord Mans field, to wit, that “ every plaintiff in ejectment must show a right of possession, as well as of property,” is as general; and the words “ every plaintiff,” must necessarily include tenants in tail as well as tenants in fee-simple.

But if twenty years’ exclusive adverse possession takes away the plaintiff’s right of possession, and bars his action of ejectment, as, according to Lord Mansfield, it does,, such plaintiff, tenant in tail, cannot bring an ejectment, when he has lost his right of possession, which may be taken from him by the twenty years’ adverse possession, when such adverse possession has been solely against him. As these two first positions just before mentioned, are not, as I understand, denied, further reasoning upon them will be unnecessary. We have now got to the length that such first heir or tenant in tail, to whom a right of entry first accrues, or descends, may be barred of his right of entry by twenty years’ adverse possession. Let us next see, then, if the subsequent part of the same clause in the statute does not extend also to every successive heir in tail. “ And in default thereof, such ²⁵³ persons so not entering, and their heirs, shall be utterly excluded and disabled from such entry after to be made.” By this clause, not only the person who has lost his right of entry or possession is ever after disabled from making entry, but his heirs also. 1 hat the word heir is of general import, and will include heirs in fee-tail, as well as heirs in fee-simple, seems undeniable.

(2 Stra. 731. 2 Bl. Comm. 107.) The legislature having made use of the general expression in the statute, “ his heirs,” it may fairly be inferred that it was their intention to include both kinds of heirs. In corroboration of this, it may be observed, that it is a general rule in the doctrine of inheritances, that every person making title to lands by descent^ must show himself heir to the person last seised. This prevails with tenants in tail as well as tenants in fee-simple, and in real actions as well as in ejectments, but in different modes.

In real actions, the title must be set forth in the pleadings; in ejectments, it must be shown in the evidence. A formedon is a real action, and is the tenant in tail’s grand writ of right. But it is laid down by Lord Coke, in Buckmeré’s Case, (8 Co. 88. b.) that “ in a formedon in the descender, the demandant ought always to make himself son and heir, or cousin and heir to him who Was last seised by force of the entail, for a later seisin of any heir in tail after shall abate the writ.” (Hob. 51. 52. 2 Bac. Abr. 590.) Now, what is incumbent upon such plaintiff heir in tail, to show in his declaration in formedon, the same will be necessary for such plaintiff heir in tail, to show by evidence in the action of ejectment.

This has been decided in the case of Thorne v. Lord and others. (2 Bl. Rep. 1100.) Further. That every issue in tail, is to be considered as an heir, and not as a remainderman, (as was suggested,) is evident from what is laid down in Litt. 625.

If ²⁵⁴ tenant in tail enfeoff the donor, this is not any discon» tinuance, because (as Lord Coke observes in his commentary upon that section) the donor hath the reversion immediately expectant upon the estate of the donee, and the feoffment operates as a surrender; it passes no more than it lawfully may pass. But he adds, there be tenant in tail, the remainder in tail; if tenant in tail enfeofF him in the reversion in fee, this is a discontinuance, because there is a mesne estate. So in Seymour’s Case, (10. Co. 96. 1 Bulst. 162.) where there was a tenant in tail and a remainderman in tail, the tenant in tail bargained and sold his land, and after-wards levied a fine to the bargainee.

This fine was held to bind the issue, but not the remainderman, who might claim as soon as the issue of the first entail was extinct ; for the bargain and saleeonveyed no more than what the tenant in tail could lawfully grant, which was a descendible estate during his own life, and no estate of freehold passed by the fine, that being before conveyed by the bargain and sale; but yet the fine bound the issue, because wherever a fine is levied by a person to whom the lands were entailed, and whom the issue must mention in his formedon; such fine cuts off the entail and bars the issue, but does not touch or displace the remainder* (2 Bac. Abr. 531.) But if the remainderman in such case was to let the five years’ non-claim pass, he and his issue or heirs would be for ever barred by such fine, as we shall presently show. Again. That the issue in tail is not considered as a remainderman, appears also from the distinction of the different kinds of formedon.

A formedon in the descender is the peculiar action of the issue in tail, who claims under the first donee in tail. But a formedon in the remainder lies for him only, or his representative, who takes an estate tail in remainder, expressly limited upon some precedent estate, either for life or in tail, (3 Bl. Comm. 192.) and he takes immediately from the donor. ²⁵⁵ The issue takes the right of inheritance by descent; the remainderman by purchase. ^ _ This shows clearly, that the estate which the issue of the tenant in tail takes, is very distinct from a remainder in tail, and that although such heir in tail takes from the donor, per formant doni, yet he takes an estate of inheritance derived through his several intermediate ancestors from the original donee. He stands, then, within the plain meaning of the word heirs, in the statute, and as such, is barred by force of the statute, where his ancestor or ancestors, through whom he derives his title, have been twenty years out of possession.

In speaking of the action of formedon, an observation occurs here which ought not to be omitted. The statute of 21 Jac. I. c. 16. in the same section before quoted, enacts, that “ all writs of formedon shall be sued and taken within twenty years next after the title and cause of action first descended or fallen, and at no time after the said twenty years.” Now, a formedon, (as before observed,) is the peculiar action of a tenant in tail, and a bar to such action applies most commonly to such claimant only. It will, then, be difficult to assign a reason why the legislature, in enacting the statute of 21 Jac.

I. should by the same limitation of time, bar the tenant in tail in one kind of action, and not in another; in a formedon, and not in an ejectment. That the laches, or neglect of the ancestor, will affect the heir in tail, under a construction of the statute of 21 Jac. I. may be fairly inferred to have been the opinion of several eminent writers upon the subject. Mr. Runnington, in his Treatise on Ejectments, p. 14. after citing this branch of the statute of 21 Jac.

I. adds, “ therefore, where there hath been no possession for twenty years, either in the lessor of the plaintiff, or his ancestors, the plaintiff in this action will be nonsuited, unless he can account for the want of it under some of the exceptions allowed by the statute.” Again, in page ²⁵⁶ 99. “ The general rule in the issue in this action is, that whatsoever bars the right of entry is a bar to the plaintiff’s title ; therefore, the plaintiff must prove seisin within twenty years in himself or his ancestors.” So in page 106. “ The plaintiff must show that his lessor had a right to enter, by proving a possession within twenty years, in the lessor of the plaintiff, or his ancestors. What is the obvious inference from this, but that the plaintiff must show a possession, either in himself or his ancestors, within twenty years next preceding the commencement of the action ? And this appears from other authorities which may be here cited. Mr. Justice Butter., in his Nisi Prius, 102. after citing the statute, adds, “ therefore if the lessor of the plaintiff be not able to prove himself or his ancestors to have been in possession within twenty years before the action brought, he shall be nonsuited.” The same is recognised in 2 Esp. 134.

Now, the use to be made of this is, that if such heir must have recourse to the possession of his ancestor, where his own has been defective, to supply that deficiency and enable him to bring his action, and his ancestor is found never to have made entry, or had possession, such heir evidently suffers from the laches or neglect of his ancestor, and is bound by his ancestor’s default in not entering within the limited time. Further. It is laid down by Lord Mansfield, in the passage before cited, (1 Burr 119.) “ that twenty years’ adverse possession is a positive title to the defendant.” To apply this, let us suppose the following case: A. disseises B. tenant in tail of a tract of land, and remains ten years in exclusive adverse possession of such land, and then B. dies at the expiration of the ten years without having made entry upon A., C. is the next heir in tail, but omits to make any entry upon A. for ten years more, and after the expiration of the last ten years makes entry upon A. Now, if Cl’s entry is lawful, how can it with propriety ²⁵⁷ be said that A. has gained a positive title by such adverse possession. It will, perhaps, be said that such adverse possession must be against the heir in tail altogether, and not part of such adverse possession against his ancestor, such heir’s right of entry being per formam doni, and independent of such ancestor.

But it may be answered, that if every heir in tail has a distinct right of entry, independent of his ancestor, it is obvious that no defendant, by twenty years’ adverse possession against any one heir in tail, could gain a positive title; since it would be liable to be interrupted and destroyed by the right of entry in the next succeeding heir, and so toties quoties by every heir in succession j which would render his positive title a mere nullity. Nor can it be said that what Lord Mansfield here lays down, relates only to tenants in fee-simple. He is speaking generally of the nature of an action of ejectment, and the operation of the statute of limitations as relative thereto. It is well known that actions of ejectment are as often brought by tenants in tail as by tenants in fee-simple, and had there been any difference in this respect between the two, is it not probable that Lord Mansfield would, in this passage, have made the discrimination ?

Indeed the general silence of all the cases in the books, as to any difference subsisting between tenants in fee-simple and tenants in tail, from the operation of this part of the statute of 21 Jac. I. c. 16. is a strong argument to show that no such difference subsists ; for it cannot be denied but that it has generally been taken and received, at least by the lawyers of this state, beyond the time of memory, that this statute was a bar to tenants in tail as well as to tenants in fee-simple. This is proved by the surprise with which all ranks of people are impressed by this late decision of the court. Now it is a rule in the construction of statutes, that “ if a statute be penned in dubious terms, usage is a just rule to construe it by, and ²⁵⁸ the meaning of things spoken or written must be, as it kath constantly been received to be, by common acceptation.” (Vaugh, 169. 4 Bac.

Abr. 653.) But the usual construction of this statute has heretofore been, that it extended as well to tenants in tail as to tenants in fee-simple ; therefore, if the expressions are dubious, such ought still to be the construction of it. Much analogous reasoning may be drawn from the construction which has been given to the statute 4 Hen, VII. c. 24. relative to fines of lands. This statute (after directing how often a fine levied in the common pleas shall be read and proclaimed) enacts, “ sect. 3. and the said proclamations so had and made, the fine to be a final end, and conclude r • well privies as strangers to the same, except women covert, other than being parties to the said fine; and every person then being within age of twenty-one years, in prison or out of the realm, or not of whole mind at the time of the said fine levied, not? parties to such fine.” “ Sect. 4. And saving to every person or persons, and to their heirs, other than the parties in the said fine, such right, claim and interest, as they have to or in the said lands, tenements or other hereditaments, at the time of such fine engrossed, so that they pursue their title, claim or interest by way of action, or lawful entry, within five years next after the said proclamations had and made.” “ Sect. 5.

And also saving to all persons such action,. right, title, claim and interest, in or to the said lands, tenements or other hereditaments, as first shall grow, remain or descend, or come to them, after the said fine engrossed, and proclamation made by force of any gift made in the tail, or by any other cause or matter had and made before the said fine levied, so that they take their- action, or pursue their said right or title, according to the law, within five years next after such action, right, claim, title or interest to them accrued, descended, fallen or come.” ²⁵⁹ In order to show the application of this statute, it is to be observed, that the persons whose right is barred by the fine, are either parties, privies or strangers. The parties are either the cognisors or cognisees ; and that these are barred is plain, and admits of no doubt. The privies understood and intended by this act, are those who are privy not only in blood to the conusor, but likewise in estate and title to the land of which the fine was levied, that is, those who must necessarily mention the conusor, and convey themselves through him before they can make out their title to the estate. (2 Bac.

Abr. 530.) Strangers to a fine are all other persons in the world, except only parties and privies ; and these are also bound by a fine, unless within five years after proclamations made, they interpose their claim; provided they are under no legal impediments, and have then a present interest in the estate. The impediments are coverture, infancy, imprisonment, insanity and absence beyond sea; and these have five years allowed them to put in their claims after such impediments are removed. Persons also who have not st present, but a future interest only, as those in remainder or reversion, have five years allowed them to claim in, from the time that such right accrues, and if within that time, they neglect to claim, all persons whatsoever (that is, they and their heirs, or issue) are barred for ever. 2 Bl. Comm. 355, 356.

Hence, then, a manifest difference will arise when the -fine is levied by a tenant in tail to whom the issue is privy in blood and estate, and when by a disseisor, discontinuee, pr other person to whom the issue is a stranger. As in the first instance the issue' is not barred by the limitation óf time in the statute 4 Hen. VII. but by reason of his privity in blood and estate, and because he must necessarily mention such conusor in making out ²⁶⁰ Ms title, cases on that head are not so immediately ap« plicable to a construction of the statute of 21 Jac. I. But where the issue is a stranger to him who levies the. fine, and yet is adjudged to be barred by such fine, as such bar must arise solely from the laches or neglect of his ancestor in making claim «within the five years, cases to that purpose must furnish a suitable rule for the construction of the statute 21 Jac.

I. c. 16. The leading case on this subject seems to be that of Stowel v. Zouch, Plowd. 355. in which it was adjudged, that where a disseisor levied a fine with proclamations, and disseisee after three years, and within five years, died, his heir being within age, who after the five years expired, became of full age, and within a year after his full age entered, that his entry was not lawful, for the five years given by the statute of 4 Hen. VII .first attached in Ms ancestor, and in such case being once commenced, there shall not be any intermission or interruption of them, but their heir, though within age, must claim within those five years, or he shall be barred, and he shall not. have other five years after his full age. In the arguments of the judges in this case, great stress was laid upon the word first in the statute of 4 fien.

VII

That the right of entry first accruing or coming to the ancestor, after the disseisin and fine levied, and he not pursuing such his right within the limited time prescribed by the statute of 4 Hen. VII. to wit, within five years after the levying the fine, it was adjudged that his heir was bound by his laches or neglect, in not entering as he might. It is true, that the case of Stowel v. Zouch was the case of an heir in fee-simple; but in page 374. in the same case, that of an heir in tail was put: "If tenant in tail be disseised, and afterwards the disseisor levies a fine with proclamations, and five years pass without claim, and afterwards the tenant in tail dies, in this case Dyer and Catline said that the issue in tail is bound'for ²⁶¹ ever, for there the tenant in tail had the present right at the time the fine was levied, and the first saving comprised him and his heirs in tail, and inasmuch as they did not pursue their right within the five years according to the condition of the first saving, the tail is bound for ever.” It is true that Southcote and Weston,, Judges, were of a contrary opinion, for they said that every issue in tail shall have five years, for a new right is come to every one of them per formam, doni, which right (as they took it) the makers of the act intended to preserve, and to this purpose the words (by force of any gift in tail) were put in the second saving. But this opinion of theirs was utterly disallowed by the said chief justices ('Dyer and Cat-line,) who said “ that the word first, which ought to be added to the word descend, and then it would be, shall first descend, will not suffer every descent to have five years.” This opinion of Dyer and Catline has been adopted and confirmed in the case of Penystone v. Lyster; (Cro.

Eliz. 896. Noy, 46.) in which case, as it is reported in Cro. Eliz. a distinction is taken strongly illustrative of the present subject. “ It was resolved, that where tenant in tail bargained and sold lands in fee, the bargainee levies a fine with proclamations, five years pass in the life of the bargainor, and afterwards he dies, that this fine shall not bar the issue in tail; but that he shall have a new five years after the death of his father; for the father, by his bargain and sale, had given all his right, and against that he could not enter to avoid the fine; and then, when he died, his issue is the first to whom the right descended, wherefore he is within the saving of the statute. But if tenant in tail had been only disseised, and the disseisor had levied a fine, and the tenant in tail had suffered the five years to pass without claim, that shall bind his issue; for the tenant in tail had a right at the time of the fine levied, and, therefore, the issue is not within the saving.” It cannot be denied, but that the irresistible implica ²⁶² tion from this case is, that if the issue of the bargainor, to whom the right of entry in such case first accrues or descends, neglects to make claim or entry within the time limited, his issue are for ever barred; for the only reason that prevented the tenant in tail from being barred was, that he was estopped by his own bargain and sale from making entry, and then the issue of such bargainor was the first to whom that right accrued or descended ; but if such issue neglects, his issue will not be the first to whom the right accrues, and will, therefore, be barred, which is proved by the case put of the disseisor.

The same law is stated and confirmed in the case of fines. 3 Co. 87. and in 2 Bac. Abr. 532. The law is the same also with respect to the issue of a remainderman in tail, which was established in a case as far back as in the Tear Book of 19 Hen. VIII. 6. b. reported also in Dyer, 3.

This case appears to have been not long after the making the statute of 4 Hen. VII. c. 24. and before the explanatory statute of 32 Hen. VIII. c. 36. and therefore as a construction of the statute of 4 Hen. VII. has greater weight.

The case was, “ Tenant in tail levied a fine with proclamations of his land, and the five years passed in his lifetime, and after-wards he died. The question was, whether his issue should be barred by the fine or not? On account of the importance of the question, it was argued at Serjeants’’ Inn, before all the justices, three of whom thought that the issue was not barred, and that by the last saving the issue in tail is aided, for he is the first to whom the right descended after the fine levied. And although the father was party to the fine, yet the issue was neither privy nor party, for he claimed the land by the donor, and not by the donee, notwithstanding he must convey himself to the land by the father.

But five other justices (among whom were the respectable names of Fitzherberty Brooke and Moore) thought contrary. For ²⁶³ the intent of the makers of the statute was not, that he who claimed by the same title, which his ancestor, who levied the fine had, should be aided: for such issue in tail is privy to the fine levied by his ancestor, through whom he derives his descent, although he be not party to the fine $ and so such issue in tail shall be barred by the fine of his ancestor. And in this case it was agreed by all the justices, that if he who is a stranger to the fine, to whom a remainder in tail or other title first accrues after the fine levied, does not put in his claim within the five years afterwards, his issue is barred by this fine for ever.,? The principal point in this case is not altogether inapplicable.

The law is not now to be doubted, but that where a tenant in tail levies a fine with proclamations, such a fine will bar his issue for ever, and that too whether the five years have elapsed or not, which is solely by reason of his privity of blood and estate - Now if the issue in tail, although he claims per formant doni from the donor, is not so independent of his ancestor the donee, but that the act of such ancestor may defeat his title, and that too by a constructive privity of blood and estate, no just reason can be assigned why such issue shall not be liable also to be affected by the laches or neglect of such ancestor, to which his privity of blood and estate may with equal reason be said to have as much relative operation. However, it may be observed, that by the last resolution in this case in Dyer, (in which all the justices agreed,) the issue of the remainderman in tail was barred by the non-claim and laches of his ancestor, the remainderman. That part of the case, then, goes to show that an issue in tail may be barred by the laches or neglect of claim in his ancestor, under the statute of 4 Hen. VII. c. 24. considered as a statute of limitations.

So an issue in tail may with equal reason be barred by the laches or neglect of claim in his ancestor, under the statute 21 Jac. I. c. 16. ²⁶⁴ It is probable that in consequence of the doubt in this case, of the 19 Hen. VIII. that the statute of 32 Hen. VIII. c. 36. was not long afterwards made expressly “ for the exposition of the statute 4 Hen.

VII.” But as no doubt appears to have existed, whether the issue of a stranger to him who levied the fine, as for instance, the issue of a remainderman in tail, was barred by the five years’ non-claim of his ancestor under the statute of 4 Hen. VII. it may be inferred that the statute of 32 Hen. VIII. was not intended to remedy doubts which did not exist, and that strangers to him who levies a fine are barred solely by the limitation of time under the statute of 4 Hen.

VII

This idea is strengthened also, by attending to the preamble of the statute of 32 Hen. VIII. which speaks only of doubts relative to fines levied by tenants in tail, and not to fines levied by a disseisor, discontinuee, or other person to whom the issue is a stranger. In the former instance, the word privies was obscure and doubtful, and there was need of exposition; but in the latter instances, the five years’ limitation of time expressed in the savings of the statute of 4 Hen. VII. was plain and obvious.

And this is supported also by what is laid down in Hob. 333. that the savings in the statute of 4 Hen. VII. were intended only for strangers, and not for privies. As the case of Hunter v. Bourne, reported in Lutw. 779. Salk. 339. 422.

Com. 93. 124. was mentioned at the time of the determination of this case in the general court, it may be proper to take some notice of that case, which, as it appears from the special verdict in Lutwyche, was shortly thus : Thomas Gwillim, tenant in tail, levied a fine sur concessit for three lives, by virtue of which the conusees entered and were seised thereof; he after-wards levied another fine to one Thomas Marrett, to the use of him the said Thomas Gwillim in fee; he afterwards, by deed of bargain and sale, conveyed the same lands to a certain Thomas Payne and his heirsand afterwards, ²⁶⁵ to pass the reversion in fee, released the same to Thomas Payne and his heirs; and afterwards, on the 20th of June, 1663, he died, leaving Thomas Gwillim, his son and heir, who soon afterwards died, leaving Richard Gwillim, his son and heir, who was the lessor of the plaintiff. Thomas Payne, being seised of the'reversion aforesaid, on the 20th of September, 1661, died, leaving John Payne, his son and heir; John Payne, on the 28th September, 1661, died without issue, leaving Bourne, (the defendant,) and others, his coheirs of the reversion in fee; and afterwards, on the 17th September, 1693, the last survivor of the tenants for lives died; after whose decease, the defendant entered, upon whom the said Richard Gwillim entered, &c. And whether the entry of Richard was lawful or not was the question. As the statute 32 Hen.

VIII. c. 28. authorizes tenants in tail to make leases for three lives, the first fine levied by Thomas Gwillim was lawful, and would create a discontinuance for that period of the time only. (Co. Litt. 44. 333. a. 3 Bac. Abr. 318. 320.) Then the second fine, operating only upon the estate for lives vested in the conusees of the first fine, could not create a further discontinuance. This is evident by reflecting upon the principle of a discontinuance, which is effected only by an alienation of the right of possession, (2 Bac.

Abr. 88.) the statute de donis preserving the right of inheritance to the issue. Now the tenant in tail in this case, by the first fine, h,ad conveyed his right of possession so that he had nothing more to convey by the second fine. And further, it is a rule, that in order to discontinue an estate tail, it is necessary that the party discontinuing should be actually seised by force of the entail. (1 Roll.

Abr. 634. Cro. Eliz. 827. Cro.

Jac. 40. H. Bl. 269.) But he had already conveyed his seisin, or possession, to the conusees of the first fine, and not being actually seised by force of the entail, he could create no further discontinuance. The estate tail, then, still remained in him, ²⁶⁶ ready to take place on the expiration of the three lives. But he dying before that time, to wit, on the 20th June, 1663, and the last tenant for life, on the 17th September, 1693, a period of thirty years elapsed from the death of the tenant in tail, when the right of inheritance descended, to the expiration of the lease for lives, when the right of entry accrued.

By these means the issue was barred of his formedon, which was founded on the right of inheritance, but not of his ejectment, which was founded on his right of entry. It is evident, then, that this case does not contradict any of the principles before laid down. For Richard Gwillim, the issue in tail, being the first person to whom the right of entry “ first accrued or descended,” after the expiration for the lease for lives, which was a lawful estate, and the twenty years from the time that such right of entry first accrued not being elapsed, it was held that he was not barred from his entry and action of ejectment. But I think it may be fairly inferred, that had Richard Gwillim suffered the twenty years to pass without entry or action, both he and his issue would have been barred for ever from any subsequent right of entry.

For as it was held in this case, that the lapse of twenty' years from the time when the right of inheritance descended, by force of the statute, barred the issue from his remedy by the action of formedon, it would seem that the like lapse of twenty years from the time when the right of entry accrued, would also have barred the issue from his remedy by ejectment. Nor does the distinction taken in this case between the statutes of 4 Hen. VII. and 21 Jac.

I

(to wit, that the one is a bar to the right, the other to the remedy, Salk. 412.) militate against any former position herein before attempted to be established. If the bar under each statute is created by non-claim, and a default of entry within a prescribed period of time, as it is always under the statute of 21 Jac. I. and so also under the statute of 4 ²⁶⁷ Hen. VII. when it operates against strangers ; this their similitude of operation is sufficient to authorize a similitude of construction.

And if the limitation of time, by force of a peculiar set of expressions in the one statute, is held sufficient to bar both the right of inheritance and the right of possession, á fortiori ought the like limitation of time, differing only in the number of years, by force of the same or similar expressions in the other statute, to be held sufficient to bar the right of possession only. That the statute of 4 Hen. VII. has been looked upon as a statute of limitations, some modern authorities are not wanting to show. It is observed by Mr. Hargrave, in his notes on the first Institute, (1 Inst. 121. n. 1.) that the principal use of a fine is to shorten the usual time of limitation for asserting a right to lands.

Which opinion is recognised by Mr. Wooddeson in his 30th lecture, (2 Woodd. Lec. 313.) The case of Count Duroure v. Jones (4 Durnf. & East, 300.) is full also to this purpose. In which one principal question was, whether the issue in tail was bound by a fine levied by the feoffee or bargainee of a disseisor, such issue being an infant at the time it was levied, and having been in prison shortly after he came of age, so that five years had not elapsed since he came of age, free from the disability of imprisonment ? “ The counsel for the plaintiff contended, that the legislature intended by 4 Hen. VII. c. 24. that the parties included in the second branch of that statute, should have five years clear from every disability there mentioned, in which to prosecute their claim.

The question, he said, was touched upon in Stowel v. Lord Zouch; but as there were contradictory dicta there by the judges, who were divided in their opinions, the question still remained undecided. The counsel for the defendant insisted, that the five years began the instant he was of age, and continued ²⁶⁸ notwithstanding the imprisonment. That the time thus began and continued to run, was clear from the opinion of the majority of the judges in Stowel v. Lord Zouch, and from the case of Griggs v. Shane, in which the question was similar to the present, only that the subsequent disability was insanity, and not imprisonment, as in the first case. Erskine, in the last cited case, was to have shown cause against a nonsuit, but he said that the current of authorities, on looking into them, was so strong against him, that he would not pretend to argue the question.

That though Brown and Saunders had said in Plowden, 366. that in such a case the fine would not run, yet that all the authorities were the other way j. and so was the determination even in that case in Plow-den. The court said he was right in giving up the point, for it was too plain to be disputed.” Lord Kenyon. “ It is important to know how far the operation of the statute of fines extends, not only as it affects questions arising on that particular act, but as it involves in it questions arising on a very beneficial system of statutes, the statutes of limitations. For if we were to suffer any innovation on the established construction of fines, it might also endanger the uniform construction of the other statutes of limitations, which are of the greatest importance, inasmuch as they are statutes of repose. I confess I never heard it doubted, till the discussion of .this case, whether, when any of the statutes of limitations had begun to run, a subsequent disability would stop their running.

If the disability would have such an operation on the construction of those statutes, it would also on the others. I am very clearly of opinion on the words of the statute of fines, on the uniform construction of all the statutes of limitations, down to the present moment, and on the generally received opinion of the profession on the subject, that this question ought not now to be disturbed.” The other j udges concurred with his lordship, and there was judgment for the defendant. ²⁶⁹ Now here is a case in which an issue in tail was barred of his right by a statute of the short limitation of five years. Lord Kenyon decides expressly upon the ground of analogy to the other statutes of limitations. It is evident that he must have alluded principally to the statute of 21 Jac.

I. c. 16. Then, laying the subsequent disability of imprisonment out of the case, would not the plaintiff have been barred by the five years' non-claim ? Most certainly the case is, that this issue in tail, not entering within the five years, was barred, notwithstanding the disability of imprisonment. If he was barred by this statute as a statute of limitations for five years, it is only stretching the time to twenty years, and supposing that no fine was in the case, and that he had not entered within that period, it might then be asked, what reason can be offered why the statute of 21 Jac.

I. c. 16. would not have barred him also? The statute of 4 Hen. VII. in substance says, that the claimant must enter within twenty years after his title first accrues or descends. Do they not operate in a similar manner, and substantially work the same effect, differing only in the number of years ?

The limitation of five years is thought sufficient, when attended with the notoriety of a fine with proclamations. But a peaceable possession for twenty years may be justly thought equivalent to such notoriety. Nor can it be said that the heirs of Count Duroure, the issue in tail, can ever revive their claim. For construing both these statutes, as Lord Kenyon does, as part of one system of limitations, the word first, which is used in both, will have an equal and similar effect as to both.

But it has been before shown, that this word first prevents “ every descent from having the five years," under a construction of the statute of 4 Hen.

VII

It will of consequence also prevent “ every descent from having twenty years," under the statute of 21 Jac. I. Were it otherwise, it could not be ranked, as Lord Ken.yon expresses it, among the " statutes of repose." ²⁷⁰ Pinkney, for the appellant, (in the court of appeals.) The issue in tail, being barred of his entry by an adversaiy possession of twenty years, begun and completed since the descent to him of the lands entailed, dies, leaving issue inheritab le to the tail. Question. Is the entry, of the issue so left, into the lands entailed, taken away by the adversary possession against his ancestor ?

This question turns upon the true construction of the statute 21 Jac. I. c. 16. entitled “ An act for limitations of actions and for avoiding of suits in law.” The last branch of the first section of that statute (upon which this point immediately depends) enacts, “ That no person or persons that now hath any right or title of entry into manors, lands, tenements or hereditaments, now held from him or them, shall thereinto enter but within twenty years next after the end of this present session of parliament, or within twenty years next after any other title of entry accrued ; and that no person or persons shall, at any time hereafter, make any entry into any lands, tenements or hereditaments, but within twenty years next after his or their right or title of entry, which shall hereafter first descend or accrue to the same; and in default thereof, such persons so not entering, and their heirs, shall be utterly excluded and disabled from such entry after to be made.” Section 2. “ Provided nevertheless, that if any person or persons that is or shall be entitled to such writ or writs,” (formedon in descender, remainder and reverter mentioned in the first part of the section,) “ or that hath, or shall have, such right or title of entry, be, or shall be, at the time of the said right or title first descended, accrued, come or fallen, within the age of twenty-one years, &c. that then such person or persons, and his and their heir and heirs, shall or may, notwithstanding the said twenty years be expired, bring his action, or make his entry, as he might have done before this act j ²⁷¹ so as such person and persons, or his or their heir and heirs, shall, within ten years next after his and their full age, &c. take benefit and sue for the same, and at no time after the said ten years.” That I may be distinctly comprehended in the observations I am about to make upon this statute, I will begin by stating my conception of its scope and meaning, so' far as can be material to the present question. I take its obvious sense (relative to rights of entry in virtue of estates of inheritance) to be, that if the ancestor, having right of entry, and being free from disability, neglects to enter within the time prescribed, he and all the persons whatsoever claiming the same estate by descent as heirs, or (to state the proposition negatively) not coming in by a new title, shall be for ever barred, let the particular nature or qualities of the inheritance, and the course of descent incident to it, be what they may. Let us now see what is the nature of the doubt implied by the question proposed.

It is admitted, that the first issue in tail was himself barred of his entry by the express words of the statute, it being manifest, as to him, that he had omitted to make his entry within twenty years next after his right or title first descended or accrued. But it has been imagined, although it is not easy to understand upon what specific ground or intelligible principle, that the next heir in tail, succeeding to the estate per formam doni, shall not be prejudiced by the laches of his predecessor, in suffering the bar to be perfected against himself, that he shall be considered as paramount to, and wholly unaffected by that bar, as much so as a remainderman or other person claiming under a new title ; and that he shall not be said to lose his title of entry by force of the statute, but by another adverse possession of twenty years, commenced and completed against himself. The same doctrine is of course extended by those who indulge the following ²⁷² imagination to all succeeding issue, who are supposed, in infinitum, to come to the estate tail, without prejudice •' _ 1 _ J from any precedent operation of the statute against any or all of their ancestors seised of the tail. If it were not for the grave and respectable sanction which this motion has recently received, one would think it almost too plain for argument that it is at variance with the palpable intent of the legislature, by whom the statute was formed ; that it subverts not only without necessity, but wantonly and perversely, the fixed and invariable policy of the law, in reference to estates tail, and violates every rule which that policy has from time to time produced.

That it is discredited by every analogous act of parliament and judicial decision, from the passage of the statute de donis, to the present moment; that it is discountenanced in a way the most unequivocal and explicit, by other parts of this same statute; that it has no warrant whatsoever in the language of the particular provision to which it applied; that so far as judicial opinions, or those of learned men in the profession, whose labours are worthy of respect, approached the point, they are against this new conceit; and that if the most direct authorities cannot be vouched in opposition to it, it is only because it is too extravagant ever to have come into judgment, as res vexata in Westminster Hall. That this question may be viewed in all its aspects, I will endeavour to prove under separate heads, 1. That issue in tail, whose ancestor having a. right of entry by force of the tail, lost that right by reason of twenty years? adverse possession, is in virtue thereof barred of his entry, on succeeding to the same tail, by the words of the statute. 2. That he is likewise so barred by the intent of the statute, as ascertainable by every rule and means of interpretation applicable to the case.

And to the argument upon those separate heads, I ²⁷³ will subjoin a consideration of the few cases and dicta arising out of the Statute, that can be brought to bear at all upon the subject. 1. That the issue in tail is barred by the words of the statute. The material words (as has already been seen) are, “ That no person or persons shall, at any time hereafter, make any entry into any lands, tenements or hereditaments, but within twenty years next after his or their right or title which shall hereafter first descend or accrue to the same, and in default thereof, such persons so nos entering, and their heirs, shall be utterly excluded,” &c. The first inquiry which necessarily presents itself on a perusal of these words, with a view to a literal exposition of them, in reference to issue in tail, is, whether the issue succeeding to the estate, take by operation of law and by descent, or in other words, as heirs ?

This, I believe, might be safely assumed; but as although it may not be wholly denied, (for that would be too marked an absurdity,) it may notwithstanding be granted in a sense so inadequate as would take from the concession all its value, I will not venture to rest it upon mere assumption. On the contrary, such is the importance of obtaining precise and accurate ideas upon this preliminary point, and the topic connected with it, and of freeing it and them from all vague and indeterminate fancies, that I hope to be excused if I bestow upon it a more detailed consideration than its very familiar nature may at first appear to justify. It may be premised that there are only two ways in which by our law, and the law of England, a title to real property can be acquired ; descent and purchase. That issue in tail does not take by purchase, and that he therefore takes by descent, and, consequently, as heir ; for an heir is he to whom lands, tenements or hereditaments, by the act of God and right of blood, do descend of some estate of inheritance.

(Co. Litt. 7. b.) A defini ²⁷⁴ tion which expressly includes issue in tail, unless indeed it should be said that an estate tail is no inheritance at all. Vide 2 Bl. Com. 106. An estate tail, we are told by Littleton, derives its origin from, and is a mere modification of, the fee conditional at the common law.

Fee conditional was where lands were to one, and his lineal descendants generally, or to his male descendants only, 'in exclusion of females, or vice versa, or to his descendants by a particular wife, &c. Hargrave & Butler’s Co. Litt. 191. a. (note.) “ The condition from which those estates took their appellation, did not prevent the fee from vesting in the donee immediately upon the gift; it only authorized the donor to re-enter if the party had not issue, or if, having issue, it afterwards failed, and neither the donee nor the issue aliened.' Upon this principle it was considered to suspend the power of alienation. But on the birth of issue, the party had the same power of alienation over the fee conditional as he had over an absolute one.

The statute de donis took away this power. It did not, however, affect the estate of the donee in any other respect; the consequence of this was, that a tenant in tail was as much seised of the inheritance after the statute de donis, as tenant in fee-simple-conditional was before it. Thus, therefore, an estate of inheritance remains in the donee; but a particular description of heirs only being entitled to take under it, it received the appellation of an estate tail. Thus the fee was preserved to the issue, while there was issue to take it, and to the donor when the issue failed.” (Vide also note under 326. b. 327. a. b.) It is plain, then, that an estate tail, as modelled by the statute de donis, was neither more nor less than the fee conditional at the common law, with the power of alienation supposed to exist on the birth of issue, disaffirmed or taken away.

In every other view, the estate of a donee in tail remained the same, equal in «quantity- ²⁷⁵ and attributes. The course of descent was marked out and regulated by a gift in fee conditional, precisely as it now is by a gift in tail. The operation of the statute de donis was simply to secure the transmission of the estate in the course marked out and regulated, against the power which the donee had been held to possess, of intercepting it by alienation. The statute de donis rendered the fee conditional unalienable, but it did not, therefore, make it the less an inheritance, or change the quality in which the issue succeeded to the title. .Where indeed a new series of heirs was substituted to take the land, on failure of the series to which it was first limited, (which could not have been done at the common law,) the estate thus vested in the second series was a new estate distinct from the former; an estate by purchase; a remainder to which the substituted series did not come by any hereditary claim, or as heirs to the last taker in the former series, but as new purchasers under the original donor.

Harg. Co. Litt. 326, 327. But so long as the first series remained, each person in the line of it took completely as heir to the last taker, and to the donee as the stock or terminus, designated by the gift, exactly as he would have done before the statute; and the protection afforded by the statute to the regular passage of the estate along the path of descent prescribed, fortified the hereditary title, instead of altering its character. Hargrave, in his observations on the rule in Shelly’s Case, published in his Law Tracts, (page 572.) has the ■following remarks : “ Though succession to fee-simple, 'and the succession to fee-tail, are both equally considered as titled by legal succession, that is, by descent, the difference being only that the inheritance in fee existed before the statute de donis, and that the inheritance in tail was a modification of the former, by that statute, in order in some degree to revive the ancient favour .to ²⁷⁶ the perpetuity of entails,” &c.

And he adds, speaking ^ ru^e *n Shelly's Case, “ In thus equally guarding descent in fee-simple and fee-tail, from the effect of purchase, the rule only conforms to the consideration of them by our law in other respects; for it is certain, that the her itage by succession in tail is construed to come in by operation of law, and by. descent, as well as the heir taking by succession in fee-simple j and this similarity holds not only as to the privileges of descent, such as tolling of entries, but also as to other consequences so far as is consistent with the unalienable quality of an estate tail, without the aid of a fine or recovery,” &c. It should be insisted, that the issue in tail does not take as' heir in the same manner as an heir in fee, because, by the form of the gift,, the succession to the esr tate, or the series of holders, is pointed out and fixed in. a way different from the ordinary succession in fee-simple ; it may be further urged that this was equally true, not only of a fee conditional at the common law to which the issue did incontrovertibly succeed wholly as heirs, but also of a genuine fee-simple, a? it was originally known to the law of England. The leading canon of descent in fee-simple was exactly that by which, since the statute de donis, an estate tail general, is characterized and governed. The rule (as given by Sir William Blackstone, 2 Bl.

Com. 221.) was, nomen hceredis in prima investitura expressum, tan- turn, ad descendentes ex corpore primi vasalli extenditur; et non ad collaterales nisi ex corpore primi vasalli sive stipitis descendant. Or, as the rule is elsewhere given to the same effect, frater fratri sine legitimo hcerede defuncto, in beneficio quod eorumpatris fuit, succedat: sinautemunus e fratribus a domino feudum acceperit eo defuncto sine legitimo hcerede frater ejus in feudum non succedit. (Same page of Bl. Com.) And even now this rule retains its place among the canons of descent in fee, although an expedient has ²⁷⁷ long since been invented to relax and almost destroy its original effect, by means of a fiction that the feudum no-Hum shall be considered as a feud of indefinite antiquity; the first purchaser is at present merely imaginary, and of course the collaterals of the actual purchaser are, by this contrivance, let in in definitum, without appearing, however, to impeach the rule that none but the lineal descendants of the first feudatory shall be inheritable to the land.

(1 Bl. Tracts, p. 40. 188. 200, 201, 202, 203. 216, 217. In a word, an estate tail general is the genuine feudum novum of the ancient law, so far as regards the line of heirs through which it has to pass; and it would be ridiculous to maintain that the successor to the feudum novum did not come to the feud by descent alone, as the heir of the first feudatory and the last taker, merely because no collateral, not issuing from the body of the first feudatory, was inheritable to the fief. That the issue in tail has always been subjected by the law to every consequence of heirship, so far as was consistent with the unalterable quality of his estate arising from the positive provisions of the statute de donis, (as asserted by Hargrave,) appears from a multitude of instances, some of which it may not be improper to particularize.

That he has not been subjected to all the consequences of the hereditary succession by means of which he receives the estate tail, does not arise from any mixture of purchase in the nature of that succession. It proceeds whollyfrom the unalienable character stamped upon the estate to which he succeeds by the statute de donis, or, in other words, from the express negative placed by that statute on the potestas alienandi of tenant in fee conditional. By the positive provisions of the statute de donis, the heir in tail could not be deprived of the inheritance by the fine, feoffment, or other alienation of his ancestor, ²⁷⁸ nor c°uld he consistently with it be bound by any other act of his ancestor, (not being an alienation in its form.') , , , . , r , so as that such act should interrupt the passage oi the fee in the line of descent ascertained by the gift, and thus be equivalent to an alienation. Thus the lineal warranty of tenant in tail, inserted in a release, did not rebut the issue on whom it descended in formedon, for if it had, it would have been tantamount to an alienation, and a plain evasion of the statute.

(Co. Litt. 375. a.) Andalthough a bar by judgment in formedon against tenant in tail, did, by reason of the privity, bar the issue, yet if such judgment was merely covinous, although upon verdict or demurrer, the issue was not barred ; for this would have been in substance to defeat the statute de donis and to enable tenants in tail to alien by a trick. Vide Co. Litt. 393. b. 10 Rep. 38. 6 Rep. 7. b. The exemption from forfeiture for treason, so as to prejudice the issue, stood upon the same ground, as did also the exemption from elegit and extent for more than the life of the tenant in tail. In each of the foregoing cases, and in every other that it is possible to produce, where’ the issue in tail has been adjudged to hold against the act of his ancestor, or the consequences of such an act, the unalienable quality of the estate tail in virtue of the statute de donis, and not any supposed difference between the hereditary character of an heir in tail and heir in fee, is exclusively the foundation of the decision; and accordingly the acts of tenants in tail have always been allowed their full effect against the issue in every other view than as a direct or indirect alienation of the estate.

Thus, though a lineal warranty did not rebut the issue on whom it descended in formedon, yet it barfed his entry. The reason undoubtedly was, that the transmission of the inheritance was not' cut off by merely allowing the entry to be tolled, and the tail to be discontinued, and, consequently, that the statute de donis was not at all ²⁷⁹ infringed by conceding this limited operation to the \tat ranty. The tolling an entry was no alienation nor equivalent to one, for the'issue could still bring formedon, and be restored notwithstanding the loss of his right of entry. Again, the feoffment of tenant in tail left the title to the inheritance untouched, and the descent of the tail in the order prescribed unimpeached j but it took away the entry of the issue in infinitum, until the tail should be recontinued by the droitural action of formedon in the descender.

The same effect was worked by every species of conveyance operating by transmutation of the possession; (as a fine come ceo, &c. j) and yet if tenant in tail had not been considered from the earliest times as completely seised of the inheritance, and the issue in tail of course as coming in solely by descent, previously as a tenant and heir in fee-simple, such a conveyance for more than the life of tenant in tail would, instead of discontinuing the tail and barring the entry of the issue and of those in remainder and reversion, have been a forfeiture of the estate, and would have enabled the next taker immediately to enter for it. (Vide Hang. Co. Litt. (note,) 191.) It is further to be remarked, that even the laches of tenant in tail might bar the entry of the issue, although they could not affect his right so as to bar his formedon Thus, if any ancestor seised of the tail were disseised, and died after a descent cast without entry or claim, the issue in infinitum lost their entry, and were put to their formedon.

The consequences of the hereditary relation between tenant and issue in tail, were not only thus allowed against the issue as far as it was. possible to extend them without direct violence to the statute de donis, but they were, on the other hand, invariably sustained in his favour where it was practicable to do so, without a departure from some general rule of law. Thus, if a man were disseised, and the disseisor gave the same land to another in tail, and tenant in tail had ²⁸⁰ issue, and died seised of such estate, and the issue in tail enter by the descent, the disseisee was put to his writ of entry sur disseisin, &c. (Litt. s. 386.) So in the case of a feoffment by tenant in tail within age, the issue inheritable to the tail, although not heir general, could avoid it by entry merely without suit, upon the footing of his being privy in blood and coming to the title by descent; whereas mere privies in estate could not in general avoid it at all. If there be tenant in tail male, who has issue two sons, and the eldest has issue a daughter, and tenant in tail dies, and the eldest son within age make a feoffment and die without issue male, the younger is special heir per formam doni, and shall avoid his mother’s feoffment, although he be not heir general, because he is privy in blood, and has the land by descent.

(8 Rep. 43. Vide also 3 Rep. 90. a. 87.) An issue in tail could always bring error to reverse his ancestor’s fine, or recovery on a judgment against him in a real action affecting the estate. Thus where tenant in tail female levied a fine, the issue female alone, by reason of the privity in blood and estate, was held entitled to reverse it and not her brother, who was the heir general. Dyer, 90. a.

That issue in tail could not take advantage of a condition broken, unless he was also heir general, arose from the settled maxim, that none but the heir at the common law could do so ; but in this respect he was in no worse plight than the heir in borough English, who was, notwithstanding, recognised as taking by descent as completely as the heir general. Having proceeded thus far, it is now proper to notice, with some particularity, a loose saying advanced with, little accuracy of thought, which I believe has contributed in a great degree to bewilder this and every other branch of the present question, I allude to the ²⁸¹ common place allegation, that issue in tail takes per formam doni, paramount his ancestor. ^This allegation, in all the shapes into which it has been, or can be, moulded, may be seen at large in Pollex-Jen’s argument, as counsel in Lord Darby’s Case, hereafter mentioned. Of those who may rely on it on the present occasion, I would desire to know what specific meaning they annex to it as applicable to this case. Do they mean to say that issue in tail takes by purchase ?

If I am told they do not intend by it any such absurdity, (as Pollexfen undoubtedly did not,) I answer, that they are of course driven to admit that he takes by descent as heir, since there is no alternative but to maintain that he takes in one of these two modes and capacities; the law acknowledging no compound of both, nor any medium between them. If I am told again, that no more is meant by this assertion than that issue in tail takes by descent in virtue of, and according to, the original donation, as one of a particular series of heirs to which the inheritance is confined by it, and that his hereditary claim under that gift has been protected from the alienation of his ancestor by a certain statute passed many centuries ago, and thus made paramount to such ancestor and his acts, I answer, that I am not bound to oppose any thing to all this, because it does not in any degree interfere with my argument, for it grants all that I wish in this place to establish, that is, that issue in tail takes by descent alone as heir. It is of no possible importance to the question, in the form in which it now presents itself, how or why he takes as. heir, provided he does so take. It is of no importance that his hereditary title is referrible to the form of the gift, giving birth to the estate to which he succeeds, or that it was made by the statute de donis available against his ancestor’s acts ; since it is still manifest, that, it is entirely an hereditary title, with no mixture of any' ²⁸² other quality, and that his succession to the estate by force of it is that of an heir only.

It may not be amiss here to suggest, that this idea of the heir talcing per formant doni paramount the ancestor, is müch older than the statute de donis, and formed an axiom in the English law of inheritances long before that statute was thought of. That it governed every feudal grant by which an inheritance was created, will be seen by a perusal of Butler's masterly and learned note, already in part quoted. It is there said, and trúly said, that it was peculiar to feudal inheritances, that the heir was held to take every thing from the donor, and nothing from the donee; and it was in consequence of this peculiarity, that the ancestor could no more disinherit his successor to the fief, without his concurrence, than could a donee in tail in the reign of Edward I. The power of alienation to the disherison of the heir, afterwards introduced, took away the consequences of this principle to a certain extent, but did not destroy the principle itself; for still, if no alienation was made, the title of the heir was exactly such as it was before, a title by descent, but deriving its being from the first donation. But from the effects of this power, as gradually enlarged for commercial purposes, the principle has at length almost ceased to be discernible, in the case of a fee-simple, from any consequences produced by it.

Will any reasonable man, however, contend that during the time that this principle remained in its primitive strength, so as to operate in fee-simple, as the statute de donis has since done in estates tail, the successors to the feud did not come to it completely as heirs. Will it be said that these successors did not take then previously, in the same character in which they would take now, simply because their ancestor could not (as he can at this time) prevent their taking at all; or because they were not then liable to be disinherited, they would ²⁸³ now, either by the voluntary or involuntary alienation of their predecessor in the feud ? It is inconceivable that the inalienability of any inheritance should make it less an inheritance than it otherwise would be, when such is known to have been once the case of all inheritances whatever, without having deprived them in any degree of that character. It is inconceivable, that because heirs in tail have been attempted to be sheltered, as all heirs were once sheltered, from the ancestor’s control over the estate, super-induced by modern innovations, they are therefore either heirs no longer, or at least only to a half way and undefined extent.

In a word, the character of heirship has nothing to do, and never had, in the sera of law, with the ancestor’s power of alienation. It never depended upon it in any shape, or to any degree. It existed before that power was recognised precisely as it exists now, except only that it was then universally indefeasible by the ancestor; whereas now, in the case of fee-simple, it may be annihilated by him at his pleasure. But,' even supposing that the existence or non-existence