Maryland case law › Mayson's Lessee v. Sexton

Mayson's Lessee v. Sexton

1 Md. 275 (1768) · Court of Appeals of Maryland
Court of Appeals of MarylandDisposition: Other✓ Good law
HoldingThis case concerns whether a bargain and sale with warranty by a tenant in tail operates as a discontinuance that tolls the entry of the issue in tail, thereby barring the issue from entering and forcing him to bring a formedon.

Bargain and sale with warranty is no discontinuance to him in remainder. 3 Lev. 16. 10 Co. 65. 95. Warranty in this case will not bar, because the particular estate to which it is annexed determines upon the death of the tenant in tail without issue. Co. Litt. 329. Vide 2 Burr. 707.

Bro. Diss. de Poss. pi. 20. 27. Co. Litt. 327. vide 601. 3 Co. 85. Latch. 64. 72.

A discontinuance takes away entry. Co. Litt. 327. 339. 325. If an intruder dies seised, entry is tolled. Co. Litt. 238.

Sincere. Whether warranty can toll entry at this day? Whether the reason of the law is not changed, as the warranty may be given in evidence in ejectment, and is not lost by entry. 10 Co. 95. Salk. 244.

A descent cast when the heir, who hath right of entry, is within age, shall not toll the right of entry; but contra, If the infant had no right of entry at the time of the descent cast. Co. Litt. 245. b. 3 Bac. Abr. tit. Infant.

See Co. Litt. 327. 329. why a warranty binds. It is not the warranty alone which makes the discontinuance; but the warranty and descent. Co. Litt. 329. A warranty has the effect of a discontinuance in taking away entry.

Co. Litt. 339. 279 A warranty will work the effect of a discontinuance, in snany instances, where a mere deed of feoffment will not. Co. Litt. 340. 391. sect. 743. If tenant in tail makes a lease for the life of the lessee, and afterwards bargains and sells the reversion in fee, it is a discontinuance. Co. ■Litt. 333.

By a bargain and sale by tenant in tail, a base fee passes determinable upon the entry of the issue in tail. Salk. 619. 1 Saund. 260. 2 Raym. 778. Comyns, 110. Gilb.

Ten,. 119, 120. Objection. Bargain and sale by tenant in tail, conveys no more than the tenant may lawfully convey, which is for the life only of the tenant in tail, and the warranty in this case, extends only to the estate conveyed, which being determined upon the death of the tenant in tail, the issue may enter, no warranty descending. 10 Co. 96. Seymour1 s case.

Answer. All grants, confirmations, releases, &c. by tenant in tail, convey only what he may lawfully convey. Co. Litt. 330. sect. 600.606,607, 608. comment on section 610. 612, 613. and yet when a warranty is annexed to these conveyances, it works a discontinuance. Co. Litt. 339, 340. 329. sect. 640, 641. 601.

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