By the the statute of 11 Hen. VII. c. 20. it is also provided, *that "if a woman has any estate-tail jointly with her husband, [ 39 ] or only to herself, or to her use, in any lands or hereditaments of the inheritance or purchase of her husband, or given to the husband and wife in tail, by any of the ancestors of the husband, or by any other person seised to the use of the husband, or his ancestors, and shall hereafter, being sole, or with any other after-taken husband, discontinue, &c. the same, every such discontinuance shall be void, and it shall be lawful for every person to whom the interest, title, or inheritance, after the decease of the said woman, should appertain, to enter," &c. This statute is, for the most part, confined to conveyances be the husband, or his ancestor, for the advancement of the wife.(o) Hence, if land be settled by the ancestor of the wife, in consideration of the marriage, it is not within this act; for it shall be intended that the advancement of the wife was the principal cause of the gift. (p) But, where the conveyance is by a stranger, in consideration of the wife's fortune paid by ner father to the vendor, and other money paid by the husband, it is within the act.(g) So, if the conveyance be by the husband, or his an (0) Foster v. Pitfall, Cro. Eliz. 2. S. C. 1 Leon. 261. (p) Kynaston v. Lloyd, Cro. Jac. 624. ficient. Evans vs. The Commonwealth, (IN ERROR.) 4 Serg. & R. Rep. 272. & Vide Watson vs. Bailey, 1 Binn. Rep. 470. Thompson vs. Morrow, 5 Serg. & R. Rep. 289. But if the directions of the law are substantially complied with, it is not necessary that the prescribed form should be strictly pursued. M'Intire vs. Ward, 5 Binn. Rep. 301. Shaller & Al. Admrs. vs. Brand, 6 Binn. Rep. 435. Quere. Whether it is necessary that it should appear on the face of the certificate that the contents of the deed were made known to the wife. M'Intire vs. Ward, 5 Binn. Rep. 296. 301. Baron and feme have issue, and mortgage the lands of the feme, without acknowledging the same: the lands of the feme are bound only during the life of the husband. James vs. Lyon, 3 Yates' Rep. 471. Parol declarations of the wife that she executed the deed voluntarily, and if it was not sufficient, would execute and acknowledge it again, or do any other act to make the deed good, are inadmissible in evidence. Lessee of Watson & Wife vs. Baily & Al. 1 Binn. Rep. 470. "A Feme Covert, can't pass her legal title without a deed, accompanied "by privy examination, to evince that she does not do it under her hus-. "band's influence. And I presume a court of equity would require some "equivalent testimony of her freedom of mind in parting with her equita"ble title" (PENDLETON, PRESIDENT, delivering the Resolution of the Court,) Countz vs. Geiger, 1 Call's Rep. 167, cestor, in consideration of marriage, although it be joined with a money consideration, yet it is within the statute.(r) But no estate is within the meaning of this statute, unless it be for the jointure of the wife. Hence, although an estate devised by the husband to the wife in tail, with remainder over to a stranger in fee, be within the words, yet it is not within the meaning of the statute; for it shall not be intended to be for a jointure, where no inheritance is reserved to the hus[* 40] band or his heirs, and the meaning of the sta-*tute is, that the wife shall not prevent the lands descending to the heirs of the husband.(s) If the issue in special-tail, with reversion in fee expectant, levy a fine, and afterwards his mother, being tenant in tail within this act, make a lease for three lives (not warranted by the statute 32 Hen. VIH. c. 28.) living the issue; the conusee may enter. (1) But if the reversion in fee had been in another, the conusee could not enter, because he would have nothing but by estoppel; nor the heir, because he had concluded himself by the fine ;(u) nor the issue.(v) Formerly an alienation made by a sole corporation, as a bishop, or a dean, without the consent of the chapter, was a discontinuance; but since the disabling statutes, (w) which declare such alienations absolutely void, ab initio, no discontinuance can by such means be effected.(x) 2. BY DESCENT.(y)[1] (r) Kirkman v. Thomson, Cro. Jac. 474. (s) Foster v. Pitfall, Cro. Eliz. 2. S. C. 1 Leon. 261. (t) Brown's case, 3 Co. 50, (b) (u) Ward v. Walthew, Cro. Jac. 178. (v) Lincoln Coll. case, 3 Co. 61, (a). (w) 1 Eliz. c. 19. 13 Eliz. c. 10. (x) F. N. B. 194. [y] It is scarcely possible to suggest a case, in which the doctrine of descent cast can be now so applied, as to prevent a claim. ant from maintaining ejectment, as, from the principles of disseisin at election, he may always lay his demise in the time of the ancestor, and elect not to be disseissed; but a general account of the doctrine of descent cast is given here, in order to render this part of the subject complete. Vide Taylor, d. Atkins v. Horde, (Burr. 60.) where the history and [1] Where the first possessor died, and a descent was cast, and the infant heirs were driven from the actual possession by a public enemy, the possession was considered, by the equity of the jus postliminii, as revested in the heirs on the removal of the hostile force. Smith ex dem. Teller vs. Lorillard, 10 Johns. Rep. 338. Where a person dies possessed of land, it is prima facie evidence of title in his heirs by descent. Smith ex dem. Teller vs. Lorillard, 10 Johns. Rep. 355 "It has been decided in our Courts, that to constitute a Disscisin, upon "Descents, which take away entries, are, when any one, seised by principles of the doctrine of descent cast are most ably investigated by Lord Mansfield. Vide also William, d. Hughes, v. Thomas, (12 East. 141. [2] "which a descent may be cast, it must be commenced by wrong, and foun"ded on an ouster of the true owner. There must be a Disseisin in fact." Doe ex dem. Arden & Al. vs. Thompson, 5 Cow. Rep. 374. 6 Johns. Rep. 216. 7 Wheat. Rep. 107, “The Law will never construe a possession tortious unless from necessity. On the other hand, it will consider every possession lawful, the commencement and continuance of which, is not proved to be wrongful." Ricard vs. Williams & Al. 7 Wheat. Rep 107-(Per STORY, J. delivering the Opinion of the Court.) Sed Vide, Den ex dem. Clark vs. Lane, 1 Penn Rep. 417, Contra, (ut semble.) There cannot be an actual Ouster of a Reversion. Doe ex dem. Truscott vs. Elliot, 1 Barnew. & Ald. Rep. 86. In an Ejectment, the plaintiff must shew, and it is sufficient if he does shew, a right of entry, or in other words, a right of possession. If he prove 20 years possession, or the seisin of his ancestor, and a descent cast, it is sufficient prima facie, and unless defendant shew a better right the plaintiff must succeed. Hylton's Lessee vs. Brown, 1 Wash. Circ. Ct. Rep. 204. The Doctrine of "Descent cast" is abrogated by the "Revised Statutes" of New-York, Part 3, Chap. 4, Tit. 2, §15, (Vol. 2, p. 295.) "§ 15. The right of any person, to the possession of any real estate, "shall not be impaired or affected, by a descent being cast in consequence "of the death of any person in possession of such estate." In the case of Lessee of Rugge vs. Ellis (1 Bay's Rep. 111.) WATIES, J., delivering the Opinion of the Court, said; "This action [Ejectment] "has been allowed in this country, even where the right of entry has been "tolled by descent cast. It ought to be so-the rigid forms of ancient "real actions have long since been mouldering away, and giving place to others, more liberal and better calculated to answer the ends of justice." [2] "The distinction between a disseisin by election, as contradistinguish"ed from a disseisin in fact, was taken for the benefit of the owner of the "land, and to extend to him the easy and desirable remedy by assize, in"stead of the more tedious remedy by a writ of entry. Whenever an act "is done which of itself works an actual disseisin, it is still taken to be an "actual disseisin, as if a tenant for years, or at will, should enfeoff in fee. "On the other hand, those acts which are susceptible of being made dis"seisins by election are no disseisins till the election of the party makes "them so, as if a tenant at will, instead of making a feoffment in fee, "should only make a lease for years." Jackson ex dem. Van Alen vs. Rogers, 1 Johns. Cas. 36, 37. (Per KENT, J.) Ibid. 43. "Making a devise has been deemed an intimation of an election not to "be disseised. (Pously vs. Blackman, Palm. 205. Cro. Jac. 659.)"-1 Johns. Cas. 37, 44. 2 Caines' Cas. Er. 316. "The conveyance in fee of the tenant was a disseisin of the landlord, "'or not, at his election. For the sake of his remedy, he had a right to con"sider the grantee a disseisor. But he cannot constitute himself a dissei any means whatsoever of the inheritance of a corporeal here[ *41] ditament, dies, whereby the same descends to his heir: in this case, however feeble the right of the ancestor might be, the entry of any other person who claims title to the freehold is taken sor in spite of his landlord." Jackson ex dem. Van Schaick & Al. vs. Davis, 5 Cow. Rep. 134.—( Per SUTHERLAND, J. delivering the Opinion of the Court.) "It has also been argued at the bar, that a person who commits a dissei"sin cannot qualify his own wrong, but must be considered as a disseisor "in fee. This is generally true; but it is a rule introduced for the bene"fit of the disseisee, for the sake of electing his remedy. For if a man "enter into possession, under a supposition of a lawful limited right, as un"der a lease, which turns out to be void, or as a special occupant, where "he is not entitled so to claim, if he be a disseisor at all, it is only at the "election of the disseisee. (Com. Dig. Seisin. F. 2 & F. 3. 1 Roll. Abrid. "662. l. 45. Id. 661. l. 45.) There is nothing in the law which prevents "the disseisee from considering such a person a mere trespasser, at his "election; or which makes such an entry, under a mistake for a limited estate, a disseisin in fee absolutely, and, at all events, so that a descent cast "would toll the entry of the disseisee." Ricard vs. Williams, 7 Wheat. Rep. 107, (Per STORY, J. delivering the Opinion of the Court.)—& Vide, Proprictors of Kennebeck Purchase vs. Call. 1 Mass. Rep. 488. William, Lessee of Hughes & Ux. vs. Thomas, 12 East. Rep. 152. "Where there has been an actual disseisin, the disseisee cannot elect to consider himself as'not disseised. Davis & Ux. vs. Martin, 3 Munf. Rep. 285. In the case of Prescott & Al. vs. Nevers & Al. (4 Mason's Rep. 326, 329.) STORY, J. delivering the Opinion of the Court, said; "There is a "distinction between disseisins, which are in spite of the owner, and dis"seisins at his election. But the distinction often turns upon other princi"ples than those which have been stated. The owner cannot elect to con"sider himself disseised, where the act is not of such a nature as, in law, "affords a presumption of a disseisin. But where an act is done, which is "equivocal, and may be either a trespass or disseisin, according to the in"tent, there the law will not permit the wrongdoer to qualify his own wrong, and explain it to be a mere trespass, unless the owner elects so 86 to consider it." 16 In the case of Varick & Al. vs. Jackson ex dem. Eden & Al. IN ERROR, (2 Wend. Rep. 166.) WALWORTH, Chancellor, who delivered the unanimous Opinion of the Court, said; "But the principal question in this cause "is as to the validity of the devise of Medcef Eden the younger. Two "kinds of disseisin are mentioned in the English law books. The one was "a disseisin in fact, which actually changed and divested the seisin of the "original owner of the freehold, and deprived him of all right in relation "thereto, except the mere right of entry and of property; and which, un"der certain circumstances, was still further reduced to a mere right of ac"tion, the right of entry being lost." "By this species of disseisin the wrong doer acquired a fee simple, and "the actual seisin of the property, together with nearly all the rights of "the real owner; and all estates depending on the original seisin were divested or displaced. The other kind of disseisin was called disseisin by away; and he cannot recover possession against the heir by this summary method, but is driven to his action to gain a legal seisin of the estate. And this, first, because the heir comes to the estate by act of law, and not by his own act; the law, therefore, protects his title, and will not suffer his possession to be divested, till the claimant hath proved a better right. Secondly, because the heir may not suddenly know the true state of his title; and, therefore, the law, which is ever indulgent to heirs, takes away the entry of such claimant as neglected to enter on the ancestor, who was well able to defend his title; and leaves the "election, because the owner might elect to consider himself disseised for "the sake of the remedy by action of novel disseisin; but if he did not "elect to consider himself disseised, the freehold was not divested, but "still continued in him. (Blenden vs. Baugh, Cro. Car. 302.) "Disseisin in fact and disseisin by election have been so frequently con"founded, that, in examining the dicta of judges, it is sometimes difficult "to understand to which species of disseisin they allude, without refering "particularly to the facts of the case which they had under consideration "at the time such dicta were delivered. But by a careful examination of "the authorities, it will be found that there could be no disseisin in fact, ex"cept by the wrongful entry of a person claiming the freehold, and an ac"tual ouster or expulsion of the true owner, or by some other act which "was tantamount; such as a common law conveyance, with livery of sei"sin, by a person actually seised of an estate of freehold in the premises; "or some one lawfully in possession representing the freeholder, (1 Instit. 330, C. note 1;) or by a common recovery, in which there was a judg "ment for the freehold, and an actual delivery of seisin by the execution, or by levying a fine, which is an acknowledgment of a feoffment of re"cord. (2 Bl. Com. 348. Co. Litt. 330, C. note 1. Doe vs. Thompson, 5 Cowen's Rep. 371. Smith vs. Burtis, 6 Johns. Rep. 197.) 64 66 "In this case there was no expulsion of the tenant of the freehold, and "Medcef Eden the younger did no act which could possibly be construed "into an election to consider himself disseised. When Boyd took posses"sion of the premises in 1805, it was during the life of Joseph Eden, and " of course before the happening of the contingency which afterwards di"vested the estate acquired under the conveyances of the first of September, 1804, and the first of May, 1805. By those conveyances Boyd acquir"ed all the right of Joseph Eden, which was an estate in fee, subject, however, to be defeated by the death of Joseph without issue, during the "life-time of Medcef. His entry, therefore, was congeable, and divested "no estate. None of the conveyances executed during the life of Joseph "Eden were common law conveyances, with livery of seisin, and of course "divested no rights but those of the grantors. By the death of Joseph "Eden in 1813, the title vested in Medcef; and the holding over of the "person in possession, after the termination of his estate in the premises, "could not be a disseisin of the rightful owner. After that time, the rights "of the parties were not altered previous to the death of Medcef Eden. "There was then nothing to prevent the operation of his will, unless the "bare holding over of a tenant for life, after the determination of his es"tate, and claiming the fee, can have that effect." |