USA > Virginia > Virginia colonial decisions : the reports by Sir John Randolph and by Edward Barradall, of decisions of the general court of Virginia, 1728-1741, v. II > Part 18
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On the other Side were cited Dalt. Edit. 514. 3. Rep. 71. [176] Westbies Case Pop. 85. S. C. 1. Sid. 335. Hanmer a Warner & Keb. 224. S. C. & 1. Sal. 272. Watson a Sutton. And insisted there was no Difference whether the Prisoner was in Execution or not that an Assignment by Indenture was necessary in all Cases And so was the Opinion of the whole Court
Note. Sev'l were of Opinion the Action would not lie ag't either Sherif unless it appeared that the Escape was thro' the Sherifs Negligence.
APRIL COURT MDCCXXXVI
IVEY ag't FITZGERALD App'l from Nansem'd
The Case upon the Verdict is Morris Fitzgerald seised in Fee ' of 100 Acres of Land died so seised intestate & without Issue
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After his Death Henry Fitzgerald his Brother of the half Blood entered & died seised & the Premises decended to his Daughter the Deft. The Lessor of the Plt. is Son & Heir of Tho's Ivey who was Uncle a parte materna to Morris Fitzgerald But is not found that either the Lessor of the Plt. is or his Father was Heir at Law of Morris Fitzgerald
Upon this Verdict I conceive the Plt. cannot have a Judgment no Title appearing in his Lessor It is only found he is Son of the Uncle a parte materna but not that he is Heir at Law & unless he is so he has no Title If it should be argued that it ought to be presumed he is Heir I conceive the Court are to judge upon the Verdict as it is found & cannot add to or diminish from it Especially here in the Case of an Appeal the Court are to judge upon the Record Besides there is no great Reason to presume the Lessor is Heir from any Nearness of Relation it being very remote with Respect to the Succession in this Case for not only Brothers & Sisters of the whole Blood but the most distant Relation on the Fathers Side have a Right to succeed before him And perhaps there may be many such & then he is not Heir in Verity But admitting he should be so in Fact as it is not found the Court cannot intend it If it be considered how absurd it must appear to Posterity that a Man should have Judgment to recover Land without having any Title I hope no more need be sayed Only this that the Consequence will be only paying the Costs of this Suit the Plt. may bring another Action.
Admitting the Lessor is Heir his Entry is taken away and [177] so he cannot bring Ejectment but must resort to another Action to recover if he has any Title. The Case as to this Point is thus
Morris Fitzgerald dies seised the Defts. father (a Stranger) enters & dies seised the Premisses descend to the Deft. his Daughter & Heir The Defts. Father in this Case was an Abator The Difference betw. an Abator & Disseisor is this An Abator is one who between the Death of the Ancestor & Entry of the Heir interposes & enters Such an Entry is called an Entry by Abatement a Disseisor is one who wronfully puts out another that is actually seised The Defts. Father in this Case after the Death of M. Fitzgerald entring before the Entry of his Heir was as I sayed an Abator This Entry of the Defts. fath'r was undoubtedly a tortious Act & the Heir of M. Fitzgerald might
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at any Time have enter'd upon him during his Life but neglecting to do that and the Defts. Father dying, seised whereby the Freehold & Inheritance was cast upon the Deft. by Act in Law i.e. by Descent this Descent takes away the Entry of the Heir And he is put to his Action which in this Case if the Lessor is Heir must be a Writ of Cosinage. This is the express Doctrine of Littleton s. 385. in the Case of a Disseisin And Coke in his Com- ment 237. b. says there is the like Law of an Abatem't or In- trusion This was a Law introduced in Favour of Descents which are of high Estimation in Law & looked upon as the worthiest Means of coming to Lands In Respect whereof the Heir has divers Privileges and particularly this that he shall not be subject to be ousted by the Entry of anyone claiming Title but the Person so claiming is put to his Action The Reason given is because the Heir cannot by Intendment of Law suddenly know the true State of his Title It is an Institution of great Antiquity & so known & settled a Point I presume it will not bear any Sort of Contest
There is a Statute that perhaps may be objected 32. H. 8. 33. which enacts that in Case of Disseisin the Entry shall not be taken away by a Descent to the Heir of the Disseisor unless such Disseisor had five Years quiet Possession before his Death And in this Case it does not appear the Defts. Father was so long in quiet Possession And it is true it does not appear so upon the Verdict tho' the Fact I am told is so Now I might with as much Reason argue that this Fact ought to be presumed as the Plt. does that it ought to be presumed he is Heir but I shall make Use of no such Argument My Answer to the Objection is that the Statute does not extend to an Abatement as I have shewn our Case to be It speaks only of Disseisins And because it is in some Sort penal as it takes away a Privilege the Heir had at the Common Law the Statute is restrained to the express Words and is not taken by Equity or extended to any Case not within the Words Cokes Authority is [178] express 1. Inst. 238. a. that the Statute does not extend to an Abator or Intruder. So it is sayed in P1. 47. a. Winbish ag't Talbois Neither does it extend to the Feoffee or Donee of a Disseisor 1. Inst. 401. a. Note 65. but is restrained to the single Case mentioned in the Statute of a Disseisor dying seised This Statute then cannot affect this Case the Defts. Father being an Abator as I have' shewed At the Common Law such a descent as in this Case
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takes away Entry And consequently the Plts. Lessor could not bring an Ejectment but must resort to his real Action if he has any Title I pray the Judgment may be affirmed
Randolph for the Appellant (Plt.) sayed it must be intended the Plt. is Heir tho' not expressly found it appearing he is Cousin & the Deft. not setting up any Title as Heir nor shewing any other Person to be so which Point he sayed was adjudged in Cro. [sic.]
( Quære)
As to the Descent taking away the Entry of the Plt. he sayed no Advantage could be taken of that Matter upon this Verdict because all the Matter relating to it was not found That the Plt. might be under Age or other Disability & then the Descent would not take away his Entry He compared it to the Act of Limitation Of which he sayed no Man could take Advantage upon a Special Verdict unless the Verdict found that the Person to be bar'd was under no disability and that it was incumbent upon those who would take Advantage of the Act to shew that Matter for which he cited 1. Lutw. 804. Whally ag't Read & Hall
To which last Matter it was answered that it was true the Descent would not take away the Plts. Entry if he was under Disability but that not appearing ought not to be intended That it was a Rule a Disability should never be presumed See Plo. 176 The Parallel between a Descent that tolls Entry & the Act of Limitation was very just but the Law was quite other- wise than had been stated The Words of the Act of Limitation are " No Entry shall be made within 20 Years &c." Therefore a Possession of 20 Years prima facie must be a Bar in Ejectment If the Plt. will avoid the Bar he must shew he is within the Saving of the Act If the Act be pleaded to a Formedon the Ten't only says the Plt. did not prosecute his Writ within 20 Years after the Cause of Action accrued And this is certainly a good Bar unless the Plt. by Way of Replication shew something to avoid it The Pleading is the same in personal Actions By Parity of Reason the Law must be the same upon a Special Verdict [179] The Deft. is only to shew his Possession to the. Jury And it is sufficient for him if they find that Certainly it is the Plts. Business to shew his Disability if there is any in the Case & not the Deft. to shew he was under no Disability which being a Negative might be difficult perhaps impossible for him to prove to the Satisfaction of a Jury The Law is the same in
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Case of a Fine with Proclamations which is certainly a good Bar unless something is shewn' on the other Side to prevent it Plow 176. Whally & Reed if rightly understood makes nothing ag't this Argument The Court sayed no Advantage was to be taken of the Act of Limitation in Regard all the Matter touching it was not found From whence I collect that the Point of Limitation (which it appears was not the principal Point in Question) was not intended to be insisted on at the finding of the Verdict and so the Facts concerning it were not offered to the Jury The Judges knowing this declared no Advantage should be taken of it Because indeed it was a Sort of Trick
Judgment for the Appellant (Plt.) April 1736.
Note my Argument about the Descent seemed to be little understood
It was new to the Court as it seemeth
ROSE Extor BAGG ag't COOKE & al.
Debt on Bond ag't the Heir & Devisees of John Cooke The Defts plead 3 of them are under Age & pray the Parol may de- mur to which Plea the Plt. demurs And the Question is whether the Defts. ought to have their Age or not
This Action lay not at the Common Law but is given by the Statutes 3 & 4. W. & M. 13. & the 6. Geo. 2. the first enforced here by Act 12. Geo. 1. 3. Before the making of which if a Man devised his Land by Will & died indebted his Cred'rs had no Remedy ag't the Land but now an Action is given by that Statute against the Heir & Devisce jointly
I must observe the Defts in their Plea don't alledge any other Title to the Land than as Devisees or that the Deft. the Heir has any Land by Descent Therefore I could not counterplead as I must have done if they had sayed in their Plea the Lands de- scended but I have demurred Conceving the Law to be very clear that upon this Plea and as the Truth of this Case is the Defts. ought not to have their Age
I must first beg Leave to premise that wherever a Man takes an Estate from his Ancestor or any other he must take it by Descent or by Purchase By Descent when the Law casts the Inheritance upon him without any Act of his Ancestor By Purchase when the Estate is [180] given him by Deed or Will or however otherwise he comes to it if it be not by Descent Lit.
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s. 12. The Defts. here are not in by Descent None but the Heir could be so Therefore they must be in by Purchase The Truth is an Estate-tail is devised to the Heir by the Will And wherever the Heir has another Estate given him than he would have by the Law he is a Purchasor All this is so clear it cannot be disputed It is indeed admitted by the Plea the Defts. not alledging any other Title than under the Devise And conse- quently they must be in by Purchase
Now as to the Matter of Age prier [sic] by which if it is granted the Suit is to be suspended till the full Age of the Defts. it is an ancient Privilege of the Common Law introduced in Favour of Infants upon a Presumption that they have not Understanding to know their Estate or to maintain or defend their Right And therefore the Law will not hazard a Trial by which they may be forever bar'd of their Inheritance till their full Age This Privilege is peculiar to the Law of England The Civil Law is otherwise Indeed the Guardian by that Law has a much greater Power than by our Law he can even alien a Minors Estate in some Cases. 3. Bul. 143. 1. Domat. 166. 167.
At the Common Law in many real Actions where an Infant was Demandant and in all except a very few where he was Tenant he had his Age if he was in by Descent And the Court ex Officio ought to grant it & not suffer the Infant to plead if he would And if a Judgment was had ag't him by Default it was Error & is so still where he ought to have his Age 2. Danv. Error 98. However Age is now taken away by Statute in sev'l Actions 6. Rep. 4. b. Markats Case I agree that in Actions of Debt ag't the Heir the Deft. had his Age at the Common Law and so he has still because he can not be charged as Heir unless he is in by Descent but where he has some Land by purchase & some by Descent he shall answer as to that he has by Purchase & shall not have his Age 1. Danv. 263. 3. Now it may be sayed that as Devisces are made liable by the Statute in the same Manner that Heirs are at the Common Law. They too ought to have their Age as the Heir would But I conceive not because the Devisees are in by Purchase & not by Descent And where the Heir is in by Purchase he has not his Age as I have sayed Indeed it is a clear & settled Point of Law & was never yet disputed that where an Infant is in by Purchase he shall not have his Age The old Books are full of this Doctrine but real Actions having been much disused for above 100 years past we find little upon this
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Subject in the later Authorities Rolle has collected most of the Cases out of the year Books 3. H. 6. 46. is a Case in Point for there was a Devise to the Heir in tail And adjudged that as he was not in by [181] Descent but by the Will & so by Purchase he should not have his Age See 1. Danv. 263. 13. this Case abridged and read to pag. 1. And. 21. Waller ag't Lamb the Deft denied his Age because in [sic] as an Occupant & so quasi a Purchasor & not by Descent Carter 88. arguendo an Infant shall not have his Age where he is in by Purchase In Terms of the Law Age prier is defined to be where an Action is brought ag't an Infant for Lands he has by Descent there he must shew this Matter to the Court & pray that the Plea may stay And in praying Age the Ten't or Deft. always alledges he is in by De- scent as appears by the Precedents old Bast. 26. Fitz. Age 15. 58. 22. 105. From which the Inference would be strong if there were no express Authorities that unless the Deft. is in by Descent he shall not have his Age But there are express Authorities & therefore it will not admit of a Dispute Another strong Argu- ment may be drawn from the Silence of the Books & Reports since the making of the Stat 3 & 4. W. & M. upon this Subject We have not one Case and in a Course of 40 Years it is impossible but it must frequently have have happened that Infants Devisees have been sued upon this Statute Yet there is no Instance that ever they praied their Age which I think is a strong Proof that they are not intitled to it And because it is a clear & settled Point it has never been brought in Question
As to the Reasons why the Law allows this Privilege in Case of Descents only & not where an Infant is in by Purchase I pre- sume they may be these When an Infant comes to an Estate by Descent the Law casts the Inheritance upon him & he cannot by Intendment suddenly know the true State of his Estate in Respect of that Want of Knowledge the Law adjudges in him But when he is in by Purchase which in Judgment of Law is his own Act the Presumption of his Incapacity to know his Estate must cease The Law too is favourable to Descents as the worthiest Means of coming to an Estate And therefore divers Privileges are annexed to it A Descent in many Cases will take away the Entry of him that has Right Many other Instances there are of these Privileges annexed to Descents But whatever the Reasons may be the Law is so clear and express I apprehend it cannot be receded from in a judicial Determination
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Fr tot cur the Defts. shall not have their Age. Apr. 1736.
Note the Court seemed to think if the Heir had any Lands by Descent he ought to have shewed it in his Plea And then as to that the Parol ought to demur but not for the whole
The Devisees in that Case ought to answer & the Heir too as to the Land devised: See 1. Danv. 263. 3. So was Sir John Randolphs Opinion as I took it
To the Argument above may be added that the Statute has no [182] Saving to Infants till they come of Age And there is no Reason to presume the Makers intended them that Privilege
The Design & Policy of the Act was to give Creditors an ample Remedy to recover their Debts And consistently with that Design the Act must be construed the most extensively & beneficially for them The Statute does in some Sort devest the Lands out of the Devisees & vest it in the Cred'rs
Infants are bound as well as others by Acts of Parl't unless there is a saving Clause Or else why are such saving Clauses added Here is no saving Clause in the Statute Ergo their Right is bound as well as others
N B. When the Ten't in a real Action prays his Age he pleads by his Guardian that his Ancestor died seised & the Tenem'ts descended to him &c. Vid. my Rast. Ent. 26. Tit. Age 16. Which proves if he was in by Purchase he co'd not have his Age. Vid. supra Post 213.
BURGES a HACK
David Fox seised in Fee of the Premises in Question devises the same to his Son William & Daughter Elizabeth " To have & " to hold to my said son & dau'r their heirs & Assigns forever " to be equally divided between them at their respective ages "of 21. years or Day of Marriage of my said daughter which " shall first happen And in Case of the Mortality of either of "them before they shal accomplish their respective Ages or " the Day of Marriage of my said Daughter or without issue " of their Bodies lawfully begotten Then I give the whole to " the Survivor And in Case both die before they do accomplish " their respective Ages or without Issue of their or one of their "Bodies lawfully begotten Then I give & bequeath the sd. " Plantation to the right Heirs of me the sd. David Fox forever."
The sd. W'm & Eliz after the Death of the Testator enter'd &
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were seised And W'm died before 21. or the Marr. of Eliz & without Issue Eliz married Peter Hack & had Issue by him Nicholas her only Child who is dead without Issue & by his Will devised the Premes to the Deft. The Lessor of the Plt. is the Testors Heir [183] at Law viz the Grandaughter of David his eldest Son
The Question is Whether Eliz the surviving Devisee took an Estate-tail or a Fee-Simple contingent by the Will of the sd. David Fox If the first the Estate-tail is spent by the Death of Nicholas her Son without Issue And then the Lessor as the Testors Heir at Law has a good Title to the Reversion not by Force of the Limitation to the right Heirs for that is void in Point of Limitation but by Descent If Eliz took a Fee simple the Defts. have a good Title
The Solution of this Point depends upon the Construction of the Will I shall therefore propose the Consideration of the follow- ing Particulars as necessary & conducive to point out & shew the Testators Meaning the Law & Rule for Construction of Wills 1. What Estate the Devisees took by the first Part of the Devise " To have & to hold to my said Son & Daughter their Heirs "and Assigns forever &c." 2. How the Estate created by those Words is qualified by the succeeding Clause " And in Case of the Mortality of either of them " &c. 3. What Estate the Sur- vivor took by those Words " Then I give the whole to the Sur- vivor."4. How that Estate is enlarged or qualified by what follows "And in Case both die &c.
1. By the first Part of this Devise an absolute Estate in Fee would have vested in the Devisees without all Question But then 2. this Estate is qualified by the subsequent Words In Case of the Mortality &c. And I humbly conceive make it an Estate tail with cross Rem'r This is what I shall endeavour to demon- strate as well from the Words of the Will as the plain & apparent Intention of the Testator
I beg leave to premise that the Word Issue in a Will is equal to & of the same Import with Heirs of the Body This I pre- ,sume will not be denied being a known & settled Point Now a Devise to one & his Heirs And if he die without Heirs of his Body Rem'r over is clearly an Estate-tail for tho' the first Words to him & his Heirs carry a Fee simple the subsequent Clause if he die without Heirs of his Body shew what Heirs were intended in the first Part of the Devise viz Heirs of the Body The Law
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s the same if the Limitation be upon a dying without Issue be- cause as I sayed the Word Issue in a Will is of the same Force with Heirs of the Body The Authorities in Law as to this Point are very plentiful 1. Ro. A. 835. 1. 836. 7. 9. 839. 3. 4. Cro. Jac. 448. 695. Ro. 29. 1. Vern. 227. 229. 3. Mod. 106. 9. Rep. 128. Skin. 17. Raym. 425. Skin. 559. FitzG. 12. 25.
This is the Case of the first Part of our Devise which is to W'm & Eliz. & their Heirs And in Case of the Mortality of either of them before 21. &c. Or without Issue the whole to the Survivor. The Limitation over upon a dying without Issue makes an Estate [184] tail according to the Cases cited tho' by the first Words a Fee Simple passed for the Word Issue in the 2 Part of the Clause shews what Heirs were intended in the 1. Part viz. Heirs of the body
The Word Heirs in a Will without any Thing more is often taken to be Heirs of the Body where the Testators Intention is apparently so. A. having 2 Sons devises his Land to the youngest & his Heirs And if he die without Heirs then to the eldest This was adjudged an Estate tail in the youngest for Heirs here must necessarily be intended Heirs of the Body Otherwise the Rem'r over would be fruitless because the elder Brother was Heir general & would have taken as such without the Rem'r 1. Ro. A. 836. 5. 6. 2. Cro. 415. Webb a Herring 1. Sal. 233. Indeed it is a Kind of established Rule Where Lands are de- vised to one & his Heirs And if he dies without Heirs Rem'r over to another who is Heir gen'l to the 1. Devisee that it is an Estate tail in the 1. Devisee for, in such Case Heirs must be in- tended Heirs of the Body for the Reasons just now mentioned 3. Lev. 70. Br. 84. 2. Cro. 448. 1. Lut. 810. 813.
Now this is exactly our Case the Testator had only two Children W'm & Eliz. The Devisees by one Venter so each was Heir general to the other And the Rem'r being limited to the Survivor
According to the Rule in the Cases just cited Heirs in the first Part of the Devise must be intended Heirs of the Body without the Assistance of the succeeding Clause But when in that the Rem'r is limited upon a dying without Issue It seems to put the Matter beyond Dispute that Heirs in the first Part was intended Heirs of the Body Consequently that the Devisees took an Estate tail & nothing more Vid. Mo. 637.
There is a Difference and I suppose it will be insisted on on the other Side where a Rem'r is limited upon a dying without
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Issue generally & where it is to depend upon some contingent Circumstance as dying without Issue in the Life of another or within such Age In which Cases no Estate tail is created but only a Fee Simple contingent as are the Cases of Pell & Brown Cro. Ja. 590. 1. Ro. A. 835 2. S. C. &4. Hard. 148. Hall & Deering. 1. Sid. 148. Collenson ag't Wright And this Difference I admit but conceive it is not our Case for here the dying without Issue stands by itself & is not coupled with the Contingencies of dying within Age or before the Dau'rs Marriage but separate from them by the disjunctive Or If it had been In Case either of them die within Age and without Issue There perhaps it would be within the Distinction but here the Sentences are dis- joined & must be [185] taken distributively and then the dying without Issue has no Relation to or Dependance upon those Contingencies This cannot be thought meerly a Cavil about Words but the Particles make really a great Difference in the Sense for Instance if I promise to build a House & give 500£ I must do both but if the promise is to build a House or pay 500£ The doing of either will discharge the Promise And this Distinction I insist on in the Case at Bar is not of my own In- vention but we find it taken in the Books
Soulle & Gerrard Cro. El. 525. is a Case in Point which is a Devise to one & his Heirs And if he die within Age or without Issue Rem'r over the Devise had Issue & died within Age the Question is between the Rem'r man & the Issue & adjudged for the Issue And it is there sayed to be an Estate tail And so it must be in Consequence of that Judgment
This Case is exactly ours And I am much mistaken if there is any Authority to contradict it or any Book where the Case is denied to be Law I know very well many Cases may be shewn where the Limitation over is upon a dying within Age & without Issue that it has been adjudged a Fee Simp e con- tingent but that is not the Case here And upon the Distinction I have taken I conceive all the Books may be reconciled.
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