ing the demurrer, and dismissing the bill, is correct, and ought to be affirmed.

There being an equal division of the court, it follows, according to rule, that the decree is affirmed.

Decided, April 1st, 1816.

1. A testator

bequeathed

to

The Commonwealth against Selden.

The Same against Seddon.

THESE were two cases of appeals from judgments of the

his brothers Da. District Court of Fredericksburg, in which the questions were vid and James, precisely the same, depending on special verdicts similar in

(who were a

liens.) "to be every thing material.

"equally divid

"ed

" ney

between

In each case, a monstrans de droit was filed by the appellee "them, the mo- to an inquisition of escheat returned to the District Court, the arising from the sale object of which inquisition was to vest in the Commonwealth a "of his land and right to the lands of the Rev. Robert Buchan deceased, on a "other property, "and from the supposed failure of heirs. The special verdict in Selden's case "him at the was as follows:-"We find that Robert Buchan, a citizen of "time of his "the Commonwealth of Virginia, was seized and possessed of "death; "as they resid." the lands in the inquisition and monstrans de droit mention"ed in Greated, in his demesne as of fee, on the 12th day of July, 1803, "his will that" and, being so seized and possessed, did, on the same day and

"debts due to

and,

"Britain, it was

"his executors

"make remit-" year, make his last will and testament, in writing, in these "tances to them words," &c. The clause on which the controversy turned "in bills of "exchange, or was the following:-"I give and bequeath to my brothers "in any other "mode, as soon David and James, to be equally divided between them, the "as they could." « money arising from the sale of the land and other property, This was adjudged to be a good

devise, so that a sale and conveyance by the executors was effectual to the purchaser; and that the land did not escheat to the Commonwealth in consequence of the testators dying without heirs.

2. A deed of bargain and sale admitted to record on the acknowledgment of the bargainor in Court, without any actual delivery thereof to the bargainee, was determined to be good in law, as a deed delivered; the bargainee having entered upon the land immediately after the purchase; having paid a part of the purchase money; retained possession according to the bargain; and, upon being informed of the deed, approved thereof, and claimed title to the land thereby intended to be conveyed.

3. The finding of an Inquest of Escheat in favour of the Commonwealth will not take away the title of a purchaser claiming by a deed of bargain and sale, legally executed and recorded, before the Inquest was sealed; though without the knowledge of the bargainee until afterwards.

APRIL,

1816.

"and from the debts due to me at the time of my death; and, "as they reside in Great Britain, it is my will that my exe ❝cutors make remittances to them, in bills of exchange, or in The Common$5 any other mode, as soon as they can. I appoint doctor "John M. Daniel and Benjamin James, Esq. executors to this Selden, &c. 66 my last will and testament."

The special verdict proceeds :-" And the said Robert Bu"chan thereafter died, without altering or revoking the same. "We find that the same lands, in the said inquisition and

monstrans de droit mentioned are the lands directed by the "said Buchan to be sold after his decease; and that his bro "thers David and James are aliens and subjects of a foreign "kingdom, neither of whom have ever been, or resided, in this "Commonwealth. We find that, at the death of the said Bu"chan, he had no heir capable of taking or holding lands in "Virginia; his next of kin and of blood being an alien. We "find that the executors named in the said will duly qualified "thereto, and, on the 20th day of March, 1804, having pre"viously entered upon and possessed themselves of the said "land in the inquisition described; and after having advertised "the same for sale, did set up at public auction, the land in "the monstrans de droit described, which was struck out to the "said Selden as the highest bidder, upon a credit of one and "two years; and the said Selden immediately thereafter enter❝ed upon the said land, paid one hundred dollars in part of the "purchase money, and has retained the possession of the land "to the present period. We find that the said executors John "M. Daniel and Benjamin James signed and sealed a paper "writing, purporting to be a deed from them to the plaintiff, " which paper writing we find in the words and figures follow"ing, to wit;" &c. Then the verdict proceeds: " that the said "executors John M. Daniel and Benjamin Jones presented the "said paper writing, purporting to be a deed as aforesaid, to the "County Court of Stafford, where the lands lie, and having

แ

acknowledged the same, it was admitted to record: that, prior "to the admission thereof to record, the said plaintiff Carey "Selden had not been presented with the said paper writing, "and did not know of its being admitted to record; that he " had no knowledge of the execution of the same until after

wealth

V.

APRIL, 1816.

The Common

wealth

V.

Selden, &c.

"taking the inquest by the escheator in the monstrans de droit " mentioned, but, when informed thereof, approved of the same, "and claimed title to the lands thereby intended to be convey. "ed to him by the said executors. We find that the said deed “ had never been delivered by the said executors to the said Sel"den, or seen by him before the inquisition aforesaid was seal"ed. We find that part of the purchase money hath been "paid to the said executors, but not the whole. If, upon the “whole matter, the law be for the Commonwealth, then we "find for the Commonwealth; but, if the law be for the said "Selden, then we find for him."

Upon this special verdict, the Court gave judgment in favour of Selden, and, on a similar verdict in favour of Seddon; from both which judgments, the Attorney for the Commonwealth appealed.

These cases were argued, in October, 1807, by the Attorney General for the appellant, and Williams and Randolph for the appellees, before Judges LYONS, FLEMING, ROANE, and TUCKER. On the part of the appellant three points were contended for; 1st. That the lands of Robert Buchan escheated to the Commonwealth, and were not protected from escheat by his will:-2d, That if the executors took a fee simple, it should be considered as held by them in trust for the Commonwealth :-and 3d, That the papers purporting to be deeds to Selden and Seddon, never having been delivered to, or seen by them, before the inquisition was sealed, could not be a bar to the claim of the Commonwealth.

In support of the first point it was said, there was no devise of the lands to the executors, but merely a power given them to sell, and that only from implication. There is a clear distinction between a devise to executors of land to be sold, and a mere power to sell. In the former case, the profits until the sale go to the executors; in the latter not. (a) In the for(a) 4 Bac. Abr. 281; 2 Burr. mer, the descent is broken, and the estate vested in the exe1028, Lancaster v. Thornton; Co. cutors until the sale; in the latter the descent is not broken, Litt. 112 b. 113 but the estate is vested in the heir at law; and if there be no heir, it must go to the Commonwealth by escheat.(b) Accord(b) 2 Tuck. Bl. 244; Constn. of ing to 1 Bac. 133, the King has a title before office found: the Virg. sect. 20. inquest of office is necessary only to give possession. And

a 236 a.

APRIL,

1816.

The Commonwealth

V.

since the Commonwealth is entitled to all escheats hereafter going to the King, it follows that, immediately on the death of the tenant without heir, the right of the escheat vests in the Commonwealth. There is not sufficient ground in this case for giving the Selden, &c. executors an estate in fee by implication; for it is a rule that such estate can be allowed to arise only by a necessary, and not a merely possible implication, or intention, in the devisor. (a)

On the other side, it was insisted that, according to the evident intention of the testator, this was a devise of an estate in fee to the executors, by necessary implication; for as they were to sell the land, it must have been intended that they should convey it to the purchaser, (1) and not that such conveyance should be made by the heir: for, if no estate was vested in them, they could convey none.

(a) 4 Bac. Abr, 288.

The descent was certainly broken by this devise. In Co. Litt. 236 a., it is said, that a devise of lands "to be sold by cxecutors," is the same as a devise "to executors to be sold.”(b)(b) See also 8 Viner 460 pl. In Yates v. Compton, 2 P. Wms. 309, the devise was "that his 4; 8 Viner 459. executors should sell his lands," and invest the money in pl. 9; 2 Vernon, pur429, Cooke v. chasing an annuity for Jane Styles; it was decided that the Parsons. descent was broken. So, in case of a devise that the testator's lands shall be sold by his executors for payment of his debts, it was holden that an interest in the land was given to the executors. (c) In 1 Bro. Ch. cases, 135, the testator hav- (c) 8 Viner 465. pl. 24. Hardr. ing directed that all his estate in Kent should be sold forth- 419, Burrington with, and, (after payment of several sums,) that the residue be v Pincheon. See vested in his executors for payment of debts, Lord Ch. Thurlow pl. 22. and 462 decided these to be equitable assets, and that the descent was pl. 1.

broken.

-But, even admitting this to have been a naked power not coupled with an interest, the Commonwealth cannot take; for the executors have exercised that power, and the heir, if there was one, would be bound by it; for, even if the land descended to him, he could make no disposition, which would not be over

(1) Note. See Rev. Code, 1st vol. chap. 92. sect. 45. p. 166, quoted, as to this point, by Mr. Randolph.

also 8 Viner 465

APRIL, 1816.

reached by the sale of the executors, who may sell notwithstanding his sale. (a) Indeed, according to the case in Co. Litt. if the executors released to the heir, such act is void, as not in conformity with the will. In like manner, the Lord, or the Selden, &c. King, claiming by escheat, is precluded by the sale made by the executors. (b)

The Commonwealth

V.

(a) 8 Viner 458. pl. 2; 469. pl. 2.3; Co. Litt.

265.6; 10 Viner

Bulst. 43.

In support of the second point, the Attorney General referred 149. pl. 3; 3 to his argument in the case of the Commonwealth v. Martin's executors, which, together with that in opposition, need not here 10 Viner 150. be inserted, the point in question being so fully discussed by pl. 20 note. Leonard 260; Co. the judges in their opinions in that case.(1)

(b) Hardr. 419;

Litt. 150. Har

grave's note.

In support of the third point, it was contended, that the writ ing produced did not possess the essential requisites of a deed. There were no parties to it. The name of Selden was indeed in it; but he was not a contracting party; never assented to it; and knew nothing of it until after the inquest was taken, It never was delivered to him at all, though it was recorded in court upon the acknowledgment of the executors; for that was merely an act of theirs without his participation. If it was delivered as an escrow, the jury ought so to have found it; for the court can presume nothing in a special verdict. (c) Rev. Code, Delivery is absolutely necessary to perfect a deed. (c). The 1st vol. ch. 90. sect. 1. p. 156; verdict finding that a paper, purporting to be a deed, never was 2Tuck. Bl. 306. delivered, but assented to afterwards, does not make it a deed, but only a paper assented to, which was not a deed. here in a court of law, and the deed must have the legal requisites. Recording may be supposed equivalent to delivery; but the law requires delivery, as well as recording. A deed, if delivered, is good between the parties, though not recorded. Recording is a strong ground of inference that it has been delivered; but, in this case, that inference is prohibited by the express finding of the Jury that it never was delivered.

We are

(1) Note. As to this point, Williams said, "I shall not stop to inquire whe"ther the Commonwealth has any equity, or whether she can call for execution of "the trust for her benefit. When that case is presented, it will be proper to con der it. This is a proceeding at common lary."