2 cap. 1. the form of which is set forth in the statute; or at common law all estates-tail were fee-simple conditional; and the donee, by having issue, might have aliened the estate, or forfeited it, in which cases the issue had no remedy; but when by this statute, called the statute de donis conditionalibus, the donee was deprived of this power; it was also necessary that the issue should have a remedy against the alienation or discontinnuance of his ancestor, and therefore the formedon in descender was given. Formedon(a) in remainder lies where a gift is made in tail or for life, remainder in tail or in fee, and the tenant in tail or for life aliens or is disseised, and dieth without issue, he in remainder, or his representative, may bring their formedon in remainder. This writ, as it lies for him in remainder after an estate-tail, is grounded upon the equity of the statute de donis; for a formedon in remainder did not lie upon an estate-tail at common law, because it was a fee-simple conditional, whereupon no remainder could be limited, because of the danger of a perpetuity, which was always against the policy of our law. [ *9] *Formedon(b) in reverter lies, where the donee in tail, or his issue, die without issue, and a stranger abates, or they who were seised by force of the entail discontinue the same; in either of these cases, the donor or his heirs may have a forinedon in reverter. This writ lay at common law; for though at common law the estate-tail was a fee-simple conditional, so that by having issue, the donee, by alienation, &c. might have barred the possibility of the donor's right of reverter, yet the having of children was in the nature of a condition precedent; and there (a) Bac. Abr. tit. Formedon, (A.) F. N. B. 217. 218. (A.) fore if the donee never had a child, the donor might bring his formedon in reverter, and recover against any alienation or disposition of the donee. At common law there does not appear to have been any stated or fixed time for the bringing of actions ;[1] for though it be said by Bracton, (a) that "omnes actiones in mundo infra certa tempora limitationem habent," yet Coke says, (b) that the limitation of actions was by force of divers acts of parliamsnt, and that the general position of Bracton admits of several exceptions. [*10] But formedons(c) were not within any of the ancient limitations; the seisin of the donee was never traversable till the stat. 32 H. VIII. c. 2. wherein it is enacted, "that all formedons in reverter, formedons in remainder, and scire facias, upon fines of any manors, lands, tenements, or other hereditaments, shall be sued and taken within fifty years next after the title and cause of action fallen, and at no time after the said fifty years passed." Lord *Coke observes, (d) that this act extendeth not to a formedon in descender; and Mr. Hargrave, in his note 148. on this observation, says, that the statute mentions formedons in remainder and reverter, and limits them to fifty years; but omits formedon in descender. Nor is the latter deemed to be comprehended within the clause of the statute relative to writs of right for a formedon is not, in the strict sense, a writ of right, though it certainly is in the nature of one, the mere right being equally triable in both. Accordingly, in the case cited by Lord Coke from Dyer, three (b) Co. Litt. 115. (c) 3 Dy. 278 (d) Co. Litt 115. (a) Lib. 2. fol. 228. [1] "By the common law, there was no stated or fixed time, as to the bringing of actions. Limitations are created by, and derive their authority from, statute. (4 Bac. Abr. 461.)" The People vs. Gilbert, 18 Johns. Rep. 228. (Per WOODWORTH, J. delivering the opinion of the court;) and vide Wilcox, qui tam, vs. Fitch, 20 Johns. Rep. 475. Same point, Wall ads. Robson, 2 Nott & McC Rep. 499. Per BAY J. delivering the opinion of the court.) judges held that a formedon in descender was not within the statute; the othe judges doubted: and a case to the same effect is referred to from Bendloe's Reports, 194. But as the 21 Jac. I. c. 16. requires formedons of every kind to be brought within twenty years after the descent of the title, this defect of the former statute is now of no consequence. The principle which ruled the construction of the statute of Henry, as applied to the bringing of writs of formedon, is not affected by the statute of James; but since the passing of the latter statute, there is not to be found in the books, an instance wherein the limitation of twenty years has been objected to a writ of formedon. In consequence(a) of the words "first descended or fallen," if a person entitled to an estate-tail, with remainder over, neglects to bring his writ of formedon within twenty years after his right accrues, he and his issue will be for ever barred.[1] (a) 3 Cruise's Dig. 541. [1] If the time limited has once run against any tenant in tail, it is a good bar not only against him, but also against all persons claiming in the descent per forman doni through him. Inman vs. Barnes, 2 Gallis. Rep. 319. When the statute of limitations once begins to run against an heir in tail, no subsequent event can interrupt its progress; and when it has run twenty years, no Formedon can afterwards be maintained. Dow vs. Warren, 6 Mass. Rep. 328. Tenant in tail dies leaving issue in tail a grand-daughter a feme covert, the grand-daughter dies covert leaving issue in tail two sons infants, the elder attains the age of twenty-one years, and dies; the younger attains his age of twenty-one years, and fourteen years after issues out a writ of formedon in the descender.— Held, that he is barred by the statute of 21 Jac. I. c. 16. The court said, "The daughter and infant heir of a feme covert has ten years after the disability ceases, not from the death of the mother." And CHAMBRE J. said, "The ten years do not run at all "while there is a continuance of disabilities, but they run without in"termission from the time that the disabilities first cease." Cotterell vs. Dutton, 4 Taunt. Rep. 830. The twenty years within which a Formedon in the descender But the person in remainder will be allowed twenty years, from the determination of the preceding estate-tail, [2] to bring his writ of formedon, although *such preceding [*11] estate-tail should continue for centuries; but although he be barred of his formedon, he is not thereby hindered to pursue his right of entry which afterwards accrues to him.[1] ought to be commenced under the statute of 21 Jac. 1 c. 16., begins to run when the title descends to the first heir in tail, unless he lie under a disability. Tolson vs. Kaye, 3 Brod. and Bing. Rep. 217. Wells vs. Newbolt, Cam. & Norw. Rep. 406, 407; & vide Cheseldine's Lessee vs. Brewer, 4 Har. & McHen. Rep. 487. Purnell vs. Reynolds, 4 Har. & McHen. Rep. 489. [2] Possession doth not begin to run against the remainder-man until after the death of the particular tenant. Chandler vs. Phillips, 1Root's Rep. 546. [1] Martindale's Lessee vs. Troop, & ux. 3 Harr. & McHen. Rep. 245. This was an action of Ejectment, brought to September Term, 1782, for a tract of land called Redford, lying in Caroline county. By the special verdict found at September Term, 1790, it appears that Richard Webb being seised in fee of a tract of land called Redford, on the 10th September, 1677, by his last will and testament devised the same unto his two sons, Richard Webb and John Webb, "to be equally divided in moieties between them, provided, that if either his said sons should die without heirs of his body, then the survivor should inherit all his estate, and that they should enjoy it as aforesaid, with their heirs for ever, or to either of their heirs. But if both of the said sons should die without issue, then the said land should be enjoyed by his daughter, Mary Webb, and her heirs forever. On the first day of December, in the same year, the said Richard Webb died; after whose decease the said Richard and John, by virtue of a deed of partition bearing date the 25th day of July, 1710, became severally seised of their respective moieties; Richard of the westernmost moiety and John of the easternmost. John being so seised of the easternmost moiety, on the 10th of May, 1715, died, leaving John Webb, the second, his eldest son and heir at law. John, the second, on the 1st of April, 1749, died, leaving William Webb, his eldest son and heir at law. William Webb, on the 1st day of January, 1756, died, leaving Mary Webb, his only child and heir at law. Mary, on 1st of January, 1772, married Henry Martindale, and afterwards, on the 5th of July, 1775, died, leaving Lydia and Elizabeth, her only children and co-heirs, and who are the lessors of the plaintiff. In (a) ejectment on the demise of R. Gwillym, the jury, on not guilty pleaded, found that T. Andrews was seised in fee of (a) Lutw. 770 Richard Webb, the son of Richard, the devisor, being so seised of the westernmost moiety of the tract of land aforesaid, and which westernmost moiety was the premises in question, by deed of bargain and sale, bearing date the 25th of July, 1710, bargained and sold the said westernmost moiety unto a certain John Wilson; and on the 10th of May, 1719, died without issue of his body, leaving the aforesaid John Webb, the second, his nephew, and heir, of the age of fourteen years. John Wilson bargained and sold the same to a certain John Knowles, to whom a certain Mary Knowles, was an only child and heiress; and who devised the same to her daughters, Sarah Elizabeth and Margaret, who are the present defendants. The said westernmost moiety has been in the sole, exclusive and adverse seisin of the defendants, and those through whom they claim, from the 25th of July, 1710, until the entry of the lessors of the plaintiff, on the 1st of July, 1782, without any claim or interruption by the said lessors of the plaintiff, or those under whom they claim. 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 of the plaintiff. But at the June Term, 1796, the Court of Appeals reversed the judgment of the general court. " 61 "The In Wells vs. Prince, (9 Mass. Rep. 509.) the Court said; "defence in this case is, that the devisee for life having never entered, her refusal to accept the devise is to be presumed and "then the right of entry of the petitioner or remainderman having accrued immediately, he was bound to enter within "twenty years; and having failed so to enter, his right of entry is gone, without which he cannot maintain this process. That "those in remainder might have entered immediately on the re"fusal of the devisee for life to accept the devise is true. But 16 one may have different rights of entry: and although the devisee "for life refuses to accept the estate devised, and the remainder"man thereby acquires an immediate right of entry, yet he is not obliged to avail himself of his right so accruing, but he may en"ter after his second right accrues by the death of the tenant for "life." & vide Wallingford vs. Hearl, 15 Mass. Rep 472. In the case of Stevens & ux. vs. Winship & ux. (1 Pick. Rep. 327.) WILDE, J. delivering the opinion of the Court, said; As to the objection of forfeiture, it is sufficient to remark that the "demandants do not claim a right of entry arising from forfeit |