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“is no adversary possession on the part of the defendant which “can defeat the right derived from the state. Under the act of " October, 1780, ch. 49, the state became actually possessed of “the land; and that act dispenses with the requisites necessary in “the case of the crown to avoid a possession adversary to the “right of the crown, ta wit, an office found, or an actual entry.

By an office fouud in England, the crown becomes actually " seized and possessed of any escheat land in question. The state “ then had the right to pass the act of assembly; and by “ that act, the state by its commissioners, was in as full possession “ of the land as if there had been an office found, or actual entry “ by the commissioners, and ouster of the defendant, or those un“der whom he claims."

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Et Vide Ante, page 18, note [2.]

In the case of La Frombois vs. Jackson er dem. Smith & Al., (8 Cow. Rep. 602, 603.) Jones, Ch., said; “If the title was in the

people at the time, the possession of La Frombois, the pur"chaser, under the assumed ownership of Mackay, would not

operate as a bar, unless after an actual possession of forty years; “but as against all individual owners, twenty years would pre"clude the remedy by ejectment. An adverse possession will "not obstruct the operation of a patent; and an occupier of land “ under an invalid claim of title, must have a continued posses. “sion of forty years to bar the people or the grantee from the re. “covery of the same by suit. But where an entry has been made “on land vested in the people, by a private citizen claiming it as ** his own, and he is suffered to hold the premises for the space of

forty years, the person so entering and so holding, will acquire

the right freely to hold and enjoy the same against the people " and their grantees. If, then, the people, after such entry by a " citizen, grant the land within the forty years by letters patent to “ another, the title of their grantee will prevail against the ad"verse possession of the occupier, if he asserts his right and sevicts the intruder within the time allowed by law for his entry. " But the grantee of the people in common with all other individ. "uals, must perfect this title by entry upon the settler, within “twenty years after his title accrues under the patent, or his ensó try will be barred, and his remely by ejectment lost.”

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In the case of Stewart f Al. Lessee vs. Mason, (3 Harr. $ Johns. Rep. 507, 531.). The Court, per Chase, Ch. J. said ; “Until there is a grant for the land there can be no rightful

possession against the proprietary, so as to bar him by Limita“tions."

An adverse possession will not invalidate a derise by the true owner, while out of possession of the lands so held adrersely.

An adverse possession of lands, will not prevent the true owner though out of possession, from devising them. Waring vs. Jackson ex dem. Eden & Al., 1 Peter's Rep. (Sup.Ct. U. S.) 570. May's Heirs vs. Slaughter, 3 Marsh. Rep. (Ky.) 505. 508.

A right of entry in land, is devisable, within the Statute of Wills, (1 R. L. 52.) though at the time of the devise, and of the devisor's death, the land be in the adverse possession of another. Jackson er dem. Eden &. Al. vs. Varick & Al., 7 Cowen's Rep. 238. Affirmed unanimously, Varick & Al. vs. Jackson er dem. Eden & Al., (In Error) 2 Wend. Rep. 166.

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In the case last cited, [Varick & Al. vs. Jackson, &c.] WalWORTH, Ch. who delivered the unanimous Opinion of the Court, said ; “ There is no case in the English books, where it has been “holden that a mere adverse possession, not amounting to a dis“ seisin, is sufficient to prevent the owner from devising. And in Goodright v. Forester, (1 Taunton, 604. 613) Mansfield, C. J. « doubts whether even a technical disseisin has that effect at the “present day. So far as there is any authority on the subject in

our own reports, it is in favor of the right to devise, notwith

standing a mere adverse possession, (Jackson v. Rodgers, 1 Johns. C. 33 ;) and such I believe has been the general under“standing of the profession in this state. The common opinion

as to the effect of a technical or actual disseisin has probably been different.

“The statute against champerty has no application to this sub"ject. That is only in affirmance of the common law. It super

adds penalties, but does not alter the legal effect of the sale of a pretended title. The penalties inflicted by that statute are not

applicable to the case of a devisor or devisee. Admitting the “ will to be in the nature of a conveyance, it could only take ef

• fect upon the death of the testator, when it would be too late to “enforce the penalty against him; and it would be a singular pro“ceeding to attempt to punish the devisee for the act of a devi"ó sor.

He may refuse to take a conveyance, but I am not aware “that he can prevent the operation of an absolute devise, any

more than an heir at law can prevent a descent. Besides, such a construction of the statute might frequently cast the property, “ by descent, upon the person who was wrongfully withholding "the possession from the true owner.

" It has frequently been decided that judicial sales and assign“ments under the insolvent acts, or proceedings in bankruptcy,

are not within the operation of that statute; and I can see no reasons why it should be applied to a devise, which are not “equally applicable to such sales and assignments. There can be no danger that a man will devise bis estate with a view to litiga- tion, which cannot take place till after his death. It is much

more reasonable to suppose he would confess a judgment, and “ suffer the estate to be sold on execution for that purpose.”

And, it seems, that even a disseisin, will not prevent a devise by the disseisee, from passing his right and interest in the lands of which he is disseised.

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In the case last cited, (2 Wend. Rep. .202,) WALWORTH, Ch. said; “Whether, under the British statutes since the abolition of "military tenures, there is any disseisin which will deprive the "owner of property of the power of devising the same, is a ques“tion which does not arise under the facts of this case. The "statute 34 and 35 Hen. 8, (c. 5, sec. 4,) authorizes any person “having a sole estate or interest in fee simple of and in any ma

pors, lands, tenements, rents or other hereditaments in posses“sion, reversion or remainder, to devise the same. And in Good"right v. Forester, (8 East's Rep. 567,) Lord Ellenborough ap“pears to have put some' stress on the words in possession, reversion or remainder, as words of restriction or limitation. Where “the true owner is absolutely divested of his estate, and the same “is vested in the disseisor by a disseisin in fact, according to the "ancient doctrines of the feudal law, especially if the right of en"try is taken away so as to reduce the owner's claim to a mere "right, it may not be correct to call it an estate or interest in pos

session, in the words of the British statute, although it is still an “ hereditament and descendible. Our statute of wills provides, " that any person having any estate of inheritance either in sev

eralty, in coparcepary, or in common, in any lands, tepements " or hereditaments, may, at bis own free will and pleasure, give " or devise the same,' &c. [Sess. 36, ch. 23. sec. 1.) It is hard

ly possible, in broader and more explicit terms, to give a gener“al power to dispose of any property, right or interest in real es“tate by will, whether the same is a vested freehold in possession

of the testator or a mere descendible hereditament or interest “therein, in respect to which, he had only a right of entry, or a

mere right of action. But as the legislature, in the late revi“sion, have settled the rule of property as to all future devises, "and being satisfied there was no actual disseisin of the estate of “Medcef Eden the younger proved on the trial, I think it is un

necessary for me to express any opinion as to the power of a “disseisee to devise, either under the British statute of wills or

our own."

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And although it be a disseisin in fact, as distinguished from a disseisin by election, yet it seems that the devise by the disseisee will be equally effectual.

In the opinion of WALWOTRH, Ch, in the same case last cited, (2 Wend. Rep. 201, 202, 203, 204,) it is said ; " But the princi"pal question in this cause is as to the validity of the devise of “Medcef Eden the younger. Two kinds of disseisin are mention"ed 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 fre and deprived him of all right in relation “thereto, except the mere right of entry and of property; and " which, under certain circumstances, was still further reduced to a mere right of action, the right of entry being lost.

"By this species of disseisin the wrong doer acquired a fee sim“ple, and the actual seisin of the property, together with nearly “all the rights of the real owner; and all cstates depending on “the original seisin were divested or displaced. The other kind " of disseisin was called disseisin by 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 bimself disseised, the freehold was not divested, but “ still continued in him. (Blenden v. Baugh, Cro. Car. 302.)

“Disseisin in fact and disseisio by election have been so fre"quently confouniled, that, in examining the dicta of judges, it is "sometimes difficult to understand to which species of disseisin "they allude, without referring 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 authori. ties, 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 actual ouster or expulsion of the true owner, or by some

other act which was tantamount; such as a common law con"veyance, with livery of seisin, by a person actually seized of an " estate of freehold in the premises; or some one lawfully in pos“session representing the freeholder, (1 Instit. 330, C. note 1;) or " by a common recovery, in which there was a judgment for the

freehold, aod 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. Thompson, 5 Cowen's Rep. 371. Smith v. Burtis, 6 Johns. Rep. “ 197.)

" In this case there was no expulsion of the tenant of the free"hold, and Medcef Eden the younger did no act which could pos“sibly be construed into an election to consider himself disseised. “When Boyd took possession of the premises in 1805, it was du"ring the life of Joseph Eden, and of course before the happening “ of the contingency which afterwards divested the estate acquir“ed under the conveyances of the first of September, 1804, and “the first of May, 1805. By those conveyances Boyd acquired " all the right of Joseph Eden, which was an estate in fee, sub“ject, 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 con

Doe v.

“ veyances, 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 pre“ vent the operation of his will, unless the bare holding over " of a tenant for life, after the determination of his estate, and “ claiming the fee, can have that effect."

It is thus decided,

1st. That " there can be no disseisin in fact, except by "the wrongful entry of a person claiming the freehold, and an actual ouster or expulsion of the true owner, or by some "act taptamount thereto; such as a common law conveyance, “ with livery of seisin, by a person actually seized of an estate " of freehold in the premises, or some one, lawfully in possession, "representing the freeholder, or by a common recovery, in which “there is a judgment for the freehold, and an actual delivery of “seisin by the execution, or by levying a fine, which is an ac" knowledgment of a feoffment of record."

2d. That “the bolding over of a tenant for life, after the de“ termination of his estate, though he claims the fee, is not a disseisin of the rightful owner. 3d. That “conveyances, which are not common law conveyances, accompanied with livery of seisin, devest no rights but those of the grantors."

And as to what amounts to a Disscisin, vide also, ante page 20, notes [1] & [2]; and page 21, note [?].

Nor will an adverse possession, or a disseisin, prevent the right and interest of the true owner, if a debtor, from passing by judicial sales; or in the case of an insolvent, by assignment ; or, as a bankrupt, by legal proceedings pursued in such cases.

“ It has frequently been decided that judicial sales and assign“ments under the insolvent acts, or proceedings in bankruptcy, "are not within the operation of that Statute." [Act to prevent and punish Champerty and Maintenance,' 1 R. L. 172.] 'Varick & Al. vs. Jackson ex dem. Eden & Al., (In Error,) 2 Wend. Rep. 204. (Per WALWORTH, CH.)

An adverse possession cannot avail the occupant, where the true

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