Stewart's lessee vs. Jones.-1836.

cases from Harris and Johnson and Cranch, above cited; and yet I admit that in the case of Stewart's lessee vs. Evans, 3 Har. and John. 287, it has been decided, that a descent from a sister to a brother is within the act of 1786; but I assume, that the case last cited was an erroneous exposition of the statute. It is condemned by the common law, and overruled by the case in 4 Har. and John. 256. The decision of this court in 3 Har. and John. 287, does not operate as a bar in this cause, and if the law is erroneously announced, then this court will correct it. The court is not conclusively bound by the former opinion. Hammond vs. Ridgely, 5 Har. and John. 245. If the first proposition be established, the lessor of the plaintiff claims as heir of the person last actually seized of the estate, which is the doctrine of the common law. 7 Har. and John. 2, note (a.) Chirac et al, vs. Reinecker, 2 Peters, 625. 4 Kent, 381, 385. Jackson vs. Hilton, 16 John. 96. Jackson vs. Hendricks, 3 John. cases, 214. 2 Blk. Com. 146. Bates vs. Shraeder, 13 John. 260. Harris et ux, vs. Prichard, 2 Wils. 45. There was no actual seizin, on the part of the father of the lessor of the plaintiff at any time, and so is the proof. He failed in a former action of ejectment for the same premises. The possession of his collateral relations was not his possession. The court cannot assume they were his tenants in common, and the seizin of one of those relations is not the seizin of the others. In short, the success of this cause depends upon how far the court is bound by the case in 3 Har. and John. It is in direct conflict with the subsequent case of Hall and Jacobs, which overrules it.

W. H. COLLINS, for the appellee.

The argument on the other side, and the success of the plaintiff's cause assumes.

1. That the case of Stewart and Evans, 3 Har. and John. 287, is not law.

2. That Captain John Stewart, was never seized so as

Stewart's lessee vs. Jones.-1836.

to make him a stirps or ancestor; that there is no evidence of his entry on the lands claimed.

3. That the proceedings under the commission to effect. a partition was not valid, so as convey title to the person who purchased under it.

Upon the last point, it is supposed, that the question of title under the commission is not now in the cause. The evidence is all from the plaintiff. The prayer assumes, that the inheritance descended on the death of Alexander, to the lessor of the plaintiff, yet the record shows that his father, John Stewart, survived Alexander. This prayer then asks the court to say, that in the interim nothing occurred to shew an entry by John, or that the proceeding by commission was legal and passed his estate; that the mistake was merely in the distribution of the proceeds, and that the title still passed to James. This brings us to consider the act of 1786, ch. 45, sec. 8. In this act the legislature show they know the meaning of the word seizin. The act embraces all seizins. Captain John Stewart, had a seizin in law. But on the other side it is assumed, the act of 1786, meant only a seizin in fact, and that the term is used in the same sense as in the rule seisina facit stipitem. In the act of 1786, jurisdiction is given to divide the land, in case the parties entitled cannot agree upon a division. Does the word entitled, mean a seizin in deed? The ancestor must be seized in fact, but his heirs are only to be entitled, and that looks merely to the legal title. It is enough if the proceedings which pass the title include the parties entitled, in its popular acceptation. There is no casus omissus, in the 8th sec. and then although Captain John Stewart, had a moiety of the estate at common law, and one-twentieth of a moiety under the act to direct descents, both estates are within the 8th sec. of the act of 1785, ch. 45, and operated upon by the commission. Such an estate is within the mischief to be remedied. It was impossible that the commissioners could act upon any undivided interest in an estate, without acting upon the whole. When they acted upon his one-twentieth

Stewart's lessee vs. Jones.-1836.

of an undivided half of the land, they necessarily acted upon his undivided half, of the same land. I conclude, that the commissioners had jurisdiction without a seizin in deed by all the heirs, to divide the estate, or sell it, in case a division could not be had; and this without disturbing the rule that a seizin in fact, is necessary to make an ancestor. If the proceedings were regular they passed the title. But it is objected, the commissioners executed no deed to the purchaser. In the case of a sheriff's sale, a deed is not necessary. Barny vs. Patterson, 6 Harr. and John. 182. A change of property is effected without a deed, by the legal effect of the proceedings. Fenwick vs. Floyd's lessee, 1 Har. and Gill, 172. Boring's lessee vs. Lemmon, 5 Har. and John. 223. Massey vs. Massey's lessee, 4 Har. and John. 141. Hammond et al, vs. Stier, 2 Gill and John. 81. Stevens vs. Richardson, 6 Har. and John. 156, 258. Leadenham vs. Nicholson, 1 Har. and Gill, 267. Hurt vs. Fisher, Ib. 88. Also in cases of election. A compliance with the terms by the husband of one of the heirs, vests the fee in him without deed.

It might have been inferred in this case, that a deed had been made and the form of the prayer took the question from the jury. The proceeding by commission was proper, and the only mistake was in the distribution of the proceeds of sale. It is a judicial sale, and the purchaser is not to look to the application of the purchase money.

We are now to consider three cases, that of Stewart vs. Evans, 3 Har. and John. 287. Hall vs. Jacobs, 4 Har. and John. 287, and in 7 Cranch. They are all correctly decided and consistent.

In the case in 3 Har. and John. the descent was as here, and the court there say, that Alexander's whole estate descended under the act of 1786. But in the case of 4 Har. and John., Jacobs, the elder, devised his estate before the act of 1786. The court decided it to create an estate by purchase. And as the brother took an estate of that character, and not by descent, it was held a casus omissus, in the rules

Stewart's lessee vs. Jones.-1836.

of descent prescribed by the act. The case of 7 Cranch, was a descent from half blood to half blood, against all the rules of the common law; and in these particulars, the two cases differ from the decision in 3 Har. and John., and like the common law, takes a distinction between purchased and descended property, the mother's relations never inheriting the latter where derived ex parte paterna. The effort of counsel, also was to get up a constructive descent; but neither in the case in 3 Har. and John. nor in this, is there any necessity for it, as in both there was an actual descent. Technical terms are to be preserved, and the technical meaning of the terms "on the part of the father" maintained. These are common law terms. 2 Tho. Co. 169, 170, No. O. when an estate has really descended on the part of the father, the strict feudal law is preserved. Descents on the part of the father flow from him either, mediately, or immediately. You trace the history of the fee, and if no other title intervene, the blood of the ancestor takes. But the estate by purchase has a more fluctuating quality. It goes either to the father or mother; yet if the history of the fee can be traced, the blood of the first purchaser takes. 2 Black. 220, 223. The law follows the fact. An ancient fee, none but the blood of the first purchaser can take. If it be antiquum by fiction, the mother's blood may inherit, and this rule distinguishes this cause from 4 Har. and John. 245, and also 7 Cranch. This is a feud antiquum et veterum, a line of unbroken descents ex parte paterna, 2 Thos. Co. 170, No. 20. The touchstone is, can the father or mother take the property. It is one of the dividing points of the law, and this answers any supposed discrepancy between the case in 3 Har. and John. 287, and 7 Cranch. The courts deciding those cases have placed them on that very doctrine. The language in Cranch, refers to an estate by purchase; it is guarded, and if an authority were wanting to show the question now under consideration, to be open, it would be found there; moreover, its language must be limited to the special circumstances of the case. So when the judge speaks of a

Stewart's lessee vs. Jones.-1836.

descent from brother to brother as an immediate descent, he means of an estate acquired by purchase. Any other construction would make him depart from the whole line of his argument, the facts of the cause, the reason of the thing, and the principles of the common law. There is nothing new in his view of it, but like things dug up out of an ancient mine by others who have explored it before us, and now by us first seen appear new. The case in Munford, relates only to a descent from the father, and turns upon the words of the Virginia statute, which does not use the terms of the common law, on the part of the father." The case in 3 Har. and John. 287, is like the present, except that a partition there is conceded, still Jane, would be in by descent from her father, 1 Thos. Co. 726, 727, note (t.)

The case of Hilliard vs. Moor, 2, N. C. Law Rep. 590, referred to in 2 Peters, S. C. 58, is precisely that of the cause under consideration, and a decisive authority with the defendant. The meaning of the words on the part of the father is illustrated by Shippen vs. Izard, 1 Serg. and Raw. 225. Bevan vs. Taylor et al, 7 Serg. and Raw. 397.

This is a paternal fee and on the part of the father. The same rule applies in estates of gavel kind. I conclude, that the common law meaning of the words on the part of the father, is that none can take, but of his whole blood, and determining who is the heir that principle is the corner stone. A descent from brother to brother of a descended estate, is a mediate descent on the part of the father. So from uncle to nephew. So from cousin to cousin. So in all cases, when the heirship is traced through the blood of the father of a deceased tenant without children. These are cases of constructive descent. The case in 4 Har. and John. 245, relates to estates by purchase, and conforms to the common law and its fictions, but here no fiction is necessary. The legislature relied upon the correct judgment of this court in 3 Har. and John. 287, and in the act of 1820, did not provide for such a case, but the difficulties flowing from the decision in 4 Har. and John. 245, as provided for in that act.