limitations only runs from the commencement of a clearly adverse possession." If the statute acted against those having no present right, the argument we are considering would be conclusive. But, though the tenant for life be barred, the remainder man cannot, because he has no right of action. But it is said that Joseph's possession barred his co-parceners, represented by William; and as William's estate is barred, the lien which attached to it is gone of course. The answer is, that the bar may exist for one purpose, and against some parties, and not for every purpose, and against all parties. Joseph still retains his character of heir, and by barring the other heirs, the claim of the creditors is not barred. Being heir, he has kept out his companions by deforcing them; but being heir, he cannot destroy the statuteable lien by his own wrong, for his own benefit. He has ceased to be liable to his co-heirs, but not to the creditors. He has acquired the whole fee as against his co-parceners, because they had a right of action. He has not defeated the estate of the creditors, because they had no such right. In Stanford's case it was held, that if the lessee of a future term dies, and the prior term expires, then the lessor enters, and levies a fine, and five years pass, and then B. takes administration to the lessee; he shall have five years afterwards: for no one had title till administration. a 3 Wheat. Rep. 224. b Cited in Cro. Jac. 61. See also Leon. 119. 1822. Ricard V. Williams. 1822. Ricard V. Williams. Allusion has been made to the doctrine of the common law, by which the heir is liable for the specialty debts of his ancestor, so long as the lands remain in his hands, but no longer. It should be remembered, however, that the statute has remedied that evil; that the lands are now subject to the payment of the bond debts of the ancestors, into whose ever hands they may come. The maxim of legislative policy is, caveat emptor. So, too, in equity, the rule is, the vendee under a power shall see to the application of the money. And under the local law of Massachusetts and Connecticut, the cases before cited show that the alienation of the land will not discharge the lien. It is true, that the lapse of 20 years will, under certain circumstances, discharge that lien of a judgment. But how does it discharge it? By presuming payment and satisfaction of the judgment; but that is not the case here. The debts cannot be presumed to be satisfied, since the report of the commissioners to the Court of Probates shows them to be still in existence. Lastly. The objection as to the sale of the demandants being void as against the statute to prevent the selling of disputed titles, has been sufficiently answered by what has been said respecting the authority of administrators and executors, to sell lands in the possession of heirs, their alienees or disseisors, or the alienees of the latter. This is a sale by authority of law; nor is it within the words of the statute, which speaks only of "sales by a person disseised or ousted of the possession of lands by the entry, possession, and enjoyment of any other per son." Here was no disseisin or ouster of the credi tors of the administrator. Mr. Webster, for the plaintiff in error, in reply, stated, that there were two questions for consideration. 1. Whether William D. was shown to have been seised of such estate in the lands, that they became chargeable with his debts at his decease? 2. Supposing him to have died seised of an estate thus chargeable, are the demandants entitled to recover against the adversary claim of Joseph D. and his grantees? 1. It is not proved that William D. had a fee in the lands. He entered into possession on the death of his father, Thomas, in 1769. But non constat what estate the latter held. The will of governor Dudley may be wholly laid out of the case, inasmuch as neither party attempted at the trial to deduce title under that will. William, being a minor, and having brothers and sisters younger than himself, then living, entered into possession of the lands by his guardian: and there being no devise in fee to him from his father in proof, the legal presumption is, that he entered, either as having an estate of his own, in the lands, commencing on his father's death, or as one of the co-heirs of his father. But it is apparent, that he did not enter as a co-heir, because he entered, claiming an exclusive right, took an exclusive possession, and held his brothers and sisters out. He claimed, however, an estate for life only, and the same proof, which shows the possession, shows also under what title that possession was held. This is not inconsistent with 1822. Ricard V. Williams. 1822.* Ricard V. Williams. the general doctrine, that a disseisor cannot qualify his own wrong. For it is first to be proved, tha the was a disseisor. The presumption ought to be, that he entered rightfully, having such title as he pretended to have. It is clear, that the declarations of a person in possession of land as to his title, are admissible against him. If he were tenant for life, then he had a peculiar limited estate acquired by purchase, and perfectly consistent with Joseph's title in the fee. That he held such a limited estate is shown by his own conduct and declarations, and by the conduct of his brothers and sisters, who never disturbed his possession. On the death of William, in 1786, Joseph, being then a minor, and having also brothers and sisters, entered upon the lands, taking the whole rents and profits, holding his brothers and sisters out of possession, and claiming the lands exclusively as his own, and finally conveyed them as his property to those under whom the tenant in the present action claimed. He did not therefore enter as a co-heir of his father, for he excluded his brothers and sisters. Nor did he enter as tenant for life, for he claimed the whole fee, and disposed of it. So that from 1769, to the commencement of the present suit, a period of 50 years, these lands have been possessed and enjoyed in a manner strictly conformable to the supposition, that William had an estate for life in the premises, with remainder to his son Joseph in fee. Now, as neither party produced any documentary evidence of title, but both parties rested on the presumption of grants arising from possession, such a grant, and such a grant only, ought to have been presumed, as should conform to the whole length of possession. It ought to have been left to the jury, to presume a grant to William for life, with remainder to Joseph in fee, because the possession proved such a grant, if it proved any whatsoever. Why should the presumption arise from any one part of the possession, rather than from the whole? And especially, how can a grant to William in fee be presumed from his possession, when he pretended to have an estate for life only? His declarations were not contrary to his possession, but conformable to it: and both his possession and his declarations, and all his conduct, are strictly conformable to the supposition of a remainder in fee in Joseph. The jury ought to have been directed to take all these circumstances into consideration, and to presume such a grant as would support the possession throughout its whole duration. There is an insurmountable difficulty in any other view of the case. The learned judge below, going upon the supposition, that Thomas D. died possessor of an estate in fee, and that William entered as coheir to that estate, instructed the jury that they might presume a grant to him, by his brothers and sisters, of their portions of the inheritance. But this presumption could not be made, because, when he entered, claiming to hold them out, and down to the time of his death, in 1786, some of them were within the saving of the statute of limitations: and it is very clear that, where the statute would apply, any length of time, short of the statute period, can never warrant a presumption; for that would be to presume against 1822. Ricard V. Williams. |