
    Doe on dem. Gilliam v. Jacocks.
    From Bertie.
    These words are found in a deed of bargain and sale, viz: “furthermore, I the said M. H. for myself, my heirs, executors and administrators, do covenant and engage, the above demised premises, to him the said J. H. his heirs and assigns, ag'ainst the lawful claims or demands of any person or persons whatsoever, forever hereafter to warrant, secure and defend.” It seems, that this is a personal covenant, and not a warranty.
    M. II. the grantor in the deed was tenant in tail, and supposing- the clause above cited to be a warranty, still no discontinuance of the estate tail is worked by reason of such warranty occurring in a deed -of bargain and sale; nor is the heir in tail put to her formedon. Quere? Gan the writ of formedon be now brought.
    The first heir in tail after the death of M. II. the grantor in the foregoing deed, when the right devolved on him was an infant, and died before the disability was removed, leaving an infant heir, who became covert before full age, and brought her action within three years after discoverture; she is not barred by the statute of limitations, she comes within the saving of the act.
    Special verdict as follows. — The Jury find, that the lands demised to the Plaintiff were gran ted to John Hardy in the year 1717, and were by his will in writing, duly executed to pass lands, dated 1719, devised to his daughter Elizabeth Hardy, in the words following, “ Also I give unto my daughter Elizabeth another tract of land, lying on the east side of Rogues Pocoson, containing four hundred and twenty-four acres, excepting the one hundred acres given to my brother Thomas” And after giving other lands, he devises as follows, “All which said lands I give unto my said daughter Elizabeth and her heirs lawfully begotten of her body.” The Jury further find, that after the death of John Hardy, the said’ Elizabeth Hardy intermarried with one Nathaniel Hill, and that there was pnly one child of that marriage, who was born October 20, 1726, and was called Michael. The Jury find that Michael Hill, by his deed bearing date 5th of May 1748, and duly proved and registered, conveyed to John Hill the premises, in the words and figures following, that is to say:—
    
      Mirth-Carolina. — To all people to whom these presents shall come, greeting : Know ye that I Michael Hill, of Bertie County, in the province aforesaid, for and in consideration of sixty pounds, current money of Virginia, to me in hand paid by John Hill of the province and county aforesaid, the receipt whereof! do hereby acknowledge, and myself therewith fully satisfied and contented, thereof and of every part and parcel thereof do exonerate, acquit, and discharge the said John Hill, his heirs, executors and administrators forever, by these presents, have given, granted, bargained, aliened, conveyed and confirmed, and by these presents, do freely, fully, and absolutely give, grant, bargain, sell, alien, convey and confirm unto him, the said John Hill, his heirs and assigns forever, one messuage or tract of land, situate, lying and being in the province and county aforesaid, containing by estimation, four hundred and twenty-four acres, lying on the east side of Rogues Pocoson, and beginning at a poplar on the side of the Po-coson, then north GO, east 320 poles to a pine, then south 74, east 216 poles to a pine in John Hardy’s line of Brewer’s Quarter, then along his line one hundred poles to a red oak his corner tree, then south 50, west one hundred and sixty poles to Rogues Pocoson, then the said course 60 poles to a cliesnut, then through the Pocoson, north sixty-six degrees west to the first station ; to have and to hold the said granted and bargained premises, with all appurtenances thereto belonging or in any way appertaining, to him the said John Hill, his heirs and assigns, to his and their only proper use, benefit, and be-hoof forever. And I the said Michael Hill, for me, my heirs, executors and administrators, do covenant, promise'and grant to and with the said John Hill, his heirs and assigns, that before the ensealing hereof; I am tlie true and sole owner of the above bargained premises, and am lawfully seised and possessed thereof in my own proper right, and of a good, perfect and absolute estate of inheritance in fee simple ; and have in myself a good right, full power, and lawful authority, to grant, bargain, sell, convey and confirm, the said bargained premises, in manner as above said, and that the said John, his heirs and assigns, shall and may, from time to time, and at all times hereafter, by force “ and virtue of these presents, lawfully, peaceably, and quietly, have, hold, use, occupy, possess and enjoy, the said demised and bargained premises with the appurtenances, free, and clear and freely, and deal* ly acquitted, exonerated and discharged of, and fi om all manner of former and other gifts, grants, bargains, sales, leases, and mortgages, wills, entails, jointures, dowries, judgments, executions, incumbrances and extents. Furthermore, I the said Michael Hill, for myself, my heirs, executors and administrators, do covenant and engage, the above demised premises, to him the said John Hill, his heirs and assigns, against the lawful claims or demands of any person or persons Whatsoever, forever hereafter to warrant, secure and defend. In witness whereof, I have set my hand and seal the 5th day of May, A. D. 1748.
    (Signed,)
    MICHAEL HILL, [ÓW.]
    The Jury further find, that John Hill, the grantee in the above deed, entered into and was peaceably possessed by actual occupancy, of the premises therein bargained and sold, immediately on the execution of the deed, and continued so possessed until he departed this life about the year 1770. John Hill died intestate, and left Henry Hill, his son and heir at law, who, upon the death of his father, entered into the possession of the premises which descended to him, and continued his possession by actual occupancy, until the 3rd day of May, 1701, when he by deed of bargain and sale of that date, duly proved and registered, in consideration of £679 10s. to him in hand paid by Moses Gilliam, conveyed the premises to said Moses and his heirs, by the description set forth in the above deed of Michael Hill, and the said Moses, in and by virtue of said deed, and by virtue of the statute transferring the possession to the use, was seised of the premises in fee, and entered into possession arid continued in actual occupancy thereof until-of May, A. D. 1819, when he was turned out of possession by a writ of habere Jadas possessionem, to the Sheriff of Bertie directed, which, issued in a suit in ejectment, wherein there was judg.„ ment in the Supreme Court of North-Carolina, that one 
      John Doe should recover damages for a trespass of .the said Moses, in ousting the said John from a term of years, which he held on the demise of Elizabeth Jacocks, from the first day of January A. D. 1813, to the full end and term of seven years,' thence next ensuing. And the Jury further find, that the said Elizabeth, by the Sheriff aforesaid, was placed in the possession of said premises, and continued in the quiet and peaceable occupancy thereof, until the first day of January 1820, when she departed therefrom, and John Doe, in and by the demises set forth in the declaration in ejectment, in this suit entered, and was possessed of Ids term as therein set forth, until the 10t!) day of January A. I). 1822, when the said .Elizabeth entered in and upon the said John, and ejected him from his term aforesaid. The Jury further find, that Michael Jlill and Elizabeth Hill, had one son, Hardy, who was born 21st February 1756, and died 5th of September 1777, intestate, aged twenty-one years six months and fourteen days, leaving his daughter Elizabeth his only child and heir at Jaw. The Jury find that she was born February 18, 1776, and was married to Jonathan Jacocks March 17, 1791. The Jury find, that she came of lawful age on the 18th February 1707, and that Jonathan Jacocks departed this life the 2d day of December, in the. year 1810, and that she brought her action of ejectment in Bertie Superior Court, on the —— day of April 1813, against Moses G-üliani, on which there vas a judgment in her favor, and an appeal to the Supreme Court, in which the judgment was affirmed at May term 1819, ami she was placed in possession as before mentioned.
    Nash Judge, who presided, on this special verdict, considered that the law was for the Defendant, and gave .judgment accordingly, from which Plaintiff appealed.
    It was in this Court admitted, that Michael Hill died 1764, and it was agreed the factshould be paid of the case.
    
      Hogg, for Plaintiff. —
    The deed of Michael Hill to John Hill, of 1746, created a discontinuance of the estate tail 0f which Michael was seised, so that the issue of Michael cou^ n°t revest the estate by entry, but must recover the freehold by writ of formedon.
    
    (|¡sc0nt¡n(,aiicc may ]je effected by any deed from a person having “the right of possession,” which hath va; lidity to transfer that right; but not the right of property. It is the alienation of the “ right of possession,” leaving the right of property in another, which must be asserted by an action, and not by entry. A deed of feoffment from a person having the right of possession (a tenant in tail for instance) divests his own estate in possession, and transfers a fee-simple to his feoffee, determinable by the formedon of his issue, whose right of action is saved by the slat, de donis. This discontinuance is produced by feoffment, partly because of the notoriety of the transfer of possession from the feoffer to the feoffee, which was completed by solemn livery of seisin, and which the policy of the ancient law would not permit to be annulled by entry in pais, and parity because, in the simplicity of the common, law, a warranty was implied in every feoffment which rebutted the right of the heir of the feoffor ; and the benefit of rebutter could not be had upon an entry, but only by a plea insisting on the warranty as a bar of the real action.
    It is not pretended by us, that the deed of Michael Sill is a feoffment, or has the effect of a feoffment. It is a deed of bargain and sale, operating under the Statute of Uses, by passing the use mty of the lands to the bar-gainee, to which the possession aud seisin of the bar-gainor are transferred by the operation of the statute : The deed itself operating without “ livery of seisin,” passes only what the feoffor may lawfully pass, to-wit, his own life-estate. The residue of the estate will descend to the issue of the bargainor, and upon his decease, they may enter on his bargainee, or his heirs, whose estate terminated with the life of the bargainor. But as it is lawful for the tenant in tail to convey the whole of the inheritance of which lie is seised provided he leaves lands of equal value to descend to the heirs of bis body in fee, in lieu of the estate tail: he may, by any conveyance, bar the right of his issue m tail, by leaving them real assets, and by binding them in a real covenant to %carrant the estate made by him to an ali-enee and his heirs : whereby the alienee and his heirs will have a fee-simple estate, determinable on the extinction of tbe issue in fail, when an entry or action will accrue to him in the reversion. By force of a warranty therefore, and real assets descended, the right of the issue in tail, may be effectually barred, notwithstanding the statute de donis,
    
    Upon this ground it is, that the warranty itself, without assets, creates a discontinuance of an estate tail— because the law intends, that no man will bind his heirs to warranty without assets, but especially because, if the entry of the issue in tail was permitted, the alienee and hisheirs could not have the benefit of their warranty without being put to their writ of Warrantioe Chartrn (if that lay upon any disturbance besides that of a stranger) whereas if the formedon be brought, the warranty with assets might be plead in bar of the right of the issue in tail.
    
    As the discontinuance is imputed by us to the operation of the warranty solely in the present deed, it will be well to enquire into the use of that covenant, it was originally an incident of the feudal relation of lord and tenant. Upon every gift of a fee, the vassal or tenant was bound to render fealty or service to the donor or lord, and the lord was bound to defend the fee against a 11 acts of strangers, and if the tenant was evicted, to give to the tenant lands of equal value. This was technically called a “ warranty.” If the tenant, was sued by a stranger, he vouched the lord to defend the suit, and if he was evicted, he recovered his recompense by his warranti® eh arte, if he was sued by the lord, or his heir, he rebutted the suit, by pleading the warranty in bar of the lord’s right of action, These were originally the only warranties, as the fee was given by livery of seisin, and not by deed. When charters of feoffment were introduced. they had the effect only of preserving evidence of the gift, which yet derived its force and effect from the livery. And every charter which contained the word “ dedi,” implied a warranty, without an express clause binding the grantor and his heirs. On the introduction of feuds into England, a vassal could not alienate his fee, and therefore the warranty and services were reciprocal between the donor and donee. Subinfeudations nevertheless were soon attempted, and the services being of right due to the lord, to whom the reversion belonged, the grantor was not hound to warranty by implication of law, but only for his own life. This will appear from the Stat. de Bigamis 14,Edw. 1 — Stat. 4, sec. 6, which is declaratory of the common law. It became therefore necessary for the snh-feuant to have an express warranty. Subinfeudation becoming universal by Stat. Quia cmplores (18, Edw. 1) a clause of warranty became also a necessary part of the assurance by feoffment; and lienee the only distinction between implied and express warranties. Tiie express warranty by deed came instead of the incident to the feudal investiture. By the operation of the warranty, implied, and afterwards expressed, the heir of the donor upon whom the warranty descended, was barred of any right of action for the lands warranted, whether he claimed the inheritance from his father, or by gift from another; and whether assets descended to him or not — the services due upon the gift, being deemed an equivalent for the land. This continued until it was restrained by the statute law.
    The first restraining law was passed, 6 Edw. 1, and is called the Stat. of Gloucester,. By this statute, a husband seised in right of his wife, shall riot bar his heir claiming ex -parte materna, by warranty without assets. But the father, tenant for life, was still at liberty to bar his heir of an inheritance claimed from his mother by warranty and assets.
    
    
      Tlie next restraining statute, was the Slat, de donis, (IS Edw. i) which prohibited the alienation of tenant in tail, to the prejudice of his issue and the donor.
    This statute does not mention warranty ; but it was construed bj' analogy to the stat. of Gloucester passed seven years before, and the conveyance of tenant in tail with warranty, was held not to be a bar to the issue on whom it descended, but his conveyance with warranty and assets was held to bar the issue; nay so far was warranty respected, that the warranty of any ancestor (except the tenant in tail, who was within the words of the statute) was held to bar the issue, without assets. These warranties descending from other ancestors (not tenants) were afterwards called collateral. In all cases where the issue by virtue of this statute would avoid the force of his ancestor’s warranty, he must resort to the remedy granted by the statute, his formedon in descender ; for except by that writ, the warranty of the ancestor was conclusive of the right of his heir, on whom it descended ; and upon that writ only, could the alienee of the tenant have benefit of his [ilea of warranty and assets descended, or of his collateral warranty, if lie had one.
    The effect of express warranty by deed, is to bind the grantor and his heirs to make recompense to the grantee and his heirs and assigns in case of eviction. If a stranger evict, the remedy of the grantee is by action or voucher. If the grantor, or his heirs, bring suit, to prevent circuity of action, the warranty must be plead in bar; and where by the statute law the warranty is not a bar without assets, the descent of assets must be averred in the plea, and proved on the issue. This plea in bar, is to prevent circuity of action, which by the law of warranty was anxiously avoided ; for at the suit of a stranger, voucher was given, and at the suit of the grantor, the jilea in bar, technically a Rebutter, was a defence, whereby, in each case, the rights of the party are settled in one action, instead of two.
    
      A rebutter differs from an estoppel in this ; that the conveyance of the ancestor estops himself, and those , , , ... .... claiming lands under him as Ins heirs, to claim against jjjs (]ee(i5 but does not at all estop his heirs not claiming by descent from him, hut by descent or gift from some other person, to claim against the deed.' A rebutter would bar the right of the heir however acquired. As if the ancestor has the right of possession in himself, and the inheritance is in the heir, either by descent from bis mother, or by purchase from another; if the father convey the lands, the heir claiming by descent from the mother, or by purchase, is not estopped to claim against his father’s deed ; but if the father, before the restraining statute, had annexed a warranty, or since had left assets to descend with a warranty, the heir shall be rebutted of hisjj own right. — Coke on Lit 365.
    Before the statutes of 6 Edw. 1, & 13 Edw. 1, the heir was barred by the warranty of his ancestor, in all cases, without assets descended, and since those statutes with assets descended and the issue in tail, by collateral warranty without assets. — See Butler’s Note, 2. Coke Lit. 373. Bole v. Haughton, Vaughan’s Rep. 375. Gilbert’s Tenures 373.
    The deed of Michael Hill to John Hill, doth contain a warranty, and the warranty although in a deed of bargain and sale, will, if assets have descended from Michael to his heirs at law, (issue in tail) bar the right of the issue. By force of the warranty in the deed of bargain and sale from Michael, (if assets descended) a new estate in fee is vested in John and his heirs, determinable on the extinction of the issue in tail, by the action of the donor in reversion. If assets descended from Michael to his heirs, the issue in taii is barred of his right of property, and cannot bring his formedon. And because the deed of bargain and sale, with warranty and assets, will convey the estate of which Michael was seised, so as to vest in John, and his heirs, a determinable fee simple; the same deed and warranty without assets, will convey to John and his heirs the right of possession, as aarainst Michael, and his heir. If assets have not de- ° ,, scended, the issue in tail are entitled to their formedon, under the statute de donis; but as Michael might right-folly, by deed of bargain and sale, with warranty and assets, divest the right of property from his heir (issue in tail) who is not, if assets have descended, protected by that statute, so by the deed and warranty, he may ‘Wrongfully divest their right of possession from his heirs and convey it to John and his heirs, leaving the issue in tail, if they have not assets from him by descent, to re-vest their estate by action, by the formedon given them by the statute. This is a discontinuance, the deed and warranty conveys the possession and right of possession, which was in Michael, to his warrantee and his heirs j but the right'of property is in the issue in tail, for which he has an appropriate remedy given him by the statute de donis.
    
    It is objected, that the covenant in the deed of Michael is not an ancient warranty, but a modern covenant for quiet possession only, and this objection is rested on the phraseology of the covenant which is not in the precise words of the ancient charters of feoffment — the deed witnessed “ that the said Michael for himself, his heirs, executors and administrators, doth covenant to warrant The ancient clause is, the said Michael, for himself and his heirs, “ doth or will warrant.” It is said, that if the present be a warranty, the word executors must be rejected, as the personal representatives were not privies to the ancient warranty, and that the bargainor intended to enter into the covenant for quiet possession, as he has covenanted for his executors. It would be a very unsafe construction to allow the word " to warrant,” which has a technical sense to be restrained, because the bargainor attempted to bind his executors, even if no reason could be rendered why executors were inserted ,■ but it would be very absurd when the executors were properly bound. The remedy in this country on the ancient warranty being altered, and the personal remedy of covenant (in case-of the eviction of a stranger) being "substituted for the an- . , , , . , cient one ol voucher and warrant» chart», the executors are properly privies, and may be sued But as to the heir,.he is yet liable to be sued in covenant, on the eviction of a stranger, and to be rebutted if he bring an action, and it is therefore proper that whilst the grantor binds his heirs to the ancient warranty, so that his grantee may have the benefit of rebutter, that lie should bind both his executors and heirs to warrant against the eviction of a stranger. As to the supposed distinction between “a covenant to warrant” and “ a warranty,” and a difference between “ I do warrant” and “ I do covenant and engage to warrant,” it is verbal only.
    We know the wording of the covenant is resorted to by the highest authority, Lord Hardwicke in Williamson v. Godrington, 1 Vesey sen. 513. But that case turns not on a verbal distinction, but on the broad ground that' the covenant applied to personally and realty, and therefore, could not be taken to be a real warranty, which would not apply to the personalty at all, and the phraseology was merely referred to in aid of the rule of con-straction “propter subjectam materiem.” we must construe the covenant in the deed of Michael, therefore, so as to give the bargainee the advantage of the warranty in his deed, Operating by rebutter, because that is the - legal result from the words used, is applicable to the subject matter, and is most beneficial to the grantee. But if we could go in search of the meaning of the individuals, parties to this deed, we must suppose that they knew they were creating a rebutter, because they .have inserted in their deed a covenant for quiet possession against all former titles and incumbrances, immediately succeeding the warranty, and unless they intended to give to the warrantee a rebutter, by 'the warranty they were doing an idle thing.
    It is said, that if it be a warranty proper, yet as it is in a bargain and sale, that it will not create a discontinuance. It is conceded to us that a feoffment will pass the picht of-possession, and therefore creates a discontinuance, although a feoffment without warranty and assets, will not bar the estate tail; and it is not pretended by us that a conveyance that passed the mere right, will affect the possession, as a release to a disseisor ; the release itself only remitting the right to the disseisor, if tenant in tail therefore, releases to his disseisor, he passes only his own life estate, and on decease of the tenant, his issue may enter j but if lie release with warranty and assets descend, he bars his heir, notwithstanding the statute de donis in the same manner as if he had iufeoffed the dissei-sor originally, with warranty, and assets had descended, and if no assets descend, yet the warranty in the release, repels the entry of the heir, and puts him t.o his forrnedon. Gilbert’s Tenures, 53, 54 — Lilt. Sec. 598, 599, 600, 601.
    
    So a bargain and sale without warranty, passes the life estate only of tenant in tail, in possesssion, and on his decease, his heir, the issue of the donee may enter j but the warranty express in a deed, having the force of a feudal contract, may be part of bargain and sale, and by such warranty and assets from tenant in tail in possession, notwithstanding the statute de donis the issue in tail may be barred. By operation of the statute of 27 Henry vm, chap. 10, called the statute of uses, the bar-gainee of a use, hath by the statute, the seisin and possession of his bargainor transferred to him ; the whole estate that was in his bargainor! not a seisin in law, but in fact not a right to enter and have the profits, and to call for a conveyance, but the actual legal estate of the bargainor! now we have seen that by means of a warranty and assets, the tenant and tail may lawfully bar the issue in tail his heirs : ho may.as to them alien the estate tail. He may do so by bargain and sale with warranty and assets- descended, and if there be bargain and sale and warranty, it will create a discontinuance, because the fact of assets descended, or not, can be tried only in the real action, by forrnedon, and until tried, the law will intend that the deed of the tena •> is lawful, and that he has given a recompense to his heir : for the estate of which the bargainee is seised, by 27 He'try viii. gee j}aconis j}aading-- 176 — Sander’s on Uses and Trusts, 114 last edit. — Cruise, 1 vol. 423,424, & Vaughan’s Reports, 384. The cestui que trust is so in of the old estate of tiie bargainor, that lie may as assignee of bargainor, avail himself of a warranty in a former deed.
    
      Note. — After the argument, one of the Court referred the counsel for the Plaintiff to the case of Doe v. Westioidge, 4 Maulé & Sehayn, 181. It is an authority to show that the covenant in the deed of Mi. chael Hill is an ancient warranty, and not a covenant for quiet posses, sion, and further, that a warranty in a release, a conveyance operating without warranty to pass the right of the releasor only, will by force of the warranty, create a discontinuance of an estate tail.
    That a bargain and sale will create a discontinuance» see Butler’s note (1) — Coke Litt. 330 — Gilbert’s Ten. 117, 120.* It is said however, that the question of discontinuance is not open, that the present Defendant, tenant in tail, recovered a term for years in an action of ejectment, and was thereupon, remitted to his ancient estate. If there was a discontinuance (and it is supposed in the argument) the recovery of the term would not remit the discontinucc to her estate tail. The discontinuee had a right remediable by real action only, whilst the freehold, in contemplation of law, was in John Hill and his assignees. If an entry congeable be in one person (that is the right to the possession) and the actual possession be in another, and the person having the right to possession get the actual possession, either by entry in pais, or by recovery in ejectment, he shall be remitted to his old estate. — So it. is if a person have a right remediable by real action, if the freehold be cast on him by act of law, or by recovery, he shall be remitted to his ancient estate t, but one having the actual possession merely for a term of years, where tlse freehold is tortiously in another, cannot be remitted to his ancient estate by operation of law. He must, by recovery or otherwise, destroy the tortious freehold. By the recovery in eject-raent, Elizabeth Jacocks shewed ohly that she had a term for seven years from the day of her demise, which had expired before the present suit brought. — Co. Lit. 349, a, 8 Bl. Com. 19. Gilb. Remitter. Preston’s Law Tracts, 45.
    The Plaintiff’s entry or formedon was barred by the act of 1715, before Mrs. Jacocks brought her ejectment in 1813. Michael Mill by deed conveyed the estate in 1748, to John Hill and his heirs: Michael died in 1760. If there ■was a discontinuance, the heir of his body-issue in tail of Elizabeth Hardy, had his formedon, if there was no discontinuance, his heir issue in tail, had his. right of entry in 1760, and in seven years would have been barred by the statute, of limitations of 1715, unless'within its savings : Hardy Hill the issue in tail, having the right in 1760, was born on 21st February 1756, and was at his father’s death an infant of four years of-, age, and was therefore, within the saving of the statute, and liad three years after he came of age, that is after gist February 1777, to bring his suit. He died 5th September 1777, being of full age, leaving Elizabeth Jacocks his. daughter and heir, and issue in tail of Elizabeth Hardy, born 15th January 1776 ; and the question is, whether this second tenant of the right of action or entry,within the saving of any statute — she married Jonathan Jacocks 17th March 1791; he died iu 1810, and she brought her suit within' less than three years after her discoverture. This Court having decided that cumulative disabilities supervening; as coverture upon infancy in the same person having a right to a personal action, are within the saving of the act of 1716, section 9, so that the person must be entirely free from disability before the three years will run in a personal action; we will not enquire into the effect of her marriage, but pass it over with the single remark that the proviso in personal actions, and that as to the right to land is differently worded ; and confine the argument to shew that Elizabeth Jacocks (personally) was never within saving of the statute; but as the representative of Hardy Hill, was obliged to enter or bring suit; as Hardy her father was. But for the act of 1783, chap. 187, JV*. 11. Hardy Ilill must have brought his action 21st February, ■'. , ? „ .... 1780, m three years alter he came oi age: by this last ac£ ]1(J an(j his heirs might bring it within three years after 1st June 1784, that was first of June 1787 — does the fact that ho died 1777, having a right by the statutes of 1715 and 1783, to bring his suit any time before 1st June 1787, give the Defendant Elizabeth, the next tenant in tail, a right to bring her suit within theee years after all her disabilities removed. The purview of thestatutp of limitations intends only to bar the remedy of him whose estate is turned to a right by the commencement of the adverse possession — and to bar the remedy of him, who by some former gift, hath a right expectant upon some outstanding particular legal estate for years or for life, from the time such legal estate expires and such expectancy vests in right of possession or action so as to entitle him thus in remainder or reversion, or being issue in tail, to make his entry or bring his suit against him in the adverse possession — For instance, if John Hill liad taken tortious possession with colour of title against Michael, the statute would have begun to run upon Michael and his heirs, and in seven years, their remedy would have been barred, and if Michael had died before seven years, his heir, although an infant, must have claimed by suit or entry within seven years — as Michael liad a life estate and transferred it to John — Hardy, the issue in tail having right of entry or suit expectant upon Michael’s life estate; if Hardy had been at the death of Michael (1760) of full age, his heir Elizabeth, must have entered or claimed within seven years from 1760. We admit that Hardy being at his father’s death an infant, had until his full age and three years thereafter to enter, and that if lie died under age, his lieir, if under no disability, should have at least three years from his death, to enter or claim, ami if less than four years of the seven had expired, then he should have the residue. At least seven years are required for a bar, and in case of disability, the person disabled and his heirs, shall have seven years, and ifcthe seven years or four of the seven be ex-pined, shall have three years added — except a person beyond seas, who must by himself or his heir, enter in eight years.
    saving for the heir Our argument is, that there is no of a person not under disability, whose estate was turned to a present right of possession before his death, but that bis heir, though under disability, at the time of the descent, must enter, and this has never been denied. Fur*-ther, we insist if a tenant under disability die, having a present right of entry, and his right desceud to an heir under disability, that there is no saving for this'second heir, because of his disability; but .he must enter under the saving in favor of his ancestor, within three years of his death, if seven years have elapsed in all, as his heir of full age must do : — we insist this is the true construction, because in the act his heir not under disability and those under disability, are put-on the same footing. The purview of the statute clearly proceeds on the common law notion, that “hearts est pars anticessoris” and therefore the non claim of the ancestor, bars the heir, and the saving is framed on the same notion that the non-age or other disability of the ancestor shall save the right of entry to the ancestor and his heirs, but the disability of the heir of a disabled ancestor is not mentioned in the statute 3 but he, as an heir not under disability, must take might advantage of the saving as the ancestor .himself the saving is personal to the ancestor, and the heirs are within the saving, as his representatives. If the ancestor be an infant under fourteen years, he may have his minority and three years after; if he be eighteen years or more, he shall have full seven years from the time the possession was adverse to his right — so his heir, whether under disability or not, if his ancestor died having less' than four years, non claim against him shall have the full seven years, although it be more than three from the. death of the ancestor j but if seven years have expired or more than four years thereof, before the death of the disabled ancestor, iiis heir shall have three years from the death of the ancestor. Although there be not in 0lI1. statute any thing about the death of a person under the saving, it must be construed that the- disability terminates by • the death as well as by the efflux of time, otherwise the heir being under no disability of a person dying under age, or other disability, must have seven years after the death of his disabled ancestor, although the ancestor himself surviving, his disability would have hut three, which could never be the intention of the Legislature.
    The distinction, that persons having a present right and a disability to make claim, shall be saved from the operation of non-claim, and that persons acquiring a subsequent right, and being under a disability at the time such subsequent right first accrues, shall be also saved from the operation of non-claim, and that no other persons but as representing such disabled persons, shall be within the saving, is common to all the statutes made for the limitation of suits and for quieting possessions ; and in none of the acts is the saving extended to but one disabled person claiming in the same right, and to his representatives claiming within the time given to him. By the act of 4 Hen. 7, c. 24, a fine and five years non-claim, concludes all strangers, except women covert, infants, persons non compos, in prison and out of the realm, who have right at the time of the fine levied — they and their heirs to claim in five years after full age, discover-ture, &c. else to be barred — other persons (not having a present right) to he concluded by the fine and five years non-claim of such rights as muy first accrue to them after the fine, by force of any gift in tail or other matter before the fine : and if any such person, at the time of such action accrued, be under twenty-one, covert, non-compos, in prison or out of the realm, such persons and their heirs to have five years next after they be of age, discovert, &c. to bring suit, and if suit be not brought by them and their heirs, the fine to be a perpetual bar.
    
      By this statute, a person having right at the fine grossed, and being under disability, is excepted, so that he and his heirs bring suit in five years after such person be free from disability.
    The same of a person first acquiring right after the fine if under disability : suit, to be brought by him and his heirs after he come to the age of 21, &c. By this statute, it is not material in what condition the heir of the person disabled be, there is no farther saving for such heir — personally, he must claim in five years after the disability of his father. The purview concludes all strangers the saving extends only to the first tenant of any line of persons entitled to the right, and to his heirs who may enter in the time allowed to them by the saving.
    The act of the 32 Henry vm, c. 2, limited writs of right to sixty years of seisin in fact from the test of the writ — formedons to fifty years — and writs of assize on the disseisin done to an ancestor, to fifty years — and to the person suing for a disseisin done to himself, for thirty ydars. The/e is a saving of six years only to persons having right, and being at the passage of the act under twenty-one, covert, in prison, or out of England, so that such person sue within six years after such person now being within age, shall attain twenty-one within six years after such person, now heing covert de baron, shall he uncovert, &c.
    And there is an express proviso, that if such person die under the disability saved, or within the six years allowed him or her, that his next heir shall have six years after the death of such person.
    This statute is remarkable for the express shutting out, cumulative disabilities of the persons within the saving, and for giving the next heir by express enactment six years to bring suit, after the death of his ancestor, dying under the disability, or within the six years allowed: If not helped by the express proviso, the next heir would have been barred. .
    
      By the statute of 21 James 1, c. 1G, from which ouract was probably taken, writs of formedon and entry are H-1 mited to twenty years after the, then .Parliament, or w^]jjn twenty years after such right of action or entry sliould accrue. The act contains a proviso, that if any person shall be, at the time such right or title first accrued, within twenty-one, &c. then such person and his heirs shall, notwithstanding the said twenty years be expired, bring his action, or make his entry, as before the act, so as such person and his heirs, within ten years next after his full age, &c. or death, take benefit and at no time after the ten years.
    
    From the wording of this statute, it is manifest that the person (or persons, where there is more than one tenant) having a right at the time of the adverse possession taken, or first acquiring a right after such adverse possession, and being under a disability at the time of such right accruing, is protected for twenty years as all other persons, and for ten years after the termination of the twenty years, (notwithstanding the said twenty years be expired,) so that he and his heirs bring his suit or enter in ten years after the disability removed or terminated by the death of the party and at no time after the ten years, the word death being inserted in this act, from the greater caution, it having been omitted in the statute of 4th Henry vn.
    Then comes our own act, which does not provide that the person under disability and his heir, may enter or sue withiu three years after full age, &c. but that the party himself personally shall enter, nor does it provide by express words, that the disability shall terminate by the death of the party, but provides that the party after full age, discoverturc, &c, may claim j but we must necessarily give the same construction to our act as if it had been provided like the statute of James, as it would be too rigid not to allow tiie heir to enter if his immediate ancestor should die under disability and too loose to give an heir, being of full age and under no other disa-bilsty, seven years after Isis ancestor’s death (the seven years having expired) then the ancestor himself, would have had but three years- In this act as in the British acts, from which it was doubtless borrowed, the right is saved to a tenant, having disability at the time of the adverse possession commenced, or to the ancestor, of a line of inheritable heirs, such anccsto{'first acquiring tiie right and being under disability at the time of the acquisition ; but no notice is taken of the disability of any, “heir” in the succession to the right from such ancestor in any of the acts, and in our statute the Legislature expressly declares that their object in passing the act is “to prevent the expectation of heirs leaving much land un-possessed and titles perplexed.”
    The argument submitted by us on the operation of the statute, will be supported by the reasoning of the majority of the Court in Stowell v. Zonch, 1 Plowden 355— which was a case arising under the statute of 4 Henry vn. chap. 24, before referred to, and by Bor our cv. Jones, 4 Term, 300.
    It is laid down as law expressly by the King’s Bench, in Doe v. Jessup, 6 East, 80 — that the disabilities of successive' tenants are not within the saving of 21 James i. and it is held by them the second being heir of the first tenant, must bring bis suit within ten years of the first tenant, twenty years in all having expired.
    There is a case 4 Taunton, 326, Cotterell v. Button, where, as in Boe v. Jessup, the demandant did not bring his action (a formedon) until more than ten years after his non-disability ceased. The Court are reported in Cotterell v. Button, to say, that the ten years do not run at all where there is a continuance of disabilities. It will, be found in looking into that case, that it is very badly reported, that the Court were clear on the point, that the demandant was barred by bis own ladies and non-claim, so that they would not hear an argument for the tenant, and that although the case of Boe v. Jones is found fault with by Lens, counsel for the demandant: the Court intimate no opinion that they would overrule it if necessary, arid that the opinions delivered by the Judges, are very short, (and as reported) carelessly worded: so that this case, in which tire Judges give no reason for their construction of the proviso in 21 Jac. I. chap. 16, will not weigli against the opinion of the Court of King's Bench, in 6 East, given at length, and apparently with deliberation.
    The construction we have put on the statutes,derives groat support from the opinion of Kent in Bemarest v. Wyacoop, 3 John. c. c. 129. and from that of Parsons, in 4 Mass. 182, and from 4 Bay 298 and 300, which decide that the cumulative disabilities of one tenant are not protected — and it would seem, from the statutes themselves, that it is much more apparent that the disabilities of successive tenants are not protected. If we are permitted to consult the policy of a law ; since the abolition of primogeniture, and permitting all the children to take lands by descent, it is more necessary to give a rigorous construction to the statute; as titles will be so perplexed by the disabilities of numerous tenants, that scarce any length of possession will be free from the claim of persons protected by successive and cumulative disabilities of some unknown heirs. In the present case, though a succession of single heirs, there has been an adverse possession of fifty-three years, before the first suit brought, from 1769, and the Defendants had purchased in fee and been in possession twelve years before 1760. The quiet of titles is a sufficient answer to the many supposed cases of hardship, and the heir of a disabled person is under no greater hardship than the heir of a person not under disability, against whom the statute does operate confessedly, although the adverse possession commenced one day before his ancestor’s death — besides the disability of the heir is not absolute in fact, there being almost always persons interested to take care of his rights, and the eviction of a purchaser for full price after sixty-seven years improvement, is one of no very small hardship, nor will it be of infrequent occurrence if the statute be extended by equitable construction to save the disabilities of site-cessive tenants. ■■
    
   Tayxou C. J. —

Having formerly given an opinion in ibis case, which I do not, on reflection, see sufficient reason to change, I can only refer to it. I still think that the deed contains nothing more than personal cove* nants, and no one of them could have the effect of rebutting the Plaintiffs. On the point of successive disabilities, Í concur entirely with my brother Henderson» I am therefore relieved from the necessity of giving an opinion upon the question, whether a bargain and sale can, under any circumstances, operate a discontinuance. Following in the course of instruction transmitted to us by those eminent men who have written on the subject, I should think that if a warranty is annexed to a bargain and sale, covenant to stand seised, or release, it may produce a.discohtinuanc'e. Yet, as I have heard no argument on the subject, I am not prepared to say, what alteration may have been effected by our peculiar system.' — Iu this case, Í am of opinion the judgment should be affirmed.

Henderson Judge.

In this case, it is not pretended that the right of the Defendant is hound, the objections go to the remedy only.

It is objected first, that the deed of bargain and sale from Michael Hill, the tenant in tail to John Hill, of 1746, created a discontinuance of the estate tail on account of the warranty attached to it, and that thereby the heir in tail is put to her formedon to recover her estate tail, and cannot regain possession thereof by entry or action of ejectment.

It is objected secondly, that the Defendant is barred by the statute of limitations.

A bargain and sale is a rightful conveyance; the statute transfers the seisin of the bargainor to the bargainee: such a seisin, such an estate as the bargainor had. is transferred to the bargainee. I speak not. as to parties, but as to strangers — that is, those not claiming under ejyiei. 0p them. A feoffment is called a wrongful convey» anee, because it passes, even as to the whole world, what it professes to pass. It is true, if the feoffor had not the rightful estate, the estate which he passed, may be put an end to by him who has the rigiitful one, but it continues till it is put an end to. If tenant in tail therefore, bargain and sell the entailed lands in fee, it is not a discontinuance of the entail tail, for that is a separation of the right from the estate 5 for the issue in tail claims not from the tenant in tail, but per formam doni j he is therefore a stranger to the bargainor, and as to him, the bargain and sale passes only an estate for the life of .the bargainor, his estate remains still in him, he is not put to an action'to recover it, for he has not lost it — he may enter, which is the touchstone by which is ascertained whether an estate is lost or not; for if the tenant is dis-seised, and has not, by a dsscent or otherwise, lost his light of entry, he may compel the lord to avow upon liim, and in ail respects recognize him as his tenant, as one having the estate ; nor can he, so long as his right of entry remains, at his election throw off his estate, the lord may avow upon him as his tenant, and compel him to perform his services. And his right of entry will support a contingent remainder dependant on his estate as the precedent freehold, and as the issue in tail after the death of the bargainor may enter (which is not disputed by any one) it proves beyond a doubt, that the estate tail is in him, and not in the bargainee, that is, that the bargainee has no.estate of any kind, for there cannot be two persons on the same estate at the same time, holding adversely: there may be titles innumerable, but more than one estate at the same time there cannot be; and if it is in the issue in tail, it is not in the bargainee. There is then no separation of the right from- the estate, they both are united in the issue, there is no discontinu-anee. These principles are not controverted by a single writer that I know of. But a feoffment made by a te- ¡ ,. . . „ „ „ nant in tail, is a discontinuance ; tor a teoirmenf passes not only what the feoffor can rightfully pass, but what it professes to pass. The estate is therefore iri the feoffee, and if in him it is not in the issue in tail, who has nothing but a right-to the estate tail. There is a separation of the right from the estate, there is a discontinuance, and if a warranty is added to the feoffment, and it descends on him who is issue in tail, as heir of the warrantor, unaccompanied with fee-simple assets, equal in value to the entailed lands, the issue in tail is barred by means of the warranty and assets combined — not upon principles of strict right, but of policy and convenience, for the sake of quiet and repose, to avoid circuity of action. The discontinuance does not affect the right, but affords to the party an opportunity of shewing that which does. That the warranty and assets form no bar to divest, is clearly proven by this : If the issue in tail should enter, an action cannot be sustained against him on the warranty and assets; and even where there is a discontinuance, and the entry of the issue unlawful, yet if the feof-fee brings a writ of right, in w'hieh action the true right is fried, the issue will prevail; which proves, that it is the avoidance of circuity of action which forms the bar. This accounts for such expressions as those to be found in all the books, that it works a discontinuance — that it amounts to a discontinuance, — if it only barred it — it is not one of itself — if it is not one of itself, it is made so by construction for particular purposes — when those purposes are answered, or when they were never active— the thing is as it is — it is itself.

| I will next endeavour to shew, that it derives no aid from the warranty in discontinuing the estate ,• a warranty is a covenant annexed to an estate. Without an estate there cannot be a warranty. When no estate passes by a deed-, and the grantee had no estate before, the warranty is' a nullity. If an estate is made to a man for life, with a warranty to him and his heirs forever, the warranty determines with the life estate. A warranty is that which protects the estate, it entwines itself around an<] musi fan to the ground with it. It is true, that it is not necessary that a warranty should be annexed to a deed which passes, or even professes to pass an estate, or even a right, provided the warrantor has at the time an estate to which the warranty can attacii itself; it may have passed from the warrantor before, or even from a perfect stranger.

It may be now safely asked, does the discontinuance arise from the warranty or bargain ami sale, or both combined ? If does not arise from either separately, and there is no estate in the bargainee after the bargainor’s death, with which the warranty can combine or unite ; in truth, it cannot be a discontinuance, unless we entirely change the nature of the tiling. I am not unap-prised of what is said by Chief Baron Gilbert, in his Tenures, on this subject; but with deference to the learned Judge, I think that he is mistaken. Let his remarks pass for as much as his argument is worth. He says, that the statute de donis, by prescribing the action of for-medon, intended that the issue in tail should be put to his action, and if so, I have already admitted it as a discontinuance, for then there is a separation of the right from the estate. This is a strained construction, entirely unwarranted either by the letter or spirit of the act. It is true the formedon is prescribed ; hut ttiat is where the issue has lost the estate, and seek,? to recover it, not where he has not lost it and may enter. It is a remedial act, intended to redress the wrongs which were committed on those conditional fees $ and it would be strange, by a forced construction, to deprive them of a right secured to them, or if you choose given, de dono, by the statute, that is of entering whenever they have the estate It' is further to be observed, that w'hen the statute was passed, there was then no conveyance of an estate but those which operated by way of transmutation of possession, either such as carried the possession and estate with them, or such as recognized a previous possession and estate in the grantee.

I am therefore satisfied, that a warranty attached to an estate, created by a bargain and sale, made by a tenant in tail, is not a discontinuance, nor in this country does it work one, it does not work one for the inconvenience is the other way, for if she has right, and a discontinuance if worked against her, she cannot enter, she cannot bring an action of ejectment, for when- she cannot enter, she cannot bring ejectment; let her bring her formedon it is said, or some other real action. I should ask where, before what Judge, what attorney shall she employ, what Clerk apply to for process, for there is not a man, in North-Carolina who ever brought such an action as Lawyer, or tried one as Judge, or issued process as Clerk, or was present when one was tried, or knows any thing about the manner of proceeding, and all these difficulties the Defendant shall encounter, rather than put the Plaintiff to his action, upon the warranty against the heirs or executors of, I will add Michael Mill; and although in this particular case, there would be great difficulty in reaching the assets of Michael Rill, from the great length of time, if he left any, asid it does not appear that he did, yet the abstract question is now before us, and if it is a discontinuance in this case it is so in all. I mean not to express an opinion whether any of these old real actions can now be brought, it is sufficient in settling a question of convenience, that these difficulties are to be encountered. In truth it would be a mere mockery of justice to say to the Defendant, you have a right, but for the convenience of a person who does not show as yet that he has any title, you must resort to some of those old remedies. We must conclude that either she has great demerits or that her adversasy has great merits. The point made by her counsel upon the effect of her late recovery in ejectment against the now Plaintiff, to-wit: that she is remitted thereby to her former or rather better estate, were it necessary to express an opinion on it, I should say that she is not, for if a person who has lost the right of entry, by any means aC(juires a term for years in the land, there still remains a tenant of the freehold to answer to his action, the law is not reduced to the dilemma of saying either that he must abandon his right or sue himself, there still remains notwithstanding the term for years, a freeholder against whom he may bring his action, which puts an end to the claim for a remitter.

On the second point, the statute of limitations, I think that the English authorities as far as they go, even on the construction put on the statute of James, which is somewhat different from our statute, are in favor both of cumulative and successive disabilities. I know of no case in point, for the question did not arise either in the case of Doe v. Jessup, 6 East 80, or in Cotterell v. Dutton, 4 Taunton 826, in both those cases, more than ten years had elapsed after the disabilities had ceased ,• but it must be admitted, from what was said by the Court in the case of Doe v. Jessup, that the disability of the Plaintiff would have been disregarded. Although the right had descended from an ancestor who had been under a continued disability, yet in the case of Cotterel v. Dutton, the whole Court expressed themselves in very decided language to the contrary. Chambre Justice, saying, that the ten years do not run during the disabilities, and Lens, Sergeant, who argued for the Plaintiff, said that the case of Doe v. Jessup, was decided contrary to the apprehension of the profession. In Stowell and Zouch fPlowdcn) it was decided, after much argument, and not without a diversity of opinion on the bench, that when the statute begins to run, it continues to do so, notwithstanding any supervenient disability. If supervenient disabilities are entirely disregarded, the statute would run over them whether it had commenced running before they arose or not. The maxim would then be, that the statute disregarded ail supervenient disabilities — not, when it begins i& rm it continues to run, regardless of such disabilities. The maxim as it stands, presupposes a time when there was no disability; it then commences, and having com-rneuced it continues, for to prevent the operation of the enactment there must be a disability at the time the cause of action accrued. If there then was, the time allowed in the saving, looked to the removal of the disability j for disability, and not the lapse of time, was regarded in the saving — the lapse of time had been provided for in the enactment. To shew that disability, and not time, was regarded in the saving, a person who was only one day old when the cause of action accrued, has the same period after full age to assert his claims, as one who was twenty years and eleven months old. To any one who will read the case of Stowell v. Zouch (and that case has never been charged with favoring disabilities — it has indeed been many times struggled against on the other side) will perceive, I think, that the infant heir would not have been barred, had not the statute commenced during the time of his ancestor, that is, at one period after the cause of action accrued, his ancestor was not under any disability; the time in the saving then began to run, and but for that, the unanimous opinion of the Court would have been the other way 5 ami from analogy to the common law on the subject of disabilities, I think the Court would have been well warranted in such opinion.

At common law, a feme sole of full age is disseised — ■ and then taketh husband, and a descent is cast, neither she and her husband, nor she after his death, shall enter on the heir of the disseisor — for before her marriage siie was under no disability, and might have entered. But if an infant feme be disseised, and before full age take husband, and then a descent is cast, she shall after dis-eoverture, enter upon the heir of the disselssor, and so may her heir if she die during her coverture. Coke Lit. 246. It is admitted, that the analogy is not perfect, but it is sufficiently so to warrant I ho Courts in saying, that disability, and not time, is regarded in the saving of the statute.

The case of Stowell & Zouch, was decided on the sav-jng ¡n £fie statute of fines, and it was never formally applied, I believe, to the statute of James until the time of Lord Kenton, 4 Term, and in the casp in East, it was charged by one of the Court, that the words or death, were inserted in the statute of James, which is not in the statute of fines, and that it was inserted in the statute of James to do away all doubt, but even those expressions liad no effect in the case of Cotterell v. Dutton. They arc not in our statute, the statute of James also saves the right to the heirs, ours does not, it is given to them by construction, and very properly, for it surely could not be intended to make the right purely personal, and if it is right to modify it by construction in one particular, it is in another; it has been modified by construction in another part, and universally approved of: By the words of the statute, an infant has three years after arriving at full age, to make his entry or claim, should he die before he arrives at full age, is his right lost to his heir, or is the Defendant never to be quieted in his possession ? The case mentioned in the statute, arrival at full age, has never occurred — yet it was never doubted but that his heir, if under no disability, had the balance of three years'yet to run to assert the claim, and if under disability, I have endeavoured to shew three years after the disability was removed.

The first heir in tail after the death of the ancestor, who aliened Michael Hill, and who was the last person seised of the estate in tail, being when the right devolved on him an infant, and that heir dying before the disability was removed, leaving an infant heir, who became covert before full age, who having brought her action within three yeai*s after her discoverture, I am of opinion that she is not barred by the statute of limitations — that is,, that she comes within the saving of the act.

I shall not examine the question, whether the deed of 1746 contains a pure warranty, or only a covenant? This opinion is given on the supposition that it is a war-rantybut on this point I express no opinion.

I have said, in the foregoing part of this opinion, that lie who has the right of entry has the estate, and by a disseisin, the disseisee does not lose the estate. I should have added, unless at his election, which he makes by bringing an action for it — for by demanding the estate of another, he allows that the other has it, and thereby admits that he has it not himself.

I have viewred this case as if there was a warranty in the deed; whether the covenant amounts to one, or not, I have not deemed necessary to examine.

By the Court. — 'Let judgment be entered for the Defendant.  