
    Guion vs. Burton.
    JDesgent. Seizin in deed. Independently of any statutory provision upon the subject, it may well be doubted whether the rule of the common law ought to be maintained in this country — **That when a person acquires an estate in fee simple in land, by descent, it is necessary that he should enter on the lands to gain a seizin in deed, in order to transmit it to his heirs.** 3 Cruise’s Dig. Tit-29, c 3, $5; Littleton, §3.
    SAME. Rule of the Common law repealed. The act of 178-1, o 22, § 2, transmits to the heirs of an intestate owner, whatever right, title or interest he had in the inheritance of land, at his death, without his ever having had any seizin in deed. 4 Kent’s Com. 388, 3d lid.
    Ejectment for 389 acres of land in the vicinity of Mur-freesborough. The action was commenced on the 16th of April, 1831. The notice was served on Samuel Anderson, Robert Jetton, Willie Patrick and Joseph Newman. At October Term, 1831, Frank N. W. Burton was admitted to defend jointly with Anderson, Jetton and Newman, and Burton and David Wendell jointly with Patrick, instead of the casual ejector, upon entering into the common rule. The cause was tried at February Term, 1837, before his Honor, William T. Brown, judge of the 6th, sitting instead of Judge Anderson, of the 5th circuit, who was a defendant. The facts submitted to the jury was as follows.
    Military warrant, No. 138, was issued to Henry Wiri-born, of North Carolina, was located by John Drake, on on the 7th of February, 1784, and surveyed by B. William Pollock, deputy of Martin Armstrong, on the 15th of March, 1785. By patent, No. 164, founded on said warrant, and dated March 7, 1786, North Carolina granted to said Winborn 389 acres of land — on the waters of Stone’s river, so as to include a spring about three-fourths of a mile east of Col. Archibald Lytle’s, 7200 acre survey, “beginning at a sycamore tree, about eighty poles below the spring; then 240 poles to a mulberry tree; then south 259J poles to to a hickory, and three small oaks; then west 240 poles to a honey locust and mulberry; then north 259A poles to the beginning.”
    
      The grantee never took possession of the land.
    
    He had a daughter Elizabeth, his only child, born April 23, 1792. He died two or three years afterwards, that is, in the year 1794 or 1795, intestate. His daughter, and heir at Jaw, married John Guión, who is yet alive, about the 23d of April, 1808, at her age of sixteen years; and on the 21s'. of February, 1810, gave birth to a son, Henry L. Guión, the lessor of the plaintiff.
    Hardy Murfee the ancestor of the defendant, Burton’s wife, in clearing an adjoining tract, unintentionally included, in his enclosure made about 1809, an acre or two of the^ Winborn tract, of which enclosure he held possession till his death, but so far as appéars upon the record, without any title'.
    After that event, to wit, on the 12th of January, 1813, two of the heirs of Hardy Murfree filed their petition for partition ol his real estate in the county of Williamson, in which petition they describe the Winborn tract, as part of said Hardy Murfree’s estate. Commissioners were appointed to make the partition, who made the valuation and devision on the 31st of December, 1813, returned their proceedings to court on the 6th of January, 1814, on which day they were spread of record. Lot No. 4, of this partition, including the Winborn tract, by metes and bounds, was assigned therein, to Lavinia B. Murfree, wife of defendant Burton.
    On the 10th of January, 1815, Elizabeth Guión died intestate, leaving the lessor of the plaintiff her only son and heir, and her husband, John Guión, surviving.
    The defendant, Burton, took possession of the land, under the partition, about the 10th of January, 1815; and the question below was, whether he took possession before or after that date. For if he took possession before Mrs. Guion’s death, it was admitted below, in the argument previous to the motion for the new trial, that the statute of limitations began to operate in the life time of the mother of the lessor of the plaintiff, and that he, though an infant, would be barred in seven years. The jury thought that the possession commenced before the 10th of January, 1815,. and they accordingly found for the defendant.
    On the motion for the new trial, the question was made, whether Mrs. Guión, who claimed by descent from her father, the grantee, and who never made any entry upon the land, was vested with such a seizin as would enable her heir to inherit from her? 'His Honor overruled the motion, and gave judgment" on the verdict for the defendants. The plaintiff appealed in error.
    Ready & Meigs for the plaintiff
    said, the first cannon of descent, as laid down by Blackstone, is, “That inheritances shall lineally descend to the issue of the person who last died actually seized, in infinitum,-, but shall never lineally ascend.” 2 Comm. 208. Lord Coke, I Inst. 1! b., says it is a maxim that a man, that claimeth as heir in fee simple to any man by descent, must make himself heir to him that was last seized of the actual freehold and inheritance.” 2 Thomas Coke, 192, top page. Lord Hale, in the 11th chapter of his History of the Common Law, page 267, says — “The last actual seizin in any ancestor, makes him as • it were the root of the descent, equally to many in-intents, as if he had been a purchaser; and therefore he that cannot, according to the rules of descent, derive his succession from him that was last actually seized, though he might have derived it from some precedent ancestor, shall not inherit. And hence, he continues, it is, that where lands d.e? scend to the eldest son from the father, and the son enters and dies without issue; his sister of the whole blood shall inherit as heir to the brother, and not the younger son of the half blood; because he cannot be heir to the brother of the half blood: but if the eldest son had survived the father, and died before entry, the youngest son should inherit, as heir to the father; and not the sister, because he is heir to the father, who was last actually seized.”
    From which this rule is deduced — “That when a person acquires an estate in fee simple in land by descent, it is necessary that he should enter on the lands to gain a seizin in deed, in order to transmit it to his heir; for if ho has seizen in law only, it will not be sufficient.” 3 Cruise’s .Dig. Tit. 29, c 3, § 5; 4 Kent’s Com. 30; Jackson vs. Johnson, 5 Cowen’s Rep. 74.
    But where an ancestor acquires an estate, by his own act, that is, by purchase, he is, in many cases, allowed to trans-mil it to his heirs, though he never had actual seizin of if. himself. Cruise, loco cit. § 7, and Kent.
    Thus it seems to be a rule, that to make a man what Lord Hale calls the “root of the descent,” he must either make an actual entry, to wit, in cases, where the land descends or is devised (o him; or he must acquire his estate by some of those means, which are, per sc, equivalent to actual entry. In other words, he must be last actually seized: he must have a seizin in deed. This actual seizin, or seizen in deed may be acquired in two ways, as we see from the following passage from 1 Cruise, Tit. 1, Estate, in Fee, § 24.
    “Where a freehold estate is conveyed to a person by fe-offment, with livery of seizin; or by any of those conveyances, which deiive their effect from the statute of uses; he acquires a seizin in deed, and a freehold in deed. But where a freehold estate comes to a person by act of law, as by descent, he only acquires a seizin in law; that is a right to the possession; and his estate is called a freehold in law. For he must make an actual entry on the land to acquire a seizin, and a freehold in deed.”
    
      A government patent, or statutory deed duly proved and registered, would vest a man with a seizen and freehold in deed, and make him the “root of thedecsenl.” But if a government grantee, thus vested with a seizin in deed, die, leaving a daughter, to whom the land granted descends, and such daughter marry, have issue and die, it is submitted that, without an actual entry in her life time, she is not a “root of descent,” and her issue cannot claim by descent from her, nor her husband be tenant by the curtesy.
    This is precisely our case. • The land was granted by North Carolina to Henry Winborn, who, being thereby vested with a seizin in deed, and a freehold in deed, was a stock from which a descent might be derived. His daughter, Elizabeth, married, had issue, Henry L. Guión, the lessor of the plaintiff, and died, never having actually entered upon the land. We therefore contend, that Henry L. Guión cannot claim by descent from her, who was never clothed with a seizin or freehold in deed, but may claim by descent from ,his grandfather, who was so seized, and who was the person 
      last actually seized. And if we are right in this, then the court erred in the charge relative to the statute of limitations! since, as this action was commenced on the 16th of April, 1831, within a few days of the lessor of the plaintiff’s coming of age, he is within the saving of the statute, because there was no adverse holding in the time of Winborn, and of course the statute never began to run in his time.
    This doctrine is further illustrated in Burton’s Compendium, pi. 301, 302, and by the case of Doe vs. Keen, 7 T. R. 386, there cited by the editor, in which case, the authorities, bearing upon the point are collected by the counsel in argument. The counsel also insisted, that the North Carolina act of descents was not intended to alter the nature of the seizin required by the ancient law, to constitute a stock whence a descent might be cast.
    James Campbell & F. B. Fogg, for the defendant
    argued, that at the time of Henry Winborn’s death there was no adverse possession of the land, of course his grant drew to it the constructive possession or seizin of the land-, and this would be transmitted to the daughter Mrs. Guión on her father’s death. The argument of the plaintiff proves too much, for if Mrs. Guión was not seized, because she did not enter, and was invested with no right or title to transmit to her son, then the son for the same reason never had seizin, right or title, and of course cannot sustain an action of ejectment to recover the possession, but would be remitted to his writ of right. The principle contended for by plaintiff’s counsel only applies to cases where livery of seizin was necessary to complete the title; not to cases of titles acquired by conveyances under the statute of uses, or conveyances* under our act of 1715, or grants from the state, where the title is complete without livery of seizin. Green vs. Liter$ 8 Cranch 234. But an answer equally satisfactory to the position contended for by plaintiff, is to be found in our sta* tute of descents, which says, “where' any person shall die seized, or possessed, or have any right, or title or interest to any estate or inheritance of lands,” &c. This statute makes all rights or interests in lands descendible, and alters the rule of the common law, that an entry and seizin is nes cessaiy fo transmit the inheritance. See Act of 1784, c 22j Green vs. Liter, 8 Crauch Rep. 229; Barr vs. Gratz, 4 Wheaton, 221, 222. The New York statute, which repeals the principle, that sezinafacit stipitem is in the very words of our act of 1784. 4 Kent’s Com. 387.
    February 4.
   Green, J.

delivered the opinion of the court.

Henry Winborn, the grand father of the lessor of the plaintiff, died in 1793, leaving Elizabeth, then married to John Guión, bis only child and heir at law. In January, 1815, Elizabeth died, leaving the lessor of the plaintif, then an infant, her only child and heir at law. — The husband of Elizabeth survived her and is still living. This suit was brought in less than three years after the plaintiff’s lessor arrived at the age of 21 years.

The land in controversy was granted to the grandfather of the plaintiff, who never had it in actual possession: nor did the mother of the plaintiff ever enter into possession thereof. The defendant has had possession of the land from a period, commencing before the death of the plaintiff’s mother.

Upon this state of facts, the plaintiff insists, that the act of limitations is no bar to his right of recovery, because his mother, not having been seized of this land, could not transmit the inheritance to him, — and consequently, he takes as heir of his grandfather, and not of his mother.

The position assumed by the plaintiff’ is certainly the doctrine of the common law, — -viz. “That when a person acquires an estate in fee simple in land by descent, it is necessary that he should enter on the lands, to gain a seizin in deed, in order to transmit it to his heir; for if he has seizin in law only, it will not be sufficient” — 3 Cruis. Dig. Tit. 29 c 3 § 5; 2 Thomas’ Coke 192, top page; 4 Kent Com. 30, 356. If, therefore, the heir, on whom the inheritance had been cast by descent, died before he had acquired the requisite seizin, his ancestor, and not himself, became the person last seized oí the inheritance, and to whom the claimants must have made themselves heirs.

But this rule of the common law, founded in feudal reasons, that whoever claimed by descent, must make himself heir to the first purchaser, — and being heir to the person last seized, furnished presumptive evidence of that fact, — can have very little force, when applied to our modes of conveyance; and the circumstances of this country. Much of our land is waste and uncultivated, and in the actual possession of no one, — an actual entry on these lands would be often difficult, if not impossible; and if made, the evidence of it could not be easily preserved. — To a country such as this, a strict adherence to the common law doctrine of seizin, would be exceedingly inconvenient, and destructive of rights, which it is the office of the law to preserve. It is a settled point with our courts, that the title to wild uncultivated lands, draws to it the possession, so that an action of tresspass may be maintained by the owner, who is deemed to be in possession against any one entering on the land and cutting the timber. 4 Kent Com. 30.

This constructive possession continues, in judgment of law, until an adverse possession be clearly made out, 4 Kent 30. It may well be doubted, therefore, whether the common law principle, for which the plaintiff contends, independently of any statutory provision, ought to be maintained in all its vigor in this country.

This question, however, is put beyond doubt, by our statute of descents, 1784, c. 22, § 2, which provides, that, “when any person shall die seized or possessed of, or having any right title or interest in and to any estate of inheritance of land, or other real estate in fee simple, and such person shall die intestate, his or her estate or inheritance shall descend,” &c. By the statute the inheritance is transmitted, whether the person dying intestate had been seized in deed of the land or not. If the intestate had any “right, title or interest” in the estate, it is transmitted to the heirs of such person. These words necessarily included the interest Mrs. Guión had in the land in controversy, and which was transmitted, at her death to her son, the present plaintiff.

If this view of the effect of our statute required support, it is to be found in the construction chancellor Kent gives to the New York statute upon this subject. That statute contained provisions similar to those in our act 1784. He says, 4 Kent Com. 287, “ The New York revised statutes have wisely altered che preexisting law upon this subject; and they have extended the title by descent generally to all the estate owned by the ancestor at his death; and they include in the descent every interest and right, legal and equitable, in lands, tenements, and hereditaments, either seized or possessed by the intestate, or to which he was in any manner entitled, except leases for years, and estates for the life of another person,” New York Rev. Stat. Vol. 1, 751, § 1; 754 §27. The words in the statute, “any right, title or interest,” are as comprehensive as the words of the law of New York, and if the rule of the English law upon this subject be abolished in that state, it is in like manner abolished here, 4 Kent’s Com. 388.

Note. The statutes regulating DESCENTS — April, 1784, c. 22, October, 1784, c. 10, 1796, c. 13 — and the cases decided thereupon, present the following problems and their solutions.

1. Dying seized, without reference to the source whence the seizin proceeded, leaving issue. — In this,case, the estate descends to the sons and daughters as tenants in common. 1784, c. 22, s. 2, clause 1st.

2. Dying seized, by purchase, without issue. To the brothers and sisters of the whole and half-blood, viz, of the paternal and maternal lines, alike, as tenants in common. 1784, c. 22, s. 3, clause 1st, 1784, c. 10, s. 2, 1796, c. 13. JYicJiol v. Dupree, 7 Yerger, 415; Bullard v. Grijin, % Law Repository, 458; and the estate will open to let in after born brothers and sisters, Cutlar vi Cutlar, 2 Hawk,,324.

3. Dying seized, by purchase, or some original acquisition, other than descent or gift from a parent, not having any heirs of the body, nor any brother or sister, or the lawful issue of such—

If the father be living, to him.

If hebe dead,and the mother living, to her for life. Swann v. Mercer, 2Hay«\ wood,115; University v. Holstead, 2 Law Repository, 406; Wilsay v. Sawyer, 1 Murphey,.403; Roberts v. Jackson, 4 Yerger, 308; 10 Yerger, 451.

If neither be living, to the heirs on part of the father.

For want of them, to^ the heirs on part of the mother. 1784, c. 22, s. 7, clause 2d, 1784, c. 10, s. 3. 7 Yerger 423.

4. Dying seized, by derivation from either parent, (otherwise than by descent or by purchase from either,) without leaving any issue, or having any brother or sister or the lawful issue ^of such to the parent from whom the estate was :; derived in fee simple. If such parent be dead, to the heir3 on the part of such parent. 1784, c. 22, s. 7, clause 1st. Butler v. King, 2 Yerger, 115. 116, Swanny. fiercer, 2Haywood, 115 et seq. and 246, et seq.

We. think therefore, that the plaintiff was entitled as heir of his mother to the land in controversy, and that as the statute of limitations commenced running in her lifetime, it continued running notwithstanding his infancy, and forms a com-, píete bar to his recovery.

Affirm the judgment

5. Dying seized, by descent from either parent, without issue. To the brothers and sisters of the whole and half blood, on the part of the parent from whom the estate descended, and their issue. 1784, c. 22, s. 3, proviso 1st, 1784, c. 10, s. 2. Pipkin v. Coort 1 Law Repository, 103; 2 Murphey 231, S. C; Plam v. Martin, 1 Hawk 423; Butler y. King, 2 Yer. 115. In default of them — to .the brothers and sisters of the half blood on part of the parent from whom the estate did not descend. Id. and 1796, c. 13. Ballard v. pfill, SJVIurphey, 410; Seville v. Whedbee, 1 Devereaux* 160.

6. Upon the hypothesis in 3STo. 5, the nephews aud nieces of the propositus take with his surviving brothers and sisters, per stripem. 1784, c. 22, s. 3, proviso 2d; Lewis y. Claiborne, 5 Yerger,369.

7. Among lineal descendants and collaterals respectively, further removed from the propositus than grandchildren, and nephews and neices, the above rules apply, 1784, c.22, s. 4. That is— In cases where the intestate acquired the estate by descent, and the claimants are in equal degree of kindred, the blood of the first purchaser shall prevail. But where the claimants arenot in equal degree of kindred, then proximity of kindred shall be preferred, without any regard to the blood of the first purchaser.

And in all cases, where the intestate, acquired the estate, by purchase, proximity of kindred shall prevail, without giving any preference either to the pa-, ternal line, or to the blood ofthe first purchaser. 2 Haywood, 255,Brown, in argument.

Descent among illegitimates.

8-. 1. If a woman die intestate,11 without other than illegitimate children, they take her estate, real and perssonal, by the general rules of descent and distribution, 1819, c. 13.

2. If a bastard die intestate, without issue, his estate goes to his brothers and sisters, i. e. to his mother’s children.

3. A child of color cannot inherit the estate of its mother’s husband, unless ¿he mother or husband was a person of color, 1825, c. 15.

4. A private law legitimating a bastard as to his putative father, does not render either the father, or the collaterals from him, capable of succeeding to the bastard. MCormick y. Cantrell, 7 Yerger, 515: 4 Devereaux, 11, Drake v. Drake.

9. A posthumous child of a testator, not proviáedfor in the will, takes such share of his estate as would have fallen to it, in case of intestacy, — to be contributed by the devisees and legatees, in the proportion of their several devises and be-, quests to the whole estate. 1823, c. 28.  