
    *Orndoff v. Turman and Others.
    June, 1830.
    [21 Am. Dec. 608.]
    (Absent OOAI.TEB, J.)
    Estates Tail — Statute Abolishing — Effect on Estates Tail in Abeyance. — Tenant in fee tail general aliens in fee, by deed of lease and release with general warranty, in 1769: and tenant in tail lives till 1816, and then dies leaving issue: Hurj), that the statutes of 1776 and 1786 abolishing entails, barred the issue, and converted the estate tail, even though it were in abeyance, into a pure and absolute tee, and confirmed the fee simple to the tenant in tail’s alienee in fee.
    This was a formedon in descender, brought in the circuit court of Jefferson, by Turman and others against Orndoff, for 306 acres of land with the appurtenances.
    The demandants in their count, claimed as heirs of the body of Prudence Harbour, daughter and sole heir of the body of Magdalena Pusey, who was a daughter of John Vanmeter; and declared, that, the said Vanmeter being in his lifetime seized in his demesne as of fee of the land demanded, made and published his last will and testament, which was after his death, in the year 1745, duly proved and recorded; whereby he devised the land demanded to the said Prudence and the heirs of her body begotten; by virtue of which gift the said Prudence entered into and upon the land demanded, and was seized thereof, in her demesne as of fee and right, according to the form of the gift aforesaid, by taking the esplees to the value of one dollar, till 1769, when she conveyed the said land to Jacob Vandever in fee simple, and bound herself and her heirs of warrant and defend the same to the said Vandever and his heirs forever; and the said Prudence died in the year 1816; and from her the right to the said land, according to the form of the gift aforesaid, descended to the demandants, as issue of the body and heirs of the said Prudence.
    The tenant put in a general demurrer to the count, in which the demandants joined. And he also pleaded the general plea, defending his seizin, as of fee and right &c. and putting himself on the grand assize, and praying recognition *to be made whether he had greater right to hold as he held, or the demandants to have &c. And the demandants in like manner put themselves on the grand assize, and prayed recognition to be made &c.
    The parties agreed that the assize should be empaneled, and should find a special verdict, before the judgment of the court should be given on the demurrer. Whereupon the assize was empaneled, and found a special verdict, stating this case:
    John Vanmeter was, in his lifetime, seized of the land in fee, and died so seized in August 1745, having first duly made and published his last will and testament, whereby (inter alia) he devised as follows: “I devise to my son Abraham Vanmeter and his heirs lawfully begotten, a certain tract of land &c. provided there be no heirs male or female of my said son or sons hereafter mentioned, live to arrive to the age of twenty-one years, that then after the decease of my said son or sons aforesaid, or their heirs, that then their part of land to be equally divided among my surviving dev-isees hereafter mentioned.” And “I give and bequeath unto my daughter Magdalena the sum of twenty shillings as her full legacy &c. And I do devise unto her heirs lawfully begotten of her body a certain tract of land [which was the land demanded in this action] to be held and enjoyed by the heirs of my said daughter, under the limitations and restrictions, according to the devise to my son Abraham Vanmeter’s heirs.”
    The testator’s daughter Magdalena, the wife of one Pusey, had issue at the date of the will one daughter, named Prudence, and died leaving this and no other child. Prudence entered upon and held the land, under the above recited devise thereof to her in her grandfather’s will. She married Elijah Harbour in 1763, who died in 1768. A.nd she, then, a widow of full age, by deed of lease and release, dated the 1st and 2d September 1769, bargained and sold and conveyed the land to Jacob Vandever, with a covenant that she was seized of an estate of inheritance in fee simple, *and general warranty against her and her heirs and all persons whatsoever.
    The tenant claimed under Vandeve-*.
    Prudence Harbour died in 1816. The de-mandants were the issue of her body, and her heirs in parcenary according to the existing law of descents of Virginia.
    And the question referred to the court was, Whether the law upon this case, was for the demandants or for the tenant?
    The circuit court held, that the law on the demurrer, and on the special verdict, was for the demandants, and gave them judgment for the land demanded in the count, and ascertained by a previous survey. The tenant appealed to this court.
    Wickham for the appellant,
    submitted the question to the court, Whether Prudence Pusey took an estate tail under the will of her grandfather? His argument proceeded on the supposition that she did.
    Supposing the right stood unaffected by the statute abolishing entails and converting them into estates in. fee simple, and the statute repealing all english statutes, and especially the statute de donis; and supposing the formedon to be the proper remedy; these demandants are not entitled either to the right or the remedy. They are the heirs of Prudence, the donee in tail, only by force of the statute of descents of 1785; and that statute makes them heirs only of that to which she had title at her death; of that which descended from her. Now, the very ground on which the demandants claim right, must be that she had no title in her at her death; that she had parted with all her estate and interest; and that her issue are entitled per formam doni. The statute of descents does not' recognize descents in tail, which had long before been abolished, but only descents and heirs in fee simple. The heir in tail, if any such there can now be, must be the heir in tail at common law, or by the statute de donis; the eldest son, namely, of the donee in tail; he alone, if any body, has the tight, and is entitled to this remedy of formedon in descender. *JBut the right and the remedy were both given by the english statute de donis; and that statute was repealed along with the whole of the english statute law, by our statute of 1792. 1 Rev. Code, ch. 40, 'i 3, 4, 5, p. 137. The 4th section of this statute does indeed provide, that all rights arising under any english statute, at any time before the commencement of that act, shall remain in the same condition in all respects as if the act had never been made; but this proviso cannot save the right claimed here, as a right arising under the statute de donis before the commencement of the repealing act. In whom was the right now claimed in 1792? Not in the donee in tail (as the demandant’s counsel will say) for she had parted with every scintilla of her right: not in Vandever her grantee, as they must also contend: and surely not in the heirs of the body of the donee in tail, for she was then living, and nemo est hasres viventis. The right, it will be said, was in abeyance. If so, when did it commence or arise, within the meaning of the proviso of the general repealing statute? When it accrued; when the donee in tail died; that is, after the commencement of the repealing act, for she lived till 1816. Neither does the saving, in the 5th section of that general repealing act, of all writs remedial and judicial given by the english statutes, save this remedy by formedon to these parties; for the saving of the writs remedial and judicial, can only be co-extensive with the rights such writs were given to enforce. If the right was not saved, neither, of course, was the remedy. Suppose the demandants had died before their mother; one cannot imagine any right, which they could have died entitled to, in fact or in contemplation of law. Surely, therefore, neither the right nor the specific remedy given by the statute de donis, was saved to these demandants, as a right preexistent to the general repealing statute of 1792.
    At any rate, formedon did not lie. It never lay where the party had a right of' entry. The conveyance by the donee in tail, passed only what was her own to dispose of; what she had a right to convey. This the demandants themselves *are bound to maintain: they must maintain, that she had no right to convey away the interest of her issue in tail; in other words, that her conveyance enured to assure the estate to the vendee only during her life. Their rights, then, accrued at her death. If, therefore, they have any title, they had also a right of entry, at the time they brought the formedon. If it be supposed, that the conveyance of the donee in tail with general warranty, worked a discontinuance; yet the warranty could only work the discontinuance, when it descended upon the heirs. The warranty of the donee in tail descended on her heirs in tail, and their right accrued, at one and the same instant of-time. Here is a supposed discontinuance, coeval with the supposed accruing, of a right. If a general warranty works a discontinuance, it is only because it descends on the heirs. The warranty here descended on heirs, made heirs, not by the statute de donis, or performam doni, but by the statute of descents of Virginia ; heirs in fee simple: and descending on such heirs, and working a discontinuance of the estate tail, it bound those heirs: it estopped and barred them.
    The demandants have no manner of right. The statute of 1776, abolishing entails, annihilated every right to which they could possibly pretend; and if that statute did not, the statute of 1785 did.
    The statute of 1776 provides, that any person who now hath, or hereafter may have, any estate in fee tail' in lands in possession, or who now is, or hereafter may be, entitled to' any such estate tail, in reversion or remainder, expectant on any estate for life or lives, howsoever created, shall from henceforth, or from the commencement of such estate tail, stand seized in fee simple &c. Acts of October 1776, ch. 26, § 2; 9 Hen. stat. at large, p'. 226. The argument, on which the appellees rest their hopes, I suppose, is this: that the statute uses only the present and future tenses, not the past; it speaks only of every person who now hath (that is, at the time of the enactment) or hereafter may have, an estate tail; the donee in tail, in the present instance, had no ^estate tail in her, at the time the act was passed, having conveyed in fee simple by deed with general warranty several years before; the estate tail was at that time in abeyance: therefore, the statute applies not to her, or any person in her situation, or any estate tail in the situation this was. The argument is a mere verbal criticism. That is not the way to expound such statutes as this. The object and policy of the statute was to abolish all estate tail; to prevent perpetuities of property, and to that end to cut off the issue in tail. Can it be reconciled with such an object and such a policy, to preserve an estate tail, which happened to be, as this is supposed to have been, in abeyance? The statute abolished all estates tail without exception, or it stopped short of its purpose.
    Here the donee in tail conveyed the fee simple, when she had not the fee to convey; and, afterwards, during- her life, the right she claimed to convey, she was empowered by the statute to convey. This is the true view' of the case. If tenant for life convey in fee, and afterwards the reversioner convey the reversion to him, this enures to the benefit of the grantee of the tenant for life. So, if a mortgagor sells and conveys, and then obtains a defeazance of the mortgage, this enures to the benefit of the purchaser from the mortgagor. These cases, to be sure, are not the same with the present: they are only analogous: but the same principle of justice equally applies to both.
    If the demandants have the right they claim, on the ground on which they claim it, on the only ground on which they can pretend to it, namely, that an estate tail in the particular circumstances in which this was placed at the time of the enactment of the statute of 1776, is not within the act; then the provisions of that statute never touched it, and never can reach it. They must recover it as an estate tail, hold it as an estate tail, and so continue to bold it-forever. A like verbal criticism of the statute will preserve to them a perpetual estate tail: for, adhering to the letter, the words “hereafter may have any estate tail,” import the having such *estate by conveyance or gift hereafter made ; and the entails already created and then existing, which were to come to the tenants hereafter, are, in the literal meaning of the statute, such as come in the way of reversion or remainder, not such as come by descent. If we adhere to the letter, the statute affects not any estate tail that should come by descent; and it will leave these demandants an estate tail, to hold as such; and as to them the policy of the statute will be wholly defeated. Their counsel may say, that so soon as they get it, the statute will convert it into a fee simple in their hands. But why? not because the letter of the statute, but because the policy of it extends to the case. The policy of the statute extends tp the whole case, as well as their part of it: the policy of the statute cuts them off. Why should their right, supposing it was in abeyance, be less an object of reprobation and destruction, that the rights of issue in tail that were not in abeyance?
    The statute of 1785 removes all doubt. 1 Eev. Code, ch. 99, l 22, p. 368. This statute does not, like that of 1776, speak of the ‘ ‘persons who now have or hereafter may have estates tail:” it enacts in the broadest terms, that every estate which was, on the 7th October 1776, an estate in fee tail, shall be deemed from that time to have been, and from thenceforward to continue, an estate in fee simple.” How, was the estate tail here claimed, in existence in October 1776 or not? The demandants are obliged to maintain that it was in existence: but then they will say, it was in existence only in contemplation of law; it was in abeyance. Yet the statute of 1785 makes no distinction between estates tail existing in contemplation of law, and estates tail existing in fact; between estates tail in abey-anee, and estates tail any otherwise existing' or circumstanced. Its words are broad enough to embrace all; its policy condemns all estates tail alike; it converts all estates tail into fees simple; it annihilates the rights of all issue it tail, and unfetters the property.
    It will be said, in respect to this statute likewise, that it did not operate immediately upon this estate, which was *then in abeyance, but waited till it ceased tobe in abeyance; and when the demandants, as heirs in tail, shall recover it, then and not till then the statute will convert it into a fee simple in their hands. But, clearly, the only future estates tail, which are provided for as such by this statute, are those limited since October 1776; so that this statute converted this estate tail into fee simple, as one existing in October 1776, or it never can so convert it at all.
    When an estate tail is in abeyance, where and how does it exist? We are told, it lies in expectancy till the issue of the tenant in tail becomes by his death his heirs of the body; then it ceases to be in nubibus; then it becomes a material sensible object. Still the question recurs, what, where and in whom, is its present existence? I say, in the tenant in tail, who has in himself, during his life, all those his heirs, in expectancy of whom the estate tail is lying in abeyance. Therefore, in the present case, the estate tail was converted by the statutes, into a fee simple in the donee in tail: and then this statutory enlargement of her rights, enured to the benefit of her alienee in fee; and her warranty descended upon and barred her heirs claiming to the heirs under the statute of descents, that is, only as heirs of a fee simple inheritance.
    The case of Nelson v. Harwood, 3 Call, 394, is not exactly like this; but I think it a stronger case for the issue in tail; and the reasoning of the court, certainly, is applicable to the present and all like cases. Cases of the same kind with that, and with this, cases without number, have occurred. My experience enables me to say, with intire confidence, that the effect of the statutes to cut off the issue in tail, never was doubted till now: the grantee of tenants in tail aliening in fee before 1776, have held the property without question : and to affirm this judgment, were to unsettle numerous titles hitherto regarded as indisputable.
    P. C. Pendleton, Stanard and Heigh, for the appellees,
    said this court had decided, that Prudence Pusey took under *the devise in her grandfather’s will, but declined to decide, whether she took any or what estate of inheritance. Pendleton v. Vandever, 1 Wash. 381. They should assume, for it jvas perfectly .clear, that she took an estate tail under the devise, and was tenant in tail, when in 1769 she aliened to Vandever, under whom the tenant claims.
    The rights of the issue in tail were preserved by the laws then in force, against all alienations of the tenant in tail. In England, the issue might be barred, by fine or by common recovery, or by lineal warranty descending on the issue with assets, or collateral warranty without assets. 7 Wils. Bac. Abr. Warranty, F. G. H. pp. 232, 3 , 4. But, in Virginia, by a statute of 1705, re-enacted in 1710 and 1748, the issue could only be barred by a special act of assembly, except as to estates tail not exceeding ^200 sterling in value, fpr the barring of which a particular mode was provided, in the nature of a writ ad quod damnum. Acts of 1710, ch. 13, 'i 4; 3 Hen. stat. at large, p. 517; 1748, ch. í, l 14, 15, 16; 5 Id. 414.
    ' Different modes of alienation by tenant in tail, had different effects in regard to the rights, and, by consequence, the remedy, of the issue. A mere bargain and sale, or lease and release, did not take away the entry of the issue; and, as he might enter, when upon the death of his ancestor his right accrued, so he might maintain ejectment; But a feoffment with livery of seisin, or a deed of bargain and sale or lease and release with warranty, worked a discontinuance, took away the entry of the issue, turned his interest into a right, and put him to his formedon in descender, called his writ of right. Harg. Co. Hitt. 330, a, note 1.
    It is material to ascertain the precise effect of the conveyance of Prudence, the tenant in tail, to Vandever, by her deed of lease and release with warranty in 1759. The effect of the conveyance, by the common law, is so well settled by authority, that there can be no question about it. The conveyance divested the tenant in tail of all her interest in the land; worked a discontinuance of the estate tail, ^which thenceforth till the death of the tenant in tail, remained in abeyance; and passed to the alienee Vandever, not an estate for the life of his grantor, nor the fee tail, but a fee simple defeasible by the issue in tail. Harg. Co. Litt. (j 649, 650, fo. 345, a. Id. 330, a, note 1; Gilb. Ten. 119; Pig. on Recov. 9, 10; Case of Fines, 84; Seymour’s case, 10 Rep. 95; Stone v. Newman, Cro. Car. 429; Machell v. Clark, 2 Ld. Raym. 779; S. C. Com. Rep. 119, and 7 Mod. 18; Tyrrel v. Mead et al., 3 Burr. 1703; Ne-ville v. Rivers, 7 T. R. 276; 1 Wms. Saund. 250, note 1. As to Walsingham’s case, Plowd. 547, the case itself (if, indeed, it did not turn on a mere default in pleading) only establishes, that feoffment by tenant in tail of rhe gift of the crown, could not divest the estate tail as against the crown, or bar or divest the reversion of the crown; and the dictum there, “that there is no ancient book that warrants the opinion of Littleton, that the entail is in abeyance,” seems to be the objection to Littleton’s opinion referred to by Coke in his commentary on Littleton, £ 649, and said to be of no weight; and the authority of this case of Walsingham, is denied in Sheffield v. Radcliff, Godb. 300; S. C. Hob. 334. The dictum, ascribed to lord Holt in Salkeld’s report of Machell v. Clark, 2 Salk. 620, “that if tenant in tail convey in fee, the estate tail is not in abeyance, but in the alienees,” is a mere verbal mistake: what lord Holt said was, that the inheritance was not in abeyance, as appears plainly from the other reports of- the case, before cited. If it be supposed, that the common law was altered, in respect to the effect of alienations in fee by tenants in tail, by the statute of 1748, ch. 1, ? 14, prohibiting fines and recoveries and all other acts of tenants in tail, whereby to cut off or defeat the entail; that statute will be found on the least examination, not to interfere at all with the effect of aliena-tions by tenants in tail, except so far as to prevent them from cutting off the issue or defeating the entail; and the case of Glee-son’s heirs v. Scott, 3 Hen. & Munf. 278, is directly in point and conclusive, that, notwithstanding that statute, *alienations in fee by tenant in tail, divested all his estate, and passed a base fee to the alienee defeasible by the issue in tail.
    Seeing, then, that Prudence, the donee in tail, had by her alienation in fee with warranty, divested herself of her estate tail and all manner of estate in the land, discontinued the estate tail, and vested in Vandever, the alienee, a fee simple defeasible by the issue in tail; and that the estate tail was in abeyance, awaiting the vesting thereof in the heir in tail at the death of the tenant in tail; the question remains, Whether either the statute of 1776 or that of 1785, for abolishing entails and converting them into fees simple, could have had any effect to enlarge the estate of the donee intail for the benefit of her alienee, when she had no estate whatever in herself, or to convert the estate of her alienee from a base defeasible fee simple into a pure and absolute fee?
    The statute of 1776 provides, that “any person who now hath or hereafter may have an estate in fee tail in lands in possession &c. shall from henceforth, or from the commencement of such estate, stand ipso facto seized in fee simple.” The expressions “any person who now hath an estate tail in possession,” plainly import, in common acceptation, the having, at the present, an estate tail in possession, or what is the same thing, an unobstructed right to the estate and to the possession thereof; and the legal import of the words is the same. The phrases “have an estate,” “has an estate,” and the like, occur frequently in our own statute book, and, in every instance, import an actual, vested, subsisting interest. 1 Rev. Code, ch. 98, | 1, p. 359; ch. 113, $ 29, p. 453. So the eng-lish statute of wills provides, “that every person having manors &c. shall have power to give &c. ” and it has been adjudged, that an estate which has been turned to a right is not devisable. 4 Wils. Bac. Abr. Legacies and Devises, B. p. 248; Brett v. Rig-den, Plowd. 343. So, the statute of uses provides, “that all and every person and persons that have or shall have any use in fee ^simple &c. shall from henceforth stand and be seized, and be deemed and judged in lawful seizin estate and possession, of and in the same manors &c. ” And Bacon, in his reading on the statute, says, the word seized excludes chattels and rights ; Law tracts, 335. Seizin, estate and possession, imply not a possession in law only but a seizin in fact, not a title to enter into the land but an actual estate; Id. 338. Uses suspended by disseisins, at the time of the passage of the statute, were not executed till a regress of the feoffees; Id. 332, 5. The words of our statute of 1776, are particularly clear and strong: any person who now hath an estate tail in possession, shall henceforth stand ipso facto seized in fee simple. How could any person who did not then have an estate in fee tail, who did not then stand seized in fee tail, thenceforth stand ipso facto seized in fee simple? A mere right is not an estate; the word estate implies right and seizin conjoined. If, therefore, we are to gather the meaning of this statute from its words, it is quite obvious, that it did not operate to enlarge the estate tail in Prudence, the former tenant in tail, for she had no estate tail and no estate of any kind in her at the time, and could never after have the same estate tail with which she had parted, re-vested in her; and that it did not directly affect the estate held by her alienee, Van-dever, since the estate he held certainly was not an estate tail, but a base defeasible fee simple. And how the statute could operate through the tenant in tail, upon or in respect of an estate which she had not, to enlarge or convert the estate of her alienee from a fee tail to a fee simple, when he held no fee tail, and already held a fee simple, passes our comprehension. The words of this statute are not at all ambiguous; but if they were, they should receive a construction as near to the rule and reason of the common law as may be, and by the course which that observes in other cases. 6 Wils. Bac. Abr. Statute, I. 4, p. 383. Now, by the rule and reason and course of the common law, Prudence, the tenant in tail, after her conveyance in 1769, was incapable of taking a release of the reversion *in fee which remained in the heir of the donor. Co. L/itt. | 455, 6, 7, fo. 268, a. And, pari ratione, this statute of 1776, which may with great propriety be considered as a release of the reversion of the donor to the tenant in tail, could not give her the fee simple absolute: she had no estate which the statute could act upon: she could not thenceforth stand seized, possessed and entitled, as the act required.
    It is said this argument consists in a ■mere verbal criticism. We own, that it rests on the supposition, that the language of the statute is the surest and best expositor of its meaning. But, is the present case within the statute, upon any fair or allowable equitable construction? or within its policy? “By an equitable construction a case not within the letter of a statute, is sometimes holden to be within its meaning, because it is within the mischief intended to be remedied: the reason for such construction is, that the lawmaker could not set down every case in express terms.” The question ought to be, Did the lawmaker intend to comprehend the case? If he did, the court applies the statute to it; if he did not, it can never be a question, whether or no, the law ought to have provided for the case. 6 Wils. Bac. Abr. Statute, I. 6, p. 384. The judicial power of giving an equitable construction to a statute, especially an equitable construction enlarging the statute, is a very delicate one, and ought to be exercised with caution: it extends not to the length of justifying the judges, under colour of expounding the law, to make law, or even to provide for a casus omissus of the lawgiver. If the case now before the court, did occur (as most probably it did occur) to the framers of the statute of 1776, and they had really intended to comprehend it, they would have used words that would comprehend it; and the use of words that exclude it, shews that it was excluded by design: if such cases did not occur to them at all, the most that can be said, is, that here is casus omissus in the statute. But, is the present case within the policy of the statute? within the mischief intended to be remedied? In other *words, was there the same reason for giving the fee simple to the alienee of tenant in,tail, who had aliened in fee before the statute was passed, that there was for giving the fee simple to the tenant in tail in possession, in reversion or in remainder, at the time? and was the omission to do so only an oversight? The policy of the act of 1776, the mischiefs it was intended to remedy, are declared in the preamble; that fhe perpetuation of property in families by gifts in tail, tended to deceive fair traders, who gave credit on the visible possession of such estates, discouraged the holders thereof from taking care and improving the same, sometimes did injury to the morals of youth, by rendering them independent of and disobedient to their parents, and had employed very much of the time of the legislature in docking them. Now, none of the reasons for enacting the statute, have any more application to the case of persons to whom tenant in tail had previously aliened in fee, than to any other defeasible estate whatever; and the legislature could have had no motive to embrace the case within its enactment, which would not have induced it to make all manner of defeasible estates indefeasible in the hands of the holders. On the other hand, the motive for excluding such cases, is very obvious. In Virginia, alienation in fee by tenants in tail, not looking to the legislature for sanction or confirmation, were on the face of them very suspicious transactions. It was not so in EJngland, because there the tenant in tail was master of the inheritance, in fee, by reason of his power to dock the entail at pleasure. But the case was different here: the tenant in tail could by no act of his own, make good his convej’ance in fee: his issue could only be barred by special act of assembly; and that could only be obtained by settling other lands or estate on the issue. And such having been the law of the land from 1705, and being (we must presume) universally known to be the law; the parties to a conveyance in fee by tenant in tail, without authority of a special act of assembly, must have known, that the estate of the vendee was defeasible after the death of the vendor; *and the inference was unavoidable, either that the consideration was regulated according to the imperfection of the title, or that the conveyance (especially if covenants for good title in fee and general warranty were su-peradded) was made to assume that shape by some unfair practice, or for some sinister purpose, or in contempt and disregard of the existing laws and policy. Here was reason enough, presenting itself at the first blush to the mind of the legislature, so to frame the statute of 1776, as to leave all such cases to the regular action of the laws under which they arose.
    It is objected, that if the demandants be now entitled to recover this estate per formam doni, because the statute did not apply to an estate tail so circumstanced as this was at the time of the enactment, the statute will not apply to it in the hands of the demandants when they shall have recovered it, and it will remain an estate tail, unalterably, forever; for that the provision of the statute, that any person who hereafter may have any estate'tail, shall stand seized in fee simple, relates to gifts in tail by future conveyance or devise. But the words embrace all estates tail that should be afterwards acquired, without reference to the manner of acquisition: and thus, in order to found this objection, it is endeav-oured to restrict and narrow the meaning of these words, with the same violence, which is to be exerted in stretching other words beyond their fair import. Suppose Prudence, the tenant in tail, after having aliened in fee to Vandever, in 1769, and thus discontinued the estate tail, had died before the statute of 1776 was enacted: can it be doubted, that her heir in tail might have recovered the estate, after the statute was passed? that he could have so recovered it, only as heir in tail, per formam doni? as an estate tail, upon which the statute would operate to convert it into a fee simple in his hands, so soon as it' was recovered?
    The provisions of the statute of 1785 are supposed to go beyond those of the statute of 1776. Yet the president Pendleton, in Carter v. Tyler, 1 Call, 184, comparing the statute of 1776 with that of 1785 and the revised act of *1792, and in answer to an argument which rendered the comparison necessary, said, “I am of opinion, that these acts [of 1785 and 1792] malre no alteration, but only express in other words, and those not so strong, what is in the former law [of 1776].”
    The statute of 1785 provides, that ‘ ‘every estate in lands and slaves, which, on the 7th day of October 1776, was an estate in fee tail, shall be deemed from that time to have been, and from thenceforward to continue, an estate in fee simple:” In whom? not in a person, who, though once tenant in tail, had parted with every scintilla of estate and right before 1776; not in a dis-seisor or discontinuee; not in a person, who, by the alienation in fee of the tenant in tail, held a fee simple, base and defeasi-ble indeed, but still a fee; but, in the hands of such person as on the 7th October 1776, held the estate in fee tail an estate in possession, reversion or remainder. In our case, Prudence, the donee in tail, had no estate tail in her in 1776, and no estate of any kind; for she had divested herself of all estate and interest: Vandever had no estate tail in him, but a defeasible fee simple ; the estate tail had been discontinued; it was in abeyance. The mere right which remained to the issue in tail, in expectancy till the death of the tenant in tail, was not an estate in 1776 or in 1785, on which the statutes could operate: neither can those statutes operate till the seizin shall be re•covered to the right, by the issue in tail.
    The statute of 1785 further provides, that “all estates, which before the 7th day of October 1776, by the law, if it had remained, unaltered, woqld have been estates in fee tail, and which now, by virtue of this section, are and will continue estates in fee simple, shall from that time and henceforth be discharged of the conditions annexed thereto by the common law &c. ” Now, suppose the law had remained unaltered;, then, no fee tail would have been in Prudence, the donee in tail In October 1776, and the same fee tail never could have been re-vested in her; no fee tail would ever have-been vested in Vandever, her alienee; and the *estate tail never could be vested in any one, till it was recovered by the heirs in tail.
    The statute of 1785, then, in respect to the present case at least, if not (as president Pendleton thought) in respect to every possible case, was exactly tantamount to the statute of 1776.
    The case of Nelson v. Harwood, 3 Call, 394, is not an authority to govern the decision of this case. (Here the counsel entered into a minute examination of that case.) There has been one case of the same kind with the present, adjudged in North Carolina, Wells v. Newbolt, Cam. & Norw. Rep. 375, and another in New Jersey, Denn e. d. Hinchman v. Clark & al., 1 Coxe’s Rep. 340r in both of which the decisions sustain the arguments for the demandants in our case, that the rights of the issue in tail are not affected by the statute abolishing entails.
    If the heirs in tail of Prudence the donee in tail have right, the demandants, who are the issue of her body and her heirs according to the course of descents at the time of her death in 1816, and not the eldest son who would have been the heir in tail according to the course of descents at common law, are the persons entitled to the right. The precise idea of an estate in tai.1 general, is “an estate that shall go, upon the death of the donee or tenant, to his heirs being at the same time the issue of his body;” arg. in Shelley’s case, 1 Rep. 103, b. It is a mutilated or truncated inheritance from which the heirs general are cut off; 2 Black. Comm. 112, note m. Blackstone (Id. 201), says, “All the rules relating to purchases whereby the legal course of descents is broken or altered, perpetually refer to the settled law of inheritance, as a datum of first principle universally known, and upon which their subsequent limitations are to work. Thus, a gift in tail, or to a man and the heirs of his body, is a limitation that cannot be perfectly understood, without a previous knowledge of descents in fee simple. One may well perceive, that this is an estate confined in its descent, to such heirs alone of the donee, as have *sprung or shall spring from his body; but who those heirs are, whether all his children, both male and female, or the male only, and among the males, whether the eldest, youngest or other son alone, or all the sons together, shall be his heirs; this is a point that we must result back to the standing law of descents in fee simple to be informed of.” And as it is an inflexible rule, that nemo est haares vivenfis, this settled law of inheritance, this standing law of descents in fee, necessarily refers to the law of descents in fee simple, at the time of the death of the tenant in tail, as ascertaining who are the issue of his body that are also his heirs. Thus we And, that if lands in Kent are entailed, they go to all the sons in parcenary; if lands held in horoug'h-english are entailed, they go to the youngest son. 1 Wils. Bac. Abr. Borough-English, p. 532; 3 Id. Gavelkind, p. 364, 9. Again, if gavelkind lands be disgaveled, they afterwards descend to the heir by the common law, being the issue of the donee iri tail. Burridge v. Earl of Sussex, 2 Ed. Raym. 1292. 'True, it does not appear in the report of that case, that the lands entailed had been disgraveled subsequently to the entail; but the circumstance that nothing is said on that head, shews that it was regarded as immaterial. By statute 34 & 35 Hen. 8, c. 26, i 91, 127, it was provided, that “all lands &c. in Wales should be english tenure, and not partible among heirs male according to the custom of gavelkind,” which it seems prevailed in North Wales. Gavelkind descent o"f lands in Ireland, existed as an incident to the custom of tanistry till the 5th year of James I. In the reign of Anne, there was an irish statute making the lands of papists descendible according to the custom of gavelkind; but by another statute 17 & 18 Geo. II. the descent of the lands of papists was again reduced to the course, of the common law. Harg. Co. Eitt. I 265, p. 175, b, note 4, 176, a, note 1. But we no where find even a suggestion, that entails created during one law, continued after the change of the law, to descend according to the course of the law at the time of their creation. The absence of cases to *that effect seems conclusive; for it cannot be, that there are entailed estates in Wales or Ireland, that, descend to all the sons, by reason of their having been created at a time when gavelkind was the course of descent. It would be too remarkable not to appear in the books of reports, or in the works of writers on the law.
    It is said, the course of descent of this ■entail is no wise affected by the statute of descents of 1785, re-enacted in 1792 and 1819, which provides, that “where any person having title to any real estate of inheritance, shall die intestate as to such estate, it shall descend,” &c. (1 Rev. Code, ch. 96, $ 1, p. 355.) That Prudence, the donee in tail, had no title at the time of her death: that it is obvious, that the statute has no reference to descents in tail, but only to descents in fee simple: and, therefore, that the descent in tail in this case can only be governed by the common law, which makes the eldest son heir in tail. We answer; if it were important, it might well be denied, that the statute of descents provides exclusively for descents in fee simple: for, suppose Prudence had died before the statute of 1776 abolishing entails, it is clear her eldest son would have been entitled, and might have recovered the fee tail, as heir in tail, and then the statute would have converted the fee tail into a fee simple in his hands: but if the eldest son had died after the statute of descents took effect in 1787, without having recovered the land, we apprehend there can be no doubt, that all his children would have been entitled, and must have joined in a formedon to recover the estate tail. To put this idea in another light, let us suppose the statutes of 1776 and 1785 docking entails, had never been passed (and our argument supposes what is tantamount, that those statues do not operate on his case); no one, we presume, would contend, that the statute of descents of 1785, did not alter the descent of the entailed estate ; that the demandants here would not be the persons entitled to recover: no one would attempt to draw a distinction from the statute of descents, between a case where the ancestor had discontinued and where he had *not. But grant that the statute of descents provides solely for the descent of estates in fee simple; the conclusion would be a non sequitur. The effect of that statute is, to ascertain that the demandants here are the heirs at law of Prudence, the donee in tail; and being so, and being at the same time the issue of her body, they come within the clear legal operation of the words creating this estate; they are the heirs of her body entitled per formam doni. If the eldest son only had sued, it would have been objected, and the objection would have been insurmountable, that though he was the issue of the body of Prudence, he was not and never had been her heir.
    Formedon was clearly the proper remedy. The estate tail had been discontinued; turned to a right; the right of entry taken away ; and therefore, the issue was put to his formedon in descender, which is his writ of right. Harg. Co. Litt. 330, a, note 1, before cited.
    It is objected, that the statute of 1792 repealing all english statutes, repeals the statute de donis, under which the demand-ants claim ; and that this case is not within the proviso of that statute, which saves all rights arising under english statutes before its commencement. As to the first branch of this objection, so far from’its being true that the statute de donis is repealed, the statutes for docking entails preserve it in force, for the purpose of ascertaining what is an estate tail, in order that it may be converted into a fee simple. Then, as to the time when the right here asserted commenced, nothing seems clearer, than that it commenced with the creation of the entail by Vanmeter’s will in 1745; that the estate tail was discontinued by the alienation in fee by the donee in tail in 1769; that the fee tail was in abeyance, thenceforth till the death of the donee in tail in 1816; and that, therefore, though it accrued to these particular demandants, only upon the death of the donee, it had commenced long before the general repealing statute of 1792.
    If the right was saved bj' the proviso contained in the 4th section of that act, it cannot be doubted, indeed it is not denied, *that the remedy by forme-don'is saved by the 5th section. And it is remarkable, that the revised statute of limitations of 1819, as well as that of 1792, recognizes the formedon as a subsisting remedy, and limits it to twenty years next after the title or cause of action accrued. 1 Rev. Code, ch. 128, § 1, p. 487.
    
      
      The principal case is cited, in Watts v. Cole, 2 Leigh 663.
    
   CARR, J.

This cause was argued with a research and an ability worthy of its importance and its novelty; for to us it is new, though to our forefathers, both the legal doctrines and the form of action, were of common and familiar use. I shall not attempt to discuss the whole subject; but shall consider those leading points only, which seems to me, to govern the case.

Prudence, it is admitted, was tenant in tail. The demandants claim as her issue per formam doni. It is obvious then, to examine how that claim stands affected by the statutes which our legislature has passed on the subject. It may not be amiss, however, to premise a few remarks as to estates tail.

At the common law, when lands were given to a man and the heirs of his body, he was considered as having a fee simple conditional, which would revert to the donor, if the donee had no heirs of his body; but if he had, this was such a performance of the condition, is, rendered his estate absolute ; at least, he could alien; he might forfeit; he might charge the land with rents, or other incumbrances, which would bind the issüe. But if he did none of these things, the course of descent was regulated by the form of the gift; the land would go to the heirs of his body, and in default of such, would revert to the donor. To prevent this, it was usual for such tenants, so soon as they had performed the condition by having issue, to alien the land, and afterwards re-purchase, taking an absolute estate which would descend to their heirs general. To put a stop to this practice, the nobles and great barons, anxious to perpetuate their possessions in their own families, procured the passage of *the statute of Westminster 2nd, 13 Ed. 1, ch. 1, de donis conditionalibus; which gave birth to estates tail. That familj' law, as Pigot calls it, produced many and serious mischiefs, as we are told by writers on the subject, and also by some of the most eminent judges of the english bench. Thus Blackstone (2 Comm. 216,) says, “children grew disobedient, when they could not be set aside: farmers were ousted of their leases, made by tenant in tail: creditors were defrauded of their debts: innumerable latent entails were produced, to deprive purchasers of the lands they had fairly bought: treasons were encouraged: so that these estates were justly branded, as the source of new contentions, and mischiefs unknown to the common law, and almost universally considered, as the common grievance of the realm.” Still the power of the nobles prevented the repeal of the statute; and after suffering under it long, common recoveries first, and then fines, were brought to bear upon it; and these, together with some other causes, have so weakened, its force, and narrowed its range, as almost to bring back the subject to the ground it occupied under conditional fees at the common law. In the case of Martin v. Strachan, Willes’ Rep. 451, 2, lord C. J. Willes (in 1744) delivering the opinion of all the judges to the lords, and speaking of common recoveries, says, “a common recovery is a conveyance on record, invented to give tenant in tail an absolute power to dispose of his estate in fee simple —I beg your lordships’ patience a moment longer, to give you an account of the true origin and nature of these recoveries. As I said before, entailed estates, by the statute de donis, were made unalienable, and neither the issue, nor the remaindermen could be barred, and this was at first considered as a very wise provision, and great encomiums were made upon this statute. But it was found by experience in a very little time, that this statute had produced very great inconveniences; inconveniences to the crown; inconveniences to the public; and to manj' private persons: to the crown, as it prevented forfeitures, and greatly increased the power of the *barons: to-the public, as it was prejudicial to trade and commerce, to have estates always continue in the same families, without even a power of raising money upon them; and to private persons, to have their estates so fettered, that they could not make provision for younger children, nor raise money on their estates, though their necessities were never so great. ’ ’ He then goes to speak of the mode of bringing in recoveries in the time of Edward IV. In Atkyns v. Horde, 1 Burr. 60, 115, lord Mansfield, speaking on the same subject, says, “The sense of wise men, and the general bent of the people of this country, have ever been against making land perpetually unalienable. The utility of the end, was thought to justify any means to attain it. Nothing could be more agreeable to the law of tenures, than a male fee unalienable. But this bent, to set property free, allowed the donee, after a son was born, to destroy the limitation, and break the condition of his investiture. No sooner had the statute de donis repeated, what the law of tenures said before, that the tenor of the grant should be observed, than the same bent permitted tenant in tail of the freehold and inheritance, to make an alienation voidable only, under the name of a discontinuance. But this was a small relief. At last, the people having groaned for about 200 years, under the inconveniences of so much property being unalienable; and the great men, to raise the pride of their families, and (in those turbulent times) to prevent their estates from forfeitures, preventing any alteration by the legislature: the same bent threw out a fiction in Taltarum’s case, by which tenant in tail of the freehold and inheritance, or with consent of the freeholder, might alien absolutely. Public utility, adopted and gave a sanction to the doctrine, for the real political reason, to break entails; but the ostensible reason, from the fictitious recompense, hampered succeeding times, how to distinguish cases, which were within the false reason given, but not within the real policy of the invention.” I cite these authorities (and might adduce "many more) to shew, that at an early period, the mischiefs of the statute had been *felt, and remedies found to mitigate them, which had become settled rules of law, long before the establishment of this colony ; so much so, that the right to suffer a recovery or levy a fine, was considered one of the inseparable incidents of an estate tail; and an attempt to create such estate, divested of that power, would have been as impotent, as the effort to divest tenant in fee of the power of alienation. «

In Carter v. Tyler, 1 Call, 182, Mr. Pendleton says, the fine and recovery at an early period was sanctioned by the courts of England, “and so became as much a law of that country, as the statute itself. Our ancestors [he continues] brought hither with them, both laws as a rule of property; and the fine and recovery might have been used here, if the forms could be preserved, until the legislature should interpose to prohibit them.” This it did by an act passed in October 1705, and again in 1710, reserving to the legislature the sole power of docking entails. This power was exercised by acts passed on each particular occasion : these acts gave a real recompense, instead of the fictitious one by fine and recovery; and were rather a change of the land on which the estate tail was to operate, than a destruction of that estate. There are several other acts of the colonial assembly shewing the spirit of that body for preserving entails; of these, Mr. Pendleton, in the case of Carter v. Tyler, gives a succinct but clear account. It may seem a little strange, at first sight, that our assembly should be inclined to cherish what had been found so mischievous in the mother country: but we must recollect, that we were then a recent people, forming a distant province of the empire; that the spirit of commerce had never visited our shores; nor was that loftier spirit yet awakened which afterwards gave birth to our revolution. In the case already referred to, Mr. Pendleton says, “In .the revised law of 1748 the prohibition of fines and recoveries, and permission of writs of ad quod damnum, were continued till the revolution. That event having produced a new order of things, this great subject came before the legislature, in October 1776, *under a view of all its legal circumstances, from the common law and the statute de donis, down to that period. The subject of discussion ■was, whether they should restore the fine and recovery, which was objected to on account of its fictitious nature, and the trouble and expense attending it; but the principal objection was, that it would permit the tenants to continue what was considered as a mischief; and that those who possessed the large estates, would have an inclination to continue them in their families. They, therefore, resolved to cut the gordian knot at once, and ipso facto to vest the fee simple in those who then had, or should in future have, an immediate beneficial interest; that is to say, an estate in fee tail in possession, or a remainder or reversion in tail, after estates for life or lesser estates, unfettering the estates of all future interests, depending in creation, upon these estates tail.” Let it be recollected, that Mr. P. is speaking here of matters with which he was familiarly acquainted ; that he was a prominent actor in the busy and eventful scenes of the revolution ; a member of the assembly which passed the- act of 1776 docking entails, and also one of the three revisors who drew the law of 1785 on the same subject.

We will look now more particularly at this act of 1776. It seems to my mind very difficult to read it, and resist the conviction, that it was meant to cut up estates tail, root and branch; to make them all ipso fa cto estates in fee; to destroy ‘1 all rights, title, interest and estate, claim and demand of the issue, remainderman and reversioner;” “unfettering the estates (as Mr. Pendleton strongly expresses it) of all future interests depending in creation upon those estates tail.” And this conviction is much strengthened, when we look at the nature of the subject, and the state of things at the passage of the law. We had just cut ourselves loose from a monarchy, and established a republican form of government. This was the first assembly which met under the new constitution, and it became its duty, to remodel the laws, and adapt them to the genius of our infant republic. In this ^labour, it was natural that the law of entails should attract the earliest attention; a law, mischievous in its effects upon the general interests of society, and peculiarly hostile to the experiment we were then making.

*Look at the preamble, and note the object and policy of the statute, as there declared: Can we suppose, that wise and patriotic legislators would intentionally leave a single fragment existing, of a law, the evils of which they so strongly depict? In Willion v. Berkley, Plowd. 232, 11 Rep. 73, 6 Bac. Abr. 384, we are told, that “such construction ought to be put upon a statute, as may best answer the intention which the makers had in view, for qui hasret in litera, haaret in cortice.” Again, under the same head in Bacon, and vouched by the highest authorities, it is said, “The intention of the makers of a statute, is sometimes to be collected from the cause or necessity of making a statute; at other times, from other circumstances. Whenever this can be discovered, it ought to be followed with reason and discretion in the construction of the staiute, although such construction1 seem contrary to the letter of the statute.” Again, in Stowel v. Zouch, Plowd. 366, 10 Rep. 101, “A thing which is within the intention of the makers of a statute, is as much within the statute, as if it were within the letter.” Now, the statute in question makes tenant in tail, in possession, reversion or remainder, ipso facto, tenant in fee simple. In the act of 1785, which equally bears on this case, which was the work of the same hands, and which one of its makers says was not more extensive than the first law, the idea is thus expressed: “Every estate in lands or slaves, which'on 7th October 1776, was an estate in fee tail, shall be deemed from that time to have been, and from thenceforward to continue an estate in fee simple.” Much of the learning and ability of the argument were employed to prove, that Prudence, by her conveyance with warranty, had divested herself of the estate tail; that it was not vested in Vande-ver, because from the nature of the estate it could not *be, and because also the deed to him purported to

convey the fee; that it could not be in the issue, because they could have no right, whatever during the life of their mother, for nemo est haares viventis; but that, in truth and in law, the conveyance and warranty of Prudence operated a discontinuance, and put the estate tail in abeyance: and the conclusion from the whole was, that neither Prudence nor Vandever, nor the issue, having an estate tail in possession, reversion or remainder, the case was not reached by the statutes of 1776 and 1785, and must be considered as if they had never passed. I have examined this whole doctrine with my best care; and though I feel the highest respect for the counsel who so ably and zealously laboured these points, I must say, that taking all the premises as established, it is clear to my mind, that the conclusion does not follow. I concede, therefore, that the conveyance of Prudence at once worked a discontinuance, and put the estate tail in abeyance; that is, there was no person who could claim title, but the estate still existed, “in the intelligence, remembrance and expectation of the law.” If the laws destroying entails did not reach it, it must be either because an estate in abeyance cannot be barred, or because, the legislature did not mean to bar it, or because, meaning to do it, they have not used words, which will effect their meaning. As to the first; in Chudleigh’s case, 1 Rep. 135, b, 135, a, Gawdy, justice, said, “That in divers cases, a thing in abeyance may be barred and destroyed; as if tenant in tail be disseised, and releases to the disseisor; now, Littleton says, the estate tail is in abeyance; yet it may be barred by common recovery, in which tenant in tail is vouched.” In Mildmay’s case, 6 Rep. 42, a, it is said, “So, Hil. 14 Eliz. it was resolved by all the justices of the common pleas in Copwood’s case, that if there be tenant in tail, the remainder to the right heirs of J. S. and tenant in tail suffers a common recovery, J. S. being then alive, it shall bar the remainder which was in abeyance and consideration of law.” 2 Roll’s Rep. 217, 221, and Palm. 139. Thus it is clear, that in England, an ^estate tail, though in abeyance, might be barred and destroyed by a common recovery ; a fictitious proceeding founded on no statute law, but growing out of public convenience, and the decisions of the courts; a proceeding to which the issue, the remainderman, or the reversioner, were no parties, and which gave them no recompense. Can it then be doubted, that such estates may with us be destroyed by a solemn law enacted by the sovereign, authority? Assuredly not.

But, if the legislature had this power, did it intend by its laws to exercise it? With respect to estates tail in possession, reversion or remainder, it is admitted that it did. These were the prominent points, the great interest; and these are cut up by the roots; but it is contended, that here the law stopt, and that the possibility of a future interest in the issue, on which the demand-ants, in the case before us, stand, was either not seen, or, if seen, permitted to remain undisturbed. On the same ground, in Carter v. Tyler, it was insisted, that a contingent remainder was not within the operation of these acts. What was the answer of the court? The president says, “And what is the general aspect of Mr. Washington’s reasoning? The issue, who have the first and most important interest, are defeated; and a contingent remainder, which may nevér take effect, and which I call an estate in the clouds, is preserved. I believe it may be truly said, that no statute ever proceeded upon such a system.” But passing by the absurdity, which such a construction would fix on the wise lawgivers and profound statesmen, who laid the foundations of our government, it seems to me, that these laws themselves furnish the strongest evidence that was intended to destroy every possible interest of the issue. In the preamble, one of the mischiefs stated as the “injury to the morals of youth, by rendering them independent of, and disobedient to, their par-entsthis has direct reference to the issue. Another part of the preamble states, that “the former method of docking estates tail by special laws, employed very much of the time of the legislature, and was burthen-some to the public, and to individuals:” this shews, *that the intention was, to perform by one general law, the office of those special acts. And what was that office? to turn the estate tail into a fee simple, and bar the issue, remainder-man, and reversioner; and in many of these special acts, we find that the estate tail was already in abeyance, the tenants having executed and recorded deeds of conveyance with warranty to the purchasers, which are recited in the preamble of the act. It is true, these acts gave the issue ■&c. a recompense: but that was a mere creature of the legislative will; they had just the same power to bar them without such recompense. Again, if we look into those special acts (of which I have examined some thirty or forty) we shall find in every one of them, a saving of the rights, interests, title &c. of all persons, other than those claiming under the will, or deed creating the estate tail. So, in this act of 1776, we find a saving to all persons &c. other than the issue, and those in reversion, and remainder, all such right, title, interest, and estate, claim and demand, as they might claim if this act had never been made. Now, I ask, why except the issue from this saving, if it had not been intended to bar their right, title, interest, claim and demand? words, which cover every possibility of interest. It is clear to me, then, that the intention of the law was utterly to destroy the interests of the issue.

But can we give this intention effect? I have already shewn from authority, lhat intention is the governing principle, the essence of the law. “Every estate [says the statute] which, on 7th October 1776, was an estate tail, shall be deemed from that time to have been, and from thenceforward to continue, an estate in fee simple. ’ ’ Now, I ask, was not the estate, in the case before us, an estate tail on 7th October 1776? You tell me it was in abeyance: admitted, but that did not extinguish it, nor change its nature; it still existed in contemplation of law, and was still an estate tail though in abeyance. Littleton, Coke, all the books, speak of estates tail in abeyance. In the extract from Chudleigh’s case before cited, it is said “if tenant in tail be disseised, ^Littleton saith, the estate tail is in abeyance.” This estate tail then was within the operation of the act; which destroyed it, extinguished the right of the issue, and thereby enured to the benefit of Vandever, the vendee of Prudence. Is this effect too much to claim for a law, which has been appropriately called a great general common recovery, when we see by the cases cited, that a special and individual common recovery will destroy an estate tail though in abeyance? and when we know, that these recoveries are mere inventions to convert estates tail into fees, which was the direct object of our laws?

But, suppose it were admitted, that an estate tail in abeyance, is not within the express letter of our laws; is it not within the equity? We are told, “By an equitable construction, a case not within the letter of a statute, is sometimes holder: to be within the meaning, because it is within the mischief for which a remedy is provided. The reason of such construction is, that the lawmaker could not set down every case in express terms.” Co. Litt. 24, b, 6 Bac. Abr. 386. Now, all will agree, that the great mischief which our law meant to remedy, was the fettering, the tying-up of property. We do not know, whether the cases were many or few, but every case like the one before us, would thwart the policy of the law, and continue the fetters on the land, at least one generation longer, when it was meant to cut them all loose at once. Look at the effects in the case before us. The law passed in 1776; the tenant died in 1816; and it is contended, that during all this time the land was tied up; nay, that it is so to this hour, for the demandants, if they recover, must recover an estate tail.

There are several other points, which were urged with great force against the claims of the demandants, as 1. that the repeal of the statute do donis in 1792, during the life of the tenant in tail, when the issue had no vested interest, swept from under them the foundation of their claim : 2. that they claim as issue in tail, and yet all the heirs of the body are joined; 3. that they claim under our statute of descents, and *yet claim an estate unknown to and unprovided for by that statute. On these points I give no opinion, choosing to place the case solelj’ upon the abolition of the right by the statutes.

I think the judgment should be reversed, and judgment entered for the tenant.

CABELL, J.

The question is, Whether the entail of the lands in controversy was docked by the statute of 1776, so as to bar the issue of Prudence Harbour?

If the entail be not thus docked, it must be owing to the effect of her deed to Van-dever, upon the estate tail which she held in the land before the execution of that deed; for, were it not for that deed, the case would come within the strictest letter of the statute, and the issue would, unquestionably, be barred. I shall endeavour, therefore, to ascertain the effect of the deed, before I inquire into that of the statute. And this will, necessarily, lead me into a brief view of the origin of estates tail.

Estates tail grew out of the operation of the act of Westminster the second upon fees conditional at the common law ; which were estates given to a man and the heirs of his body, and so called, because of the condition expressed or implied in the gift, that the land should revert to the donor, if the donee had no heirs of his body, but if he had, that it should then remain to the donee. And, as in other cases, when a condition is once performed, the condition is thenceforth intirely gone, and the thing to which it was before annexed becomes absolute and unconditional, so in this case, as soon as the grantee had any issue born, his estate was supposed to become absolute by the performance of the condition; so far, at least, that he might alien it, and thereby bar not only his own issue, but the reversioner. 2 Black. Comm. 110, 111. And the birth of the issue was not held to be a condition which suspended the fee from vesting, immediately, by the gift; for if he aliened before the birth of issue, it was not only no forfeiture, but, if he afterwards had issue, it was a bar to them. Plow. 239; 2 Inst. 333; Harg. Co. Hitt. *326, b, note 1. The statute de donis was made for the purpose of taking away this power of alienation. It declared that the will of the donor should be observed, and that tenements given to a man and the heirs of his body, should, at all events, go to the issue, if there were any; or if none, should revert to the donor. 2 Black. Comm. 112. Blackstone remarks, that “upon the construction of this act of parliament, the judges determined that the donee had no longer a conditional fee simple, which became absolute and at his own disposal, the instant anj issue was born; but they divided the estate into two parts, leaving in the donee a new kind of particular estate, which they denominated a fee tail; and investing in the donor, the ultimate fee simple of the land, expectant on the failure of issue; which expectant estate is what we now call a reversion. And hence it is that Littleton tells us, that tenant in fee tail is by virtue of the statute of Westminster the second.”

This statute, however, was eluded by the effect which the courts, in the reign of Edward IV. gave to the fictitious proceedings in common recoveries, which, when’suffered by tenants in tail, were held to be an effectual destruction of estates tail. “And these recoveries, however clandestinely reduced, are now,” says Blackstone, (Ibid, 117,) “become a most common assurance of lands; and are looked upon as the legal means by which tenant in tail may dispose of his lands and tenements.” And the effect of such conveyance is to bar, not only the issue, but the remaindermen and re-versioner. And, in the reign of Henry VIII. it was enacted, that a fine, duly levied by tenant in tail, should bar the issue and all claiming under such entail. But there are other conveyances by tenants in tail, which do not bar the issue; and it is important to our present purposes, that their precise effect should be ascertained.

Conveyances by grant, by bargain and sale, lease and release, covenant to stand seized, and by release and confirmation in enlargement of an estate, only operate on the right of the party conveying. They, therefore, transfer only the *right, that is, the estate which the party has a right to convey. Hence they are called rightful conveyances, (Harg. Co. Litt. note 1, § I,) and sometimes innocent conveyances, because, in the language

of Littleton, (£ 600,) “they do no hurt or damage to other persons who have right therein.” It was formerly doubted, whether the alienation of tenant in tail, by any of these conveyances, passed any thing more than an estate during his life. But it is now definitively settled, by the authorities cited in the argument for the appellees, that such alienation by tenant in tail, passes to the- grantee, bargainee &c. an estate of inheritance, a base fee simple, which is unimpeachable during the life of tenant in tail, and which will moreover last as long as the estate tail shall continue, unless it shall be avoided by those who have right to avoid the same; and that until it shall be so avoided, such estate has all the incidents of a fee simple. See also Thomas’s Co. Litt. p. 92, note A. and p. 124, note G. 1. The estate of the grantee, although it be unimpeachable during the life of the tenant in tail, and may last as long as the estate tail shall continue, may, nevertheless, be avoided at any time after the death of tenant in tail, by the mere entry of the issue; and it determines absolutely and ipso facto, by the failure of the issue in tail, under the rule, cessante statu primitivo, cessat derivativas. 1 Prest. on estates 436, 7, 2 Id. 462, 3. But a conveyance by feoffment is attended with livery of seizin. It therefore operated on the possession, and effected a transmutation thereof; and as possession and freehold were synonymous terms, no person being considered to have the possession of lands but he who had himself, or held for another, at least an estate of freehold in them, a convej'ance which transferred the possession, must necessarily be considered a,s transferring an estate of freehold, or, to speak more accurately, the whole fee. A feoffment, therefore, conveying the whole fee, and not merely the right or estate which a party had a right to convey, was called a tortious conveyance. Harg. Co. Litt. 271, b. note 1, § I. But tenant in tail had an estate of inheritance ^(although a particular estate) even after the statute de donis. “Ifence, [says Butler], if he made a feoffment, it did not, during his life, effect or prejudice the issue. Thus his alienation was, primarily, a lawful transfer; the alienee came in by right, and his estate could not be impeached during the life of the donee. In conformity to the established rule of the common law, that wherever any person acquired a presumptive right of possession, his possession was not to be-defeated by entry, however slender or unlawful the title of the grantor himself might be. the statute de donis did not nullify the alienations of the donee in tail, but enabled the issue to defeat them by the. formedon in the descender.” Harg. Co. Litt. 326, b. note 1. The estate transferred by the feoffment of the tenant in tail, is therefore, something more than that which was transferred by his mere bargain and sale, lease and release &c. It is not a base fee that may be defeated, at any time after the death of the tenant in tail, by the mere entry of the issue, and must necessarily determine on the failure of issue; but it is a fee simple defeasible only by the action of the issue, or of those in remainder or reversion. For the estate of the tenant in tail, and of those in remainder and reversion, is turned, by the feoffment, into a right of action. And this effect of the fe-offment of tenant in tail, upon the estate tail, turning it into a right of action, so that it cannot be regained by mere entry, is what is called a discontinuance; and while the discontinuance remains in force, the new estate, the fee simple which passed to the feoffee, will subsist until avoided by the action of the issue &c. or until the remitter of the issue in tail &c. or the determination of the discontinuance. (Preston on estates, ubi supra). Fines and recoveries, when they operate as mere assurances, without barring the entail, effect a discontinuance. And although the bargain and sale, or lease and. release of tenant in tail, without warranty, does not affect the interest of the issue &c. and cannot, therefore, work a discontinuance, yet a warranty annexed to such a conveyance, will, in the general, work a discontinuance as “effectually as a feoffment. Co. Litt. 328, a, 329, b, 330, a, note 1, and Doe v. Prestwidge, 4 Mau. & Selw. 178. The expression of Coke (Co. Litt. 329. a,) “it is not a warranty only that maketh a discontinuance, but the warranty and the descent upon him that right hath together,” induced me to think, at one time, that the discontinuance did not take place until the actual descent of the warranty, and, of course, until the death of tenant in tail. But farther examination and reflection have caused me to change that opinion, and I am now inclined to believe, that the warranty operates an immediate discontinuance in all cases, where, if the tenant in tail were to die at the moment of making the conveyance, the obligation of the warranty, and the right to the estate tail, would devolve upon the same person. I think so, because, in all such cases, the warranty operates as wrongfully in relation to the issue, as the mere feoffment of tenant in tail, and, indeed, more so: for while the feoffment only drives the issue to his action, the warranty goes farther, and will rebut him, if he have assets by descent. This opinion seems to derive strength from the consideration, that all the cases put by Littleton, to shew that warranty alone will not effect a discontinuance, are cases where, at the time of the conveyance, the heir to the warranty, and the heir to the estate tail, were not the same persons. In the case now before us, at the time of the execution of the deed from Prudence Harbour (she then having issue) the same person would, unquestionably, have been heir to the warranty, and to the estate tail. I am, therefore, of opinion, that that deed operated a discontinuance, immediately; or, in other words, turned it to a right; or, to speak more accurately, to a right of action.

Thus far, it will be seen that, I agree intirely to the preliminary propositions of the counsel for the appellees.

How far the right to the estate tail, is. after a discontinuance, and during the life of tenant in tail, placed in abeyance, I feel myself unable to decide. The books are very contradictory on this point. Littleton 'i 649, 650, and Coke’s “commentary on them, seem to me to indicate, that it is in abeyance. But there are strong opinions to the contrary. In Sheffeild v. Ratcliffe, Hob. 335, it is said, that ‘ ‘the feoffment of tenant in tail, gives away all the estates the tenant in tail feoffor had, as concerning himself, or anjr benefit that he may receive. But, as concerning his issue inheritable to the entail, and for their good, there remains in him a right of that entail, by force of the statute of Westm. 2, for the good of those that are saved by that statute against his alienation.” Again (Ibid. 336,) “a tenant in tail hath the whole estate tail and all the right of it in himself, and may finally and totally bar it, as well against the issue, as against himself, by a common recovery, notwithstanding this statute; but by a feoffment he could not, by reason of this statute. And, therefore, that chief and mere right [which though it be discontinued is not barred by the feoffment] remains where it was not aliened; for it is not in his power by that kind of conveyance.” Again (Ibid. 338,) ‘that there is still a right in the tenant in tail against this feoffment, appears in that he hath still power to bind it more finally and totally, by his fine or recovery, if he pursue them rightly.” And (Ibid. 339,) “Littleton was confounded in himself that made an abeyance of a tenant of totum statum suum, and yet made it but an estate for life.” And in the case of Stone v. Newman, in the exchequer chamber, Cro. Car. 427, six of the judges of England said, that “although a feoffment by tenant in fee simple gives all estates, interests and rights, yet it is not so in case of a feoffment made by tenant in tail; because the estate tail is an incident inseparable to his person and blood, and cannot be transferred to any other.”

But whether the right to the estate tail, after a discontinuance, and during the life of tenant in tail, be in abeyance, or lie dormant in the tenant in tail, it is absolutely certain, that the tenant in tail, after such discontinuance, has the right and the power, with the assistance and co-operation of his alienee, to suffer a common recovery, which will enure to “'corroborate and confirm the estate of his alienee, and will bar the issue &c. Sheffeild v. Ratcliffe, Hob. 334; Lincoln College case, 3 Rep. 58, b; Chudleigh’s case, 1 Rep. 135, 6; per Gawdy justice; 1 Prest. Con. 138.

Thus stands the law in England, and thus stood the law in this country, before the act of 1776; except that fines and recoveries were prohibited as early as 1705, and were never afterwards tolerated. But, although estates tail were not permitted to be barred by fines and recoveries, other modes were introduced for accomplishing that effect; namely, writs of ad quod damnum where the estate was of less value than £200. sterling; and private acts of assembly, in each particular case, where the estate was of greater value. An examination of our statute book will shew, that these private acts were applied to •docking estates tail, in every variety of circumstance or situation, in which a common recovery could be resorted to in England, for that purpose. Sometimes the entail was docked in favour of the tenant in tail himself, by vesting the entailed lands in him in fee simple; Nov. 1769, ch. 73, 8 Hen. stat. at large, 448. Sometimes it .was docked in favour of a person to whom the tenant in tail had previously contracted to sell it; February 1772, ch. 77, 78, Id. 641, 643. The act of Nov. 1769, ch. 77, Id. 455, presents a very striking case, bearing a strong resemblance to the case before us. It is as follows: Richard Johnson, being .seized of lands in tail, with divers remainders over, conveyed the same by indenture bearing date June 7, 1744, to John Robinson, who, with others claiming under him, remained in possession until November 1769. It being then discovered that Johnson had only an estate tail in the lands, and that the purchasers were likely to be disturbed in their title, and the said Johnson and his family involved in law suits on that account (from which it is manifest that he sold with warranty) an application was made to the legislature, in the year 1769, (twenty-five years after the sale, and while the discontinuance worked by the warranty was still in force); whereupon an act was passed docking *the estate tail, and vesting the entailed lands in the purchasers under Johnson.

I come now to the construction of the statute of October 1776, docking entails. Its title is “an act declaring tenants of lands or slaves in taille, to hold the same in fee simple;” and its preamble shews, that it was enacted in lieu of the former methods of docking such estates tail. The counsel for the appellees contend, that this statute does not embrace the case of an estate tail that was discontinued, so long as the discontinuance remains in force. They say that the words of the statute “hath, or hereafter may have an estate tail in any lands or slaves in possession,” and the subsequent words, “shall from henceforth, or from the commencement of such estate taille, stand ipso facto seized,” &c. require that the tenant in tail, in whose favour the statute is to operate, should, at the time, be seized of an estate tail in possession &c. If I felt myself bound to give the statute a strict and technical construction, I confess I could not deny the correctness of this position. But what would be the consequence of such a construction? If it be adopted, it will not only exclude the case of a tenant in tail who had discontinued the entail, and the case of an estate tail abated by the entry of a stranger, on the death of tenant in tail, but it would also exclude the case of a tenant in tail who was disseized. For, a tenant in tail disseized is certainly not seized of the estate tail. Strictly and technically speaking, even his estate is turned to a right: a right of entry. 1 Prest, est. 20, 21; Goodright v. Forester, 1 Taunt. 578. And if the statute did not operate on the estate of tenant in tail, who had discontinued or who was disseized, so as to turn it into a fee simple at the very moment of the enactment, when did it operate on it so as to produce that effect? It was contended in the argument, that the estate tail must be restored by the entry of the tenant in tail, in case of disseizin, 'or by the formedon of the issue or remainderman, in the case of a discontinuance, and that when it was thus restored as a fee tail, the statute would instanter act upon it and convert it ‘'-into a fee simple. I can perceive nothing in the statute to justify this pretension. It alludes to two periods only for its operation; namely, the time of the passage of the act, and the commencement of the estate tail. But according to the construction contended for, it did not operate, at the time of its passage, upon an estate tail that was, at that time, turned into a right of entry or a right of action. And if it did not operate on it at that time, it cannot operate on it at the time the fee tail is restored by entry or action; for that is not the commencement of the estate tail. It had commenced long before, and was never annihilated. The most that can be contended for is, that it was suspended or in abeyance, by the discontinuance. The removal of the discontinuance is the restoration, or reanimation of the estate tail, not its commencement. It, certainly, is not the “commencement” of the estate tail, according to a strict construction of the statute; and the advocates of a strict construction, have no right to insist upon it as to one clause, and upon a liberal construction as to another. Here then, would be two classes of estates tail, those restored by entry, and those restored by action, on which the statute would never operate; to which we might add those cases where the estate tail was under a mortgage at the date of the act. Can any man read the preamble of this statute, and believe that this was the intention of the legislature? It is a law founded on great principles of national policy. It is a highly remedial statute, intended to remove great political and moral mischief. So far from being restricted to a rigid technical construction, according to the letter, I feel myself compelled to construe it according to its spirit, and thus to bring within the scope of its operation all cases that come within the mischief intended to be provided against. The division of estates, into estates in possession, remainder and reversion, comprehends every estate whatever ; so far at least as relates to the time at which they confer the right of enjoyment. 1 Prest, est. 23. When, therefore, the legislature declared that all persons having any of these descriptions of estates tail, should *from thenceforth be seized thereof in fee simpre, it thought not of technicality; it thought not of the particular situation in which persons having rights to estates tail, might be accidentally placed, in relation to those estates : it was contemplating, in all their extent, the various mischiefs which it was its object to remove; it intended, that all estates tail should be thenceforth converted into fee simple.

Mr. Pendleton, than whom no man was better acquainted with the history of our legislation, informs us, in Carter v. Tyler, that “the great subject of discussion, in the legislature in the year 1776, was, whether they should restore the fine and recovery, which was objected to on account of its fictitious nature, and the trouble and expense attending it; but the principal objection was, that it would permit the tenants to continue what was considered as a mischief; and that those who possessed the large estates, would have an inclination to continue them in their families. ’ ’ It cannot be supposed, that the legislature was ignorant of the nature of common recoveries, and of the power of the donee in tail who had discontinued the estate tail, to suffer a common recovery with the assistance and co-operation of the person who had the freehold; and that such recovery would operate to corroborate and confirm the estate of his alienee, and to bar the issue in tail, and the reversioner and remain-derman. It cannot be believed, that it had forgotten its own practice of docking estates tail, by private acts, in favour of the persons to whom the tenants in tail had sold with warranty; and that the effect of such docking was to vest the fee simple in the alienee. When, therefore, we perceive, in the preamble of the statute ot 1776, the deep conviction of the legislature of the evils of estates tail, and its strong determination to annihilate them, even in opposition to the wishes of those interested in them, can wc believe, that the new mode of docking estates tail, which they adopted in preference to all former modes, was intended to be less extensive in its application, and less efficacious in its operation, than the former modes were? To my mind it is impossible. *1 cannot doubt but that this statute was intended to operate as one great universal recovery, and to dock all estates tail whatever; those created before the enactment, instanter and ipso facto; those to be thereafter created, from the moment of their commencement. And such was the construction given to the first statute of 1776, by the legislature, in the revised statutes of 1785 and 1792. Por, in these, they drop all the expressions of the act of 1776, which gave rise to any doubt on the subject, and adopt the broadest term known to our language: “Every estate in lands or slaves which on the 7th October 1776, was an estate tail, shall be deemed from that time to have been, and from thenceforward to continue an estate in fee simple.”

But, it is said, there are consequences resulting from this construction, which the legislature could not have intended; and it is thence inferred, that the construction is unsound. The premises must be established, before we can be required to assent to the conclusion. Those, who urge this argument, suppose the following case, namely, that tenant in tail had discontinued, and then died before the statute of 1776; or that he had been disseized and then died after the right of entry was tolled, but before the passing of the statute; or that a tenant in tail had died, and that a stranger had abated, before the enactment: and they then assert, that, if these rights to estates tail were converted by the statute of 1776, into rights to estates in fee simple, neither the issue in tail nor the remainderman entitled to them, could recover them by formedon in the descender or remainder; and that they could not recover them by writ of right, because they could not count upon their own seizin, or that of their ancestors, in their demesne as of fee.

I cannot subscribe to the correctness of the position as to the writ of formedon. Coke says, “the writ of formedon, a forma donationis, is so called because the writ doth comprehend the form of the gift.” It has no reference to the nature of the estate which it seeks to recover; for, it is applied as well to the recovery of estates in fee simple, as of ^'estates in fee tail. Pormedon in the reverter lay at common law for the donor, after the failure of the issue of tenant in fee conditional at the common law; and after the statute de donis, it lay for the reversioner, after the failure of issue in tail. Plowd. 235, a. Booth, 154, 3 Tho. Co. Pitt. p. 118, note D, and page 214, note N. And both at common law, and since the statute de donis, the estates recovered by the formedon in the reverter, were estates in fee simple. Porme-dons in remainder were unknown to the common law, but were given an equitable construction of the statute de donis ; and they are given as well to a remainderman in fee, as to a remainderman in tail. Pitz-herbert says, “the writ of formedon in the remainder lieth where a man giveth lands to one in tail, the remainder unto another in tail, and afterwards the first tenant in tail dieth without issue of his body, and a stranger doth abate and deforce him in the remainder; he in the remainder or his heirs shall have that writ of formedon in remainder. And so, if the first tenant in tail alieneth in fee, and dieth without issue of his body begotten, he in the remainder in fee, shall have a writ of formedon in remainder, to recover his estate &c. ” F. N. B. 217. As to formedons in descender, it is true that since the statute de donis, they have not been used in England, except for the recovery of estates tail; the reason of which is very obvious, namely, that none but the issue in tail can claim by descent per formam doni, and they always take an estate tail: yet there was one instance, at common law, in which even the formedon in the descender lay for the recovery of a fee simple. “As, if a man had issue a son, and his wife died, and afterwards he took another wife, and land was given to him and his second wife, and the heirs of their two bodies begotten, and they had another son, and the wife died, and afterwards the father died, and a stranger abated; there, before the statute, the son could not have a mort d’ancestor; for one part of the writ is to inquire if the demandant be next heir-to his father, and that, he is not, but the eldest son is the next heir; for which reason, such '*writ would not serve upon his title, and therefore, before the statute he should have a formedon in descender, which was no other than a writ founded on his case.” Plowd. 239, b.

Thus we see, that every species of writs of formedon has been used for the recovery of fee simple estates. There is no incompatibility, therefore, in resorting to them now, for the recovery of estates in fee simple, (made such by the statute of 1776), in all those cases where they would have been the appropriate remedy, had the estates remained estates tail. The enlargement of the estates into fee simple, makes no difference. In the language of the case in Plowden, the formedon is still “no other than a writ founded on his case. ” And so the legislature must have understood it; for it has, since the statute of 1776, continued to prescribe* the limitation of all the writs of fqrmedon; thus shewing its opinion, that they are actions which may still be brought. It has enlarged the estate, but left the remedy unchanged. If the parties in the supposed cases, could recover by writs of formedon (as, I think, is evident) it is unnecessary to inquire, whether, if they could not thus recover, they might recover by writ of right founded on the statute.

If this view of the subject be correct, the argument drawn from the supposed consequences of our construction, falls to the ground.

Upon the whole, I am of opinion, that the statute of 1776, docked the entail of the land in controversy, and that, as the saving clause saves the rights of all persons other than the issue in tail and those in remainder and reversion, such docking of the entail enured to corroborate and confirm the fee simple which passed by the deed of Prudence Harbour; and that the judgment of the circuit court should be reversed with costs, and judgment entered for the appellant.

BROOKE, P., concurred.

*GREEN, J.,

dissented. He said, no other question like that presented in this case, would ever, in all probability, occur hereafter; and differing with tiis brethren, but with great diffidence, he should, therefore, not discuss at large, the questions which had been so elaborately argued at the bar, but state the result of his examination of them as succinctly as possible.

The deeds of lease and release with warranty, made by Prudence, the ancestor of the appellees, in 1769, divested her of the estate tail, and of all right present or future: she had no longer jus in re nor jus ad rem : she was, thereafter, incapable of receiving an effectual release of the reversion, and under no circumstances could she be remitted to the estate tail. Her estate being a fee tail general, and necessarily to descend with the warranty to the issue in tail, that warranty operated as an immediate discontinuance, converting the estate tail into a mere right, and putting that in abeyance, necessarily to remain, upon her death, to the issue in tail if any, and if none to those in reversion, notas an estate to be reduced to possession by entry, but a right to be asserted by a writ of formedon only, unless that right was barred, 'in her lifetime and before it vested, by some lawful means. That might be done in England, in such a case, by a common recovery with double voucher, both as to the issue and those in reversion and remainder; and, as to the issue, by a fine only; neither of which passed any new or additional interest from the tenant in tail, but only operated as estoppels, corroborating the first conv'eyannce incidentally, by barring the right of the issue &c. as the case might be, even although the recoveree in the recovery, or cognizee in the fine were utter strangers to the first conveyance. But in Virginia, those rights could not be barred by either of those methods, that being expressly prohibited by statute, and there were no means of barring them but by special act of assembly.

That is said to have been the effect of our statutes of 1776 and 1785 converting estates tail into fee simple, or of-*the statute of 1792 repealing the statute de donis with all other english statutes.

The statute of 1776, in terms, applies only to estates tail in possession, or in reversion or remainder after an estate for life or a lesser estate. And neither Prudence, nor Vandever, or indeed any other person, had any such estate in possession, remainder, or reversion, at the passing of the statute, or at any time since. The saving of the rights of all persons other than the issue in tail and those in reversion or remainder, is an exception in favour of the rights of strangers, in the cases embraced in the enacting clause, leaving it to operate in the cases provided for, as to the issue and "those in reversion or remainder, as if there were-no saving whatever, or as if the enacting clause had been concluded by a declaration, that in all such cases the issue in tail and those in reversion and remainder should be absolutely barred of all right. The present case certainly does not come within the literal terms of that statute.

The act of 1785 is in more general terms. It provides, “That every estate which on 7th October 1776, was an estate tail, shall be deemed from that time to have been, and thenceforward to continue, an estate in fee simple: and every estate, which since hath been limited, so that, as the law aforetime was, such an estate would have been an estate tail, shall also be deemed to have been and to continue an estate in fee simple: And all estates which before 7th October 1776, by the law, if it remained unaltered, would have been estates in fee tail, and which now by virtue of this act, are and will be estates in fee simple, shall from that time [Oct. 1776] and henceforth be discharged of the conditions annexed thereto by the common law, restraining alienations before the donee shall have issue; so that the donees, or persons in whom the conditional fees vested, or shall vest, had and shall have the same power over the said estates as if they were pure and -absolute fees.” In strictness, the right in question was not an estate tail in October 1776, the estate having been divested and turned to a mere right by the Conveyance of 1769. And the absolute power over such estates (as over a pure and absolute fee) is declared to have been, or thereafter to be, in him in whom the estate was vested in October 1776, or in him in whom it had since been or might thereafter be vested. The right in question was not vested in Prudence, in October 1776, or at any time thereafter; and if such a right ■was converted by the statute into a right of fee simple, it remained in this new character, as in its former, a right vested in no one during the life of Prudence, and vested upon her death in her children, converted into a fee simple. But 1 do not think, that either statute, in its terms, affected any estate or right not vested in some one, nor until it was vested; and then and then only operated upon the vested estate, and converted it into a fee simple. If it had been intended to affect rig'hts in abeyance, the language of the statutes would not have left that doubtful.

Nor do I think that the case comes within the equity of the statutes. The purpose of the legislature was to suppress an extensive public mischief, the perpetuation of property in particular families by entails; a practice greatly encouraged by our previous legislation. This object was completely effected, by giving an unlimited power of alienation, prospectively, to those then or thereafter possessed or entitled to entailed property, without ratifying their acts already done, which when done were unlawful, and which could not be rendered valid, by any act in their power without the aid of a legislative act. These cases were, moreover, very rare; and in those which existed, the fee simple right and power of alienation would be suspended only during a life in being; within the period universally allowed for executory limitations in favour of family settlements. And general laws are usually considered as providing for those cases which most frequently occur.

It was objected, that if the appellees are entitled, they are entitled as fee simple owners; and, therefore, cannot maintain a writ of formedon. My brother Cabell has shewn that a writ of formedon in descender as well as in reverter * would lie at common law for the recovery of a fee simple estate, whenever a writ of right would not lie. And here, if the appel-lees were entitled in fee simple, they could not maintain a writ of right, as they could not allege a seizin in demense as of fee, either in themselves, or their ancestor from whom they claim by descent as heirs. They can claim only per formam doni. So that, whether the right cast upon them was a right in fee tail, or fee simple, it could only be asserted in a writ of formedon.

The statute of 1792, abrogating the english statutes, expressly saves all rights arising under any such statute at any time before the commencement of the act, in the same condition in all respects as if the act had never been made. The saving is not confined to vested rights, but extends to all of every possible description; and, consequently, to the right in this case then existing and in abeyance.

As to the question, whether the heir of Prudence at the common law, or her heirs under our statute of descents, would be entitled, if either; the settled doctrinéis, that the estate tail goes to the heir of the body who would inherit the land entailed, if his ancestor held the same land in fee: as, if gavelkind land is entailed, it goes to all the sons; if borough-english, to the youngest; and if the tenure of the land so entailed, is changed to the common law tenure, it goes, afterwards, to the heir at the common law, the eldest son. So here, whoever by our general law of descents, would be entitled to inherit the land, if the ancestor held in fee, are entitled to claim as heirs in tail per formam doni, if the heirs in tail have any right.

Upon the whole, if left to my own judgment, I should be of opinion to affirm the judgment of the circuit court, but with considerable doubt, much increased by the strong opinions of my brethren to the contrary.

Judgment reversed, and judgment entered for the tenant. 
      
      Judgb Garb, read t'ne following extract from the memoir of Mr. Jefferson (Vol. L, p. 30, of the work lately published). It Is. without doubt, a lust account of the policy which induced the act of 1776, and of its history; and, in that view, is applicable to the question under consideration: but, besides, it is thought very fitting, that the striking; character Mr. J. has drawn of the late president Pen-dleton of this court, should be preserved among the reports of its decisions.
      “On 12th October 1776,1 obtained leave to bring in a bill, declaring tenants in tail to hold their lanas in fee simple. In the earlier times of the colony, when lands were to be obtained for little or nothing, some provident individuals obtained large grants; and desirous of founding great families for themselves, settled them on their descendants in fee tail. The transmission of this property, from generation to generation, in the same name, raised up a distinct set of families, who being privileged by law In the perpetuation of their wealth, were thus formed into a patrician order, distinguished by the splendour and luxury of their establishments. From this order too. the king habitually selected his councillors of state; the hope of which distinction devoted the whole corps to the interests and will of the crown. To annul this privilege, and instead of an aristocracy of wealth, or more harm and danger than benefit to society, to make an opening for the aristocracy of virtue and talent, which nature has wisely provided for the interests of society, and scattered with equal hand through all its conditions, was deemed essential to a well ordered republic. To effect it, no violence was necessary, no deprivation of natural right, but rather an enlargement of it by a repeal of the law. For this would authorise the present holder to divide the property among his children equally as his affections were divided; and would place them, by natural generation, on the level of their fellow citizens. But this repeal was strongly opposed by Mr. Pendleton, who was zealously attached to antientestablishments; and who, taken all in all, was the ablest man in debate, I have ever met with. He had not, indeed, the poetical fancy of Mr. Henry, his sublime imagination, his lofty and overwhelming diction: but he was cool, smooth and persuasive; his language flowing, chaste and embellished; his conceptions quick, acute and full of resource; never vanquished: for if he lost the main battle, he returned upon you, and regained so much of it, as to make it a drawn one, by dexterous manoeu-vres, skirmishes in detail, and the recovery of small advantages, which, little singly, were important all together. You never knew when you were clear of him, but were harassed by his perseverance, until the patience was worn down, of all who had less of it than himself. Add to this, that he was one of the most virtuous and benevolent of men. the kindest friend, the most amiable and pleasant of companions, which ensured a favourable reception to whatever came from him. Finding that the general principle of entails could not be maintained, he took his stand on an amendment, which he proposed, instead of an absolute abolition, to permit the tenant in tail to convey in fee simple, if he chose it: and he was within a few votes of saving so much of the old law. But the bill passed finally for in tire abolition." — Note in Original Edition.
     