
    Chapman v. Armistead.
    Argued March 10th, 17th, and 18th, 1815.
    i. Mortgages — Possession of Mortgagor — Effect.—The possession of the mortgagor, continuing by the mortgagee's permission, is to be considered the possession of the mortgagee; so that, where the latter could recover in ejectment, his deed assigning the mortgage will enable the assignee to recover in like manner.
    3. Same — Decree of Foreclosure — Effect.—A final decree of foreclosure, in favour of the assignee of a mortgage, ought to put to rest any controversy between the parties thereto, on the ground of any supposed defect in the deed of assignment.
    3. Ejectment — By Purchaser of Insolvent Debtor. — If a debtor, having taken the oath of insolvency, afterwards buy a tract of land, of commissioners, under a decree in chancery, and convey it by deed of bargain and sale, the purchaser from him is entitled to recover in ejectment against the defendant in chancery, withholding the possession; whatever the claims of such vendor’s creditors may be.
    4. Special Verdict — Sufficiency—Case at Bar. — ] t seems that a special finding, in h<ec verba, “the proceedings in a suit, to have their full legal effect, agreeably to the law of evidence,” sufficiently finds the facts appearing to be established by those proceedings.
    See Henderson v. Allens, 1 H. & M. 235; and Blank’s Administrator v. Foushee, ante, p.
    5. Ejectment — Judgment—Effect of. — The whole effect of a judgmentfor the plaintiff in ejectment, is to put the lessor of the plaintiff into possession of the land: and the only point decided is, that he has a better title to the possession than the defendant.
    6. Decrees — Final—What Constitutes — Case at Bar.— In a suit in chan eery against several defendants, a decree that the complainant recover against one of them, the residue of the land claimed and owned by that defendant under the will of his father, after taking therefrom the portions sold out by him to the other defendants; that he yield possession, and execute a conveyance of the same in fee: “without which conveyance, however, the title is to be in the said complainant by force of this decree:” is not a. final decree, until the suit be disposed of as to all the defendants.
    7. Same — Interpretation—Case at Bar. — In such case, a part of the land previously mortgaged, by that defendant, to a person under whom one of the other defendants claims it, by assignment of the mortgage and decree of foreclosure, is not to be understood as recovered by the decree.
    3. Ejectment — Land Subject to Dower — Effect. -A plaintiff in ejectment may recover, notwithstanding a widow appears to be entitled to dower in the land In controversy, if such dower has not been assigned; for, until such assignment, she has no right of possession, and the recovery by the plaintiff is subj ect to her title.
    This was an action of ejectment in the Haymarket District Court, in behalf of George Chapman against William * Armistead, for seven hundred acres of land in Prince William County. The declaration having been served in May, 1806, and issue joined is October following, on the plea of not guilty ; the defendant, on the 2d of November, 1808, filed an affidavit, stating, that his counsel had filed that plea by mistake ; that in fact, he had no interest in the premises, either in possession or reversion, “for that his mother, Lucy Armistead, holds the said lands as part of the dower to which she was entitled, out of her deceased husband’s estate, and that the reversion is in his brother, George Armistead.” On the motion of Lucy Armistead, she was admitted a co-defendant with the said William, for the purpose of defending her right of dower in the land claimed by the plaintiff; “upon condition that she would not require the lessor of the plaintiff to go farther back, in tracing his title, than he would be obliged to do if William Armistead were the sole defendant.” George Armistead, also, on the 16th of May, 1810, claiming title to the land in dispute, under the will of his father, John Armistead, was, on his motion (which the plaintiff opposed,) entered as a co-defendant; to which opinion of the court, the plaintiff filed a bill of exceptions.
    George and Lucy Armistead both acknowledged the lease, entry, and ouster, pleaded not guilty, &c.
    At the trial, which took place the same day, the defendants offered in evidence the decree and proceedings in a suit in chancery, in Prince William County Court, as a part of the title of the defendant, George Armistead ; which suit was brought by him in September, 1800, against his brothers, John B. Armistead and William Armistead, and sundry persons, purchasers from them ; of whom Jesse Simms, under whom the plaintiff claimed, was one: but the subpoena had never been served on the said Jesse Simms ; and, it appeared in the record that the suit, after many renewals of the process in vain, was afterwards, viz. in June, 1811, dismissed as to him. The decree pronounced in November, 1808, *was, “that the complainant do recover against William Armistead, all the residue of the land claimed and owned by the said William Armistead, under the will of his father, after taking from the land so devised the portions sold out by the saidWilliam to the other defendants in the cause; and that the said William Armistead do yield possession of the said land accordingly, and execute a conveyance for the same in fee ; without which conveyance, however, the title is to be in the said complainant, by force of this decree.”
    To which evidence the plaintiff objected, as inadmissible ; but the court overruled the objection, and admitted the said decree and proceedings to go in evidence ; whereupon the plaintiff filed a second bill of exceptions.
    The jury found a special verdict as follows : That John Armistead departed this life on or about the last of June 1788, seized, &c. of a large tract of land, whereof the lands in the declaration mentioned were a part, situate and being in the counties of Prince William and Loudoun ; that, by his last will, he devised the lands aforesaid, as expressed in the following clause thereof, in these words, to wit : — “Item, my lands in the counties of Prince William and Loudoun, now in my possession, I give to my sons John Baylor Armistead, William Armistead, and Addison Armistead, and their heirs, as they respectively arrive at the age of twenty-one years, according to a survey and division thereof made into three lots, by Nathaniel Tyler, by my direction; my eldest son to have the first, and my second to have the next choice of the said lots that the said last will was fully proved and recorded in the general court, in these words, &c. that the *share or dividend, devised and allotted to William Armistead by the said will, was upwards of thirteen hundred acres ; of which said dividend the said William Armistead was possessed under the will aforesaid ; that the lands in the declaration mentioned were a part of the said dividend ; and that dower has never been allotted unto the defendant Lucy Armistead, widow of the said John Armistead, of and in the said tract of land devised, as aforesaid, to the defendant William Armistead.
    The jury also found, in haec, verba, “to have their full legal effect agreeable to the law of evidence,” the proceedings in a suit in the Superior Court of Chancery for the Richmorid District, between Jesse Simms, complainant, and William Armistead, defendant, to foreclose a mortgage executed by the said William Armistead on the 3d of Dec. 1794, to a certain Abraham Morehouse, of a track of land, on Bull Run, in the county of Prince William, containing 1140 acres, which, by a deed of bargain and sale, bearing date the 15th of April 1795, and appearing in the record of those proceedings, the said Abraham Morehouse, by David Allison, his attorney in fact, aliened, assigned, and conveyed to the complainant, subject to the equity of redemption.
    A decree of foreclosure appeared in that suit, dated September 22d 1801, and the jury found that the land was sold by commissioners to the said Jesse Simms ; he being the highest bidder at the sale ; whereupon they made a deed of bargain and sale, dated July 13th 1804, to him and his heirs, for the lands in the mortgage, “a part whereof were the lands in the declaration mentioned.” The report of the commissioners was approved by the court, and affirmed, the 27th of May 1805.
    The jury farther found that Jesse Simms, on the 30th day of August 1804, sold and conveyed the said tract of land to the lessor of the plaintiff, by his deeds of bargain and sale duly proved and recorded, in haec verba, &c.
    They also found, that at the time of the sale of the premises in the declaration mentioned, under the decree of the Superior Court of Chancery aforesaid, that is to - say, on the *13th day of July 1804, the defendant William Armistead was in possession of the said premises, and had been in possession of the same from the date of the mortgage made by him to Morehouse as aforesaid, and has continued in the possession ever since; that William Armistead was in possession of the land in the declaration mentioned, but that the same ivas worked by Buey Armistead’s hands, and the hands of William Armistead’s children ; that the said L,ucy Armistead has occasionally resided out of the County of Prince William, during which time William Armistead managed the hands, sold the crops, and the place was called William Armistead’s in the neighbourhood, but the widow’s furniture was there during all the time of her absence; that the possession of William Armistead was not claimed by him to be held under the said Simms, or Chapman, or either of them.
    Finally, the jury found, that a suit was instituted, in the year 1800, by the defendant George Armistead, against the defendant William Armistead and others, for the recovery of his share of the land devised by his father; (no recovery having ever been had from Carter for the benefit of the defendant George;) and that, in November 1809, the County Court of Prince William, in that suit, entered the decree first above mentioned ; that the lands comprehended in the said decree were all the lands that remained, in 1804, out of the lands devised to William Armistead, as aforesaid, after taking out the lands, previous to that year, sold and delivered by him ; and that the land comprehended in the said decree was less than 266 acres ; concluding their verdict in the usual form. The matters of law arising from this special verdict, being argued, were determined, and judgment entered, for the defendant; from which judgment the plaintiff appealed.
    Wickham, for the appellant.
    The first question in this case is, whether the title was sufficiently conveyed to the lessor of the plaintiff, to enable him to maintain ejectment against William Armistead, the mortgagor of the land, who remained in possession.
    The lessor of the plaintiff sues, as assignee of the title of *the mortgagee ; and it is clear, that the mortgagor’s possession is no impediment to the effectual conveyance of the title by the mortgagee. Duval v. Bibb, 3 Call, 362, is in every respect analogous to the case now before the court, and shews that the possession of the bargainor after the conveyance will not render a deed by the bargainee void. In Keech v. Call, 1 Doug. 21, it is said that a mortgagor, continuing in possession, is only a tenant at will; and, according to the case of Smartle v. Williams, 1 Salk. 245, the assignee of a mortgage can bring ejectment, notwithstanding the mortgagor continues in possession.
    But the act of assembly puts it beyond all doubt, that Simms had a sufficient title to enable him to convey to Chapman ; because the conveyance to Simms was by commissioners under a decree of the Court of Chancery.
    As to George Armistead’s title, he never was in possession of the land, but was improperly admitted a defendant, without the plaintiff’s consent. The case therefore is to be considered as between William Armistead and the plaintilf. Our right to recover is therefore certain : for William Armistead is estopped by his own deed from denying that his own title was good, though a third person might put us to the proof of it. In ejectment by the mortgagee against the mortgagor, he never goes higher than the deed from the defendant. But if George Armistead be received as a defendant, his title is no bettter than that of William. His claim depends upon the will of John Armistead, and the record of his'suit in chancery. I consider those proceedings not lawful evidence in this cause, being not between the same parties,  They took place, too, long after the plaintiff’s title had accrued.
    But if that record was admissible, it is not sufficient to bar our recovery ; for, by the decree in his favour, George Chapman obtained only an equitable title ; not a legal one. Besides, the decree itself is only for such lands as William Armistead had not previously conveyed.
    Call, for the appellees.
    1. The deed from Simms to the lessor of the plaintiff did not pass the legal estate; because *it is found by the verdict that William Armistead’s possession was adverse. The verdict says that he held by continued possession from the time of his father’s death ; and that he did not claim under Simms, or under Chapman. His possession must therefore have been adverse, and not under the mortgagee.
    The cases cited by Mr. Wickham are not opposite. Duval v. Bibb was a case of a deed of trust. The person who executed the deed was clearly a tenant at will, holding under the trustee. Upon principle, there is a difference between a mortgage and a deed of trust.
    A decree of foreclosure is like an elegit. The inquest upon the elegit gives a title to the tenant by elegit to maintain ejectment. The decree of foreclosure has the same effect: it does not, of itself, give possession, but only a right to assert it by ejectment. Simms then, by the decree, did not obtain possession, against the adverse possession of William Armistead, and, therefore, could not convey by deed of bargain and sale to Chapman.
    Besides, commissioners who sell by virtue of a decree have no power to make conveyances, until the sale has been sanctioned by the court. On the day when the commissioners executed the conveyance to Simms, they had no authority to make it; the sale having not, at that time, been sanctioned by the court.
    Another objection is important. The jury have not found the fact of the assignment of the mortgage ; but only evidence of the fact. They merely find the proceedings in the suit in chancery, “to have their full legal effect agreeable to the law of evidence ;” without saying what facts are thereby established.
    2. The title of George Armistead is paramount to that under the mortgage, and is no equitable title, but a legal one.
    When he attained the age of twenty-one years, he was a devisee of eight hundred acres of these lands, as tenant in common with his brothers. The mortgagee was bound to take notice of the will, which was recorded. George was tenant in possession with William. Any man may be admitted *a defendant in ejectment. Shall the court permit the vain thing of a recovery of possession, when a third person has the better title ? The court will always receive a person offering himself as defendant, to prevent collusion between the plaintiff and the person whom he made the defendant.
    3. The plaintiff could not recover, as the defendant Gucy Armistead had never had her dower assigned her, and therefore had a right to remain in possession of the manor plantation until her dower was laid off.
    Nicholas, on the same side. In discussing this case, I shall enquire, first, whether Chap-ma.n has shewn on the record any title to recover, under the proceedings in chancery, or under the assignment from Morehouse to Simms, and the deed from Simms to Chapman : secondly, whether the defendant George Armistead does not shew a better title to the land than the plaintiff has shewn : and, thirdly, I will notice some arguments of Mr. Wickham, omitted in discussing the two preceding points.
    1. As to Chapman’s rights, growing out of the decree and proceedings in Chancery. The suit was merely against William Armistead, and the decree to foreclose his right. George Armistead was no party, and his rights cannot be affected. We do not object to the record of that suit’s having been read, though the objection would be stronger for us, than that which is taken on the other side, against the reading of the record of the suit in behalf of George Armistead against William Armistead and others. But it certainly is not evidence of title against George Armistead ; however proper it may be to shew that the step of a recovery against William Armistead had been taken by Simms, the decree to foreclose only took away William Armistead’s right to redeem, and disturbed no other title,  The court in such case leaves the plaintiff to such title as he hath. We also have a decree for the land in controversy. The rights of Simms are not excepted in our decree, because he is not one of those to whom portions of land devised were sold out by William Armistead. Here, then, is decree against decree. *The least that can be said is, that one neutralizes the other. But our decree has this advantage, that Simms was a party to our suit, and if the decree against him was erroneous, it is binding, not having been reversed.
    Mr. Call’s objection to the decree, that no power was given the commissioners to convey the land until their report was approved by the court, is well founded. Besides, there was, according to the verdict, adverse possession, both when Simms and when the commissioners pretended to convey.
    But Mr. Wickham, though he admits the rule, that, if a person out of possession make a deed, his alienee cannot maintain ejectment, denies its application to this case ;
    1st. On the ground of authority ; and, next, on general principles.
    As to authority, he says, that Duval v. Bibb, 3 Call, 362, decides this case. What does that case decide ? Merely, that where B. conveys to G. who suffers him to continue 20 years in possession, and then G. sells to D. and Y. B. cannot object his own possession, against his own deed, in opposition to an ejectment brought by the two last purchasers ; because, being permitted by G. to remain in possession, his possession was that of G., which the latter therefore could transfer ; and, especially, because a party is estopped by his own deed from objecting his own possession as a bar to a right claimed under it. Tabb v. Baird, 3 Call, 475, is a case which serves to explain that of Duval v. Bibb, and is an express authority in our favour, shewing not only that there must be a possession in the grantor, to enable him to convey, but that such possession must be found. Here there was no possession in Simms, or in the commissioners, and adverse possession in William Armistead is expressly found ; so that this case is stronger than Tabb v. Baird. It may be said that William Armistead’s possession is like that of Bibb ; and that he is estopped by his mortgage. But to this there are two answers : — 1st, That the objection does not come merely from him, but from George Armistead ; and 2dly, it will appear, from what I shall shew hereafter, that George Armistead was tenant in common with William ; and that he *in fact was in possession as well as William. The authorities are therefore in our favour.
    2. But it is next objected that, on general principles, the possession of the mortgagor is the possession of the mortgagee. Mr. Call has already commented on that subject, and explained the difference between a deed of trust and a mortgage in this particular. I will only trouble the court a short time on it.
    In this country, the course is to decree a sale, and the court ought to make an order to put the purchaser in possession. In England, the practice being not to decree a sale, but a foreclosure, the party is in, merely of his own right affirmed; and, therefore, an ejectment is necessary,  Here the purchaser may be a mere stranger, who had no claim before ; and as neither he, nor the commissioners, have had possession, it is necessary to be given, before the purchaser can convey, Besides, where there is a decree to foreclose and a sale, the possession, if held in opposition to the decree, would be, from that time, adverse. In this aspect of the case, the lessor of the plaintiff does not claim as mere assignee of the mortgagee, but under the sale. But what is conclusive, in my judgment, is, that the jury have expressly found an adverse possession, unconnected with Simms; which puts an end to all inference.
    The next question is, what is the effect of the mortgage independent of the decree ?
    If the decree be thrown out of the case, the main link in the plaintiff’s title is broken, because the conveyance to Chapman from Simms derives its whole efficacy from the decree. That conveyance is not an assignment of the mortgage, but an attempt to convey an absolute title. Besides, our objection to a transfer of the legal estate from Simms, on account of his want of possession, would equally apply to a claim set up independently of the decree. But there is no proof of a transfer of the mortgage to Simms. The jury find evidence only, and not facts, in relation to the suit of Simms v. Armistead. The distinction between evidence of facts, and the facts themselves, is so well known as to require no authority to prove *it. But with respect to the deed of assignment to Simms, they do not even find evidence ; for what they find is a transcript of a record of a suit, in which the paper purporting to be a deed was exhibited, not even an office copy of the deed. The power of attorney too, from Morehouse to Allison, is not proved, but merely inserted in that record without proof,  It would seem, therefore, that no title is made out, under the mortgage or the alleged assignment of it.
    But there is another objection to the title of Simms, under the mortgage or assignment. The deed from Morehouse’s attorney to Simms bears date the 25th of March, 1797: —it appears that the latter took the oath of insolvency at Alexandria, on the 30th of August, 1800, and conveyed the land to Chapman, August 13th, 1804 : so that, in 1800, all the property of Simms either vested in the sheriff,  or had been conveyed to trustees for the use of his creditors, as appears by the tenor of his oath ; and, of course, he could not convey in 1804, so as to transfer a title.
    2. George Armistead, under the will of his father, has a better title than the lessor of the plaintiff, and paramount to his or William Armistead’s.
    By the will, there was a good executory devise to George Armistead, which vested immediately on his attaining the age of twenty-one years, without the suit; for the jury have found that no recovery was had against Carter. The title vested in him was not a mere equity, but an absolute legal estate, which he could enforce by ejectment,  George and William were tenants in common : for there may be a tenancy in common, of unequal portions, if it be an undivided estate, without any unity of interest to create a jointenancy. No decree was necessary for George, except for partition ; for William’s possession was his possession, which was founded on his paramount title under the will,  He therefore need not rely on the decree, as giving title ; but on the will; for the decree only made partition, but the will gave the title without any deed. It may be said, that the mortgage was an ouster of George Armistead’s possession : *but it could not have that effect; for it only conveyed what the mortgagor had a right to convey, 
    
    3. I will now briefly answer some of Mr. Wickham’s remarks not involved in my previous discussion.
    He says that George Armistead ought not to have been admitted a defendant, but put to his ejectment.
    Bor what purpose, when it could as well be decided in this suit, as in another ?
    Again, he says, that William Armistead’s deed of mortgage is an estoppel to him, and that Chapman is not bound to trace his title farther back than to that deed.
    If this be true in relation to William Armistead, it cannot affect George; and this is a difference between Duval v. Bibb, and the case before us.
    Mr. Wickham also says, the decree in favour of George Armistead is only for the balance left, after deducting the lands sold out by William Armistead to the other defendants.
    To this I answer, that the land claimed by Simms could not be considered as excepted by the decree; because his title was controverted, and no sale had ever been made to him by William Armistead.
    Wickham in reply.
    As to William Armistead’s title, I have always taken it for granted, that the possession of the mortgagor was the possession of the mortgagee, who has the right to assign. By the cases of Tabb v. Baird,  Hall v. Hall,  and Clay v. White,  taken in connection with Duval v. Bibb,  the law is settled, that, when a man is disseissed, he cannot, while out of possession, convey by any statutory conveyance. But a man whose possession does not commence adversely has not a right to declare himself as holding by adverse possession. The doctrine contended for would disable a landlord from conveying, if his tenant held over after the year, or the true owner from conveying, if another squatted on his land, without pretending to a title.
    The mortgagor holds by consent of the mortgagee, and not against him. The jury say that all the proceedings in chancery are to have the effect of lawful evidence. Certainty *to a common intent is sufficient in special verdicts. But the conveyance by the commissioners to Simms, (which is found by the jury,) is of itself sufficient. That deed conveyed to him the “absolute title” to the land. It was warranted and directed by the court: The decree was that they should sell the land “for ready money,” which (of course) they were to receive. Would the purchaser pay the money without a title ? This decree, therefore, impliedly, though not in terms, directed them to convey. In addition to all this, their report was approved, and the sale and conveyance affirmed by the court. Let the decree be right or wrong, it was binding on the parties ; not having been reversed by any court of competent jurisdiction.
    Gentlemen clutch, with great avidity, at the discovery that the power of attorney was not proved. It was an exhibit in the cause, referred to, as such, in the bill, which was taken pro confesso. This was an admission of record, that the power of attorney was proved. The defendant might have called for proof of the exhibit, but not without answering the bill. As to the circumstance of Simms’s oath of insolvency, he purchased of the commissioners afterwards, and had as good a right to purchase as any other person. But, although the town of Alexandria is governed by the laws of Virginia, it is only in consequence of their being adopted by Congress for its government; and the laws of Alexandria cannot dispose of part of the territory of Virginia.
    The practice in England is not to decree possession to the mortgagee, but only a foreclosure ; whereupon, the mortgagee brings ejectment. In this country, the conveyance by the commissioners carries the “absolute title to the purchasers and all persons claiming under them.”
    But how is it found that William Armistead had adverse possession ? It is found a continuing possession from the time of the mortgage ; and that he did not claim under Simms or Chapman ; — which is merely a negative finding. In Duval v. Bibb, adverse possession was positively found.
    In ejectment every person has not the right to enter himself defendant; but only a man in possession, or whose tenant, *or person holding under him, is in possession : — not a mere claimant of title,  George Armistead never was in possession, and therefore was improperly admitted a defendant.
    I admit the executory devise to George Armistead to be good ; but he cannot claim by ejectment. On attaining the age of twenty-one years, he took no legal, but an equitable estate only. It was not the intention of the testator to give him an estate in common with his brothers, but a certain number of acres in severalty. Until his part is laid off, he is not, at law, entitled to a foot of the land, but must go into chancery for the purpose of getting his 800 acres laid off to him. He has a right, in equity, to sue William Armistead, and all claiming under him ; and his title would be paramount to that of them all: — but he has no remedy at law. Whether we should, thereupon, lose any part of the land, would depend upon the decree in such suit. The decree in the suit, which he has brought, operates against him, in relation to the present controversy. His bill was dismissed as to all the defendants but William Armistead ; and his recovery is only, of the surplus, after takiug out all the lands sold by William.
    It is no where found that George Armistead’s proportion is included in the 700 acres claimed by us in the declaration. His claim, or the widow’s dower-right, (which is also a paramount claim,) cannot be determined in this cause. An unnecessary party shall not vitiate the judgment against the necessary party. If, therefore, it be decided, that George and Uucy Armistead were improperly made defendants, the effect will not be to occasion a new trial.
    March 23d, 1815.
    
      
      Mortgages. — See monographic note on “Mortgages” appended to Forkner v. Stuart, 6 Gratt. 197.
    
    
      
      Ejectment. — See monographic note on “Ejectment” appended to Tapscott v. Cobbs, 11 Gratt. 172.
    
    
      
      Same — Judgment—Effect.—In Hukill v. Guffy, 37 W. Va. 453, 16 S. E. Rep. 553, it is said; “Prior to the Code of 1849 ‘the whole eftect of a judgment for the plaintiff in ej ectment was to put the lessor of the plaintiff into possession of the land; and the only point decided is that he has abetter title to the possession than the defendant.’ Chapman v. Armistead, 4 Munf. 382-397. It is a recovery of the possession, not of the seisin or freehold, without prejudice to the right as it may afterwards appear, even between tbe same parties. He who enters under it in truth and substance can only be possessed according to his right. If he has a freehold, he is in as a freeholder. If he has a chattel interest, he is in as a termor. If he has no title, he is in as a trespasser. If he has no right to the possession, then he takes only a naked possession. See Taylor v. Horde, 1 Burrows, 60, 113, 114; Jackson v. Dieffendorf, 3 Johns. 270: Miles v. Caldwell, 2 Wall. 35.”
    
    
      
      Decrees-Finality. — In collecting the cases upon the question of the interlocutory or final character of decrees. Judge Green, in Royall v. Johnson, 1 Rand. 427, cites the principal case. See further, on this subject, notes cited in foot-note to Templeman v. Steptoe, 1 Munf. 339; monographic note on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615.
    
    
      
       Ejectment — Land Subject to Dower — Effect.—A plaintiff in ejectment may recover against a widow holding possession of the land of which her husband died seized, and having a right of dower, if it do not appear that the land in controversy was assigned her as her dower, or as part thereof, or was attached to the mansion house of her husband at the time of his death. Moore v. Gilliam, 5 Munf. 346. For. before assignment, even after the death of the husband, the widow has no estate in the lands of her husband. It is a mere chose in action, and before assignment, is strictly a claim. Southern Mutual Ins. Co. v. Kloeber, 31 Gratt. 745, citing the principal case.
    
    
      
       Note. The clause under which George Armistead claimed, was the following, viz. “Item, the lands for which I have sued Mr. John Carter, adjoining my lands in the counties of Prince William and Loudoun, (in case the same shall he recovered at the time my son George arrives of age.) I then give the same to my said son George and his heirs: hut in case they should not he recovered at that period, then I give to my said son George and his heirs, eight hundred acres, to he laid off out of the tract of land given to my sons John, William, and Addison, so as to take the same quantity from each of them.” — Note in Original Edition.
    
    
      
       Key. Code, 1st yol. p. 159, sect. 19.
    
    
      
       Paynes v. Coles, 1 Munf. 373; Chapmans v. Chapman, Ibid. 398.
    
    
      
       2 Chancery cases, 24Í.
    
    
      
       2 Atk. 103.
    
    
      
       Bull, N. P. 254.
    
    
      
       Rev. Code, 1st vol. p. 304.
    
    
      
       2 Blacks. 334. Fearne on contingent remrs. (old ed.) 239, 240, 200.
    
    
      
       2 Cruise. 549, § 2; 3 Bac. abr. 678; 2 Vezey, sen. 81,
    
    
      
       2 Cruise. 551, § 11.
    
    
      
       2 Cruise. 555, § 16. 17.
    
    
      
      
         3 Call, 475.
    
    
      
       Ibid, 488.
    
    
      
       IMunf. 162.
    
    
      
       3 Call, 362.
    
    
      
       2 Esp. N. P. 28. (New York edition, 3 Burr. 1298.)
    
   The president pronounced the court’s opinion.

This case, though very elaborately argued by counsel, on both sides, lies within a narrow compass. The two important questions to be decided are, first, what is the nature of the possession of the mortgagor, in relation to the mortgagee; and, secondly, what will be the effect of • a judgment *for the plaintiff upon the rights of the defendants George and Buey Armistead ?

Upon the first point, it was contended by the counsel for the appellant, that the case is essentially analogous to the case of Duval v. Bibb, (3 Call 362,) in which it was decided that the possession of the bargainor was the possession of the bargainee ; and, of consequence, no obstacle to the full operation of a deed from the bargainee to a third person, under the act of assembly on that subject. The court, upon reason, can perceive no difference, and, upon authority, have no doubt. In the case of Keech v. Hall, (Douglas 21,) Bord Mansfield says, “when the mortgagor is left in possession, the true inference to be drawn is, that he should possess the premises, at will, in the strictest sense —and the principle decided in that case is, that, if the mortgagor make a lease, though before forfeiture, it is void as to the mortgagee ; and he may consider the tenant claiming such interest as a trespasser, disseisor, and wrong doer. In the case of Moss v. Gallimore, (Douglas 266,) it is said, that the mortgagor is not, properly, even a tenant at will: for he pays no rent, and is so only quodam modo. Applying these cases to the case in the special verdict, the court is of opinion, that the possession of William Armistead, the mortgagor, after the date of the mortgage, was the possession of the mortgagee Morehouse ; and was well transferred, by the conveyance of Morehouse to Jesse Simms, and the decree of foreclosure obtained by the latter against William Armistead, confirming the sale of the premises to the said Jesse Simms, which, the court is of opinion, ought to have put to rest any controversy between the parties thereto, on the ground of any supposed defect in the conveyance from Morehouse to Simms : — nor can the court perceive any defect in the conveyance, found by the jury, from Simms to the appellant.

The oath of insolvency taken by the former, within the territory of Columbia, if it could have any effect upon his title to lands in Virginia, is found to have preceded the decree in question, and precludes William Armistead, as to any matter within the scope thereof; — and, as to the creditors *of Simms, if any there be, leaves them to their remedy in a court of chancery, unaffected by the decree, or the judgment in this case; if they have any claim ; — as to which it is not now necessary to decide as to William Armistead. Therefore, the court is of opinion, that the judgment of the superior court is erroneous.

On the second question, what will be the effect of a judgment, in favour of the lessor of the plaintiff, upon the rights of George and Buey Armistead, to be collected from the special verdict, the court, not deciding whether, upon the case made out by them, upon their application to be made defendants, they were rightfully admitted by the superior court, or not, is of opinion, that their rights cannot be affected by any judgment in this case. An action of ejectment is a possessory remedy: — its whole object is to put the party entitled to the possession, into the enjoyment of it. In speaking of a judgment in ejectment, in the case of Taylor, lessee of Atkyns, v. Horde, in 1st Burrow, p. 113, 114, Bord Mansfield says, “suppose the proceedings real, the termor, at the old law, might recover against a disseisor, but not thereby become a disseisor himself ; — he never could be any thing other than a termor : — if the proceedings (he says) tie fictitious, then, in truth and substance, a judgment in ejectment is a recovery of the possession, without prejudice to the right, however it may appear after-wards, even between the parties: he who enters under it, in truth and substance, can only be possessed according to his right, prout lex postulat: — if he has a freehold, he is in of a freehold ; — if a chattel interest, he is in as a termor : — his possession enures according to his right; and, if he has no title, he is in as a trespasser.” According to the principles adopted by the King’s Bench, in the case referred to, the whole effect of a judgment in this case, in behalf of the appellant, will be to put him into the possession of the land in the declaration mentioned ; and the only point decided is, that he has a better title to the possession than either, or all, of the defendants.

With respect to William Armistead, enough has been said. * A.s to the defendant George Armistead, the decree in his behalf, against William Armistead and others, is liable to several objections : — it •does not appear to have been final at the period of finding the special verdict; but, certainly, (if admissible evidence, which it is not material to decide,) it does not comprehend the land conveyed to Morehouse. With respect to Simms, (under whom the appellant claims,) though made a party, process was never served on him, and the bill was finally dismissed as to him : — but, if these objections were obviated, the decree gave George Armistead no title to the actual possession of any part of the land in the declaration mentioned ; and the possession of the appellant, under a judgment in this case, can no more affect his title, under the will of his father, John Armistead, than the possession of William Armistead prior to the execution of the mortgage to Morehouse. The same course of reasoning, the court is of opinion, applies to the other defendant Lucy Armistead. Until her dower was assigned her, she had no title to the possession of any part of the land in controversy. The appellant will take the possession, in this case, subject to her rights.

The court, on these grounds, reverses the judgment of the superior court, and gives judgment for the appellant.  