
    *Hyer v. Shobe.
    Tuesday, April 9th, 1811.
    i. Ejectment — Demurrer to Evidence — Case at Bar. — It appearing- from a demurrer to the evidence, in ejectment, that the right of the lessor of the plaintiff originated in a lease to I. S., his heirs and assigns, for the lives of his sons A. S. and M. S. and his grand-son A. S., jun. renewable'to the said I. S., his heirs and assigns for ever; and that, I. S. dying intestate, his heir at law devised the land to the lessor of the plaintiff; the defendant claiming under a conveyance from the said A. S., jun.. and others, grandchildren of the said I. S., a judgment for the plaintiff was affirmed, tho’ it did not certainly appear from the demurrer whether the said A. S., M. S., and A. S., jun. were yet living' or not.
    2. Wills — Devise of Right of Entry. — It seems that, under the act of 1785, c. 61, a right of entry, into-land, hy a person entitled as special occupant, is devisable hy him, though he never was in actual possession, and another person held the land with an adverse claim, at the time of the devise.
    On the trial of an action of ejectment, in the district court, holden at Hardy courthouse, in behalf of Jacob Shobe against Jacob Hyer, (on whom the declaration was served in February, 1803,) the defendant demurred to the evidence, which, thereupon, was stated on both sides, 
    
    The testimony on the part of the plaintiff was, in the first place, an indenture of lease from Thomas Lord Fairfax, late proprietor of the Northern Neck, dated the 3d of August, 1773, conveying the land in controversy to Jacob Stookey the elder, “his heirs and assigns, for and during the natural lives of Abraham Stookey and Michael Stookey, his sons, and Abraham Stookey, son of the said Michael', and the longest liver of them; renewable unto the said Jacob Stookey, his heirs and assigns forever;” yielding and paying a certain annual rent; subject to a clause of re-entry, in case such rent should, at any time, be two whole years in arrear, and no distress could be found on the premises; with a covenant of renewal, on the part of Lord Fairfax, ‘ ‘upon the death of either the said Abraham Stookey, Michael Stookey and Abraham Stookey, jun. or upon the death of any future tenant; he the said Jacob Stookey, his heirs or assigns, yielding and paying one year’s rent as a fine for such renewal;” and a covenant on the part of Jacob Stookey, for himself, his heirs and assigns, to give notice to Lord Fairfax, or his heirs, or his certain attorney or agent, within twelve months from the death either of the present or any future tenant, and to . request such renewal; ^moreover, to pay the fine of one-year’s rent. This indenture was signed by both parties, and recorded May 10, 1774.
    The plaintiff proved that Jacob Stookey the younger was the eldest son of the said Jacob Stookey the elder; that, in the year 1755 or 1756, he was taken prisoner by the Indians, being then sixteen years of age, and remained out of the commonwealth until January, 1802, when he was brought into the county of Hardy by one of his nephews; (his identity being established by several circumstances; especially a scar on his forehead occasioned by an accident when he was eight or nine years old;) that he lived, after his return, only nine or ten-days, and, during that time, made a will, devising the land in controversy to the lessor of the plaintiff; which is duly recorded, and is set forth in base verba; that Jacob Stookey the elder departed this life intestate, in the January after Cornwallis was taken ; that Michael Stookey lived on the land eight or ten years before the death •of the said Jacob the elder, and died about ten or fifteen days before him.
    The defendant proved that Jacob Stookey the elder was in possession of the land until his death, which took place in the year 1783; that (ever since) the defendant, •and those under whom he claimed, had been in actual possession, under title derived from the grandchildren of the said Jacob Stookey the elder, to wit, David Stookey, Abraham Stookey and Eve Stookey; that '‘Jacob Stookey the younger, under whose will the lessor of the plaintiff claimed as •devisee, was never in actual possession of the said land; neither was the lessor of the plaintiff ever in actual possession thereof. ’ ’
    Upon this demurrer, the district court gave judgment for the plaintiff; whereupon the defendant appealed.
    Call, for the appellant.
    1. The plaintiff did not make out such a right as entitled him to recover. The lease *from Eord Fairfax conveyed no more than an estate for the lives of certain persons; and it does not appear from the demurrer, that any of those lives continued in being; or that any renewal of the lease had taken place. And if the lives were in being, the grandchildren, under whom the defendant claims, were the first occupants, after the death of the tenant.
    2. Jacob Stookey the younger, being out of possession, could not devise the land, 
    
    Muntord, for the appellee.
    The title of Jacob Stookey the elder, and his heirs, under the lease, ought to be considered as still in force; nothing to the contrary appearing ; and both parties claiming ultimately under him. At his death, his title devolved on his eldest son and heir, who, alone, had the right of entry, as special occupant; (2 Tuck. Bl. 259,) which right was not taken away during the absence of such heir from the commonwealth,  But if the heir had not been absent, the length of time was not sufficient to bar his right: for, take out of the computation the period between the 5th of May, 1783, and the 20th <of October, in the same year, (in conformity with the act of limitations,)  and twenty years had not elapsed between the death of Jacob Stookey the elder and the service of the declaration in ejectment.
    The case of Hall v. Hall does not establish the doctrine contended for by Mr. Call. The marginal note, indeed, is, “if the title of the heir be abated by a stranger, he cannot devise it before entry:” but this is evidently a mistake; for the point decided in the case is not that a devise, but that a deed of bargain and sale, by one out of possession, is void. The rule, that a person conveying *by bargain and sale must be in possession, to make the conveyance effectual, is founded on the doctrine of uses, in which that species of conveyance originated. In like manner as a feoffment, by a person out of possession, was void, because there could be no livery of seisin; the deed of bargain and sale, which, under the statute of uses, is a substitute for a feoffment, cannot take effect, unless the bargainor be in possession; without which the statute does not execute the use.  But the same reason does not apply to devises.
    In England, the stat. 32 Hen. VIII. c. 1, uses the words “being seised,” &c.  Yet, even there, it has been repeatedly decided that “contingencies and mere possibilities” may be devised,  But the language of our statute is much stronger ; being, that “all the estate, right, title and interest, in possession, reversion or remainder, which the testator hath, &c. of, in or to lands, &c. may be devised.” If the legislature had intended only to declare that estates in possession, reversion or remainder, might be devised, they would not have added the words right, title and interest, which, unless they meant something else than estate, were merely superfluous. But they have used the strongest words they could to express their intention, to render any right or interest in land (whether coupled with possession, or not) devisable. That such is the true construction of the act is said, in the argument of Davies v. Miller, 1 Call, 130, to have been heretofore decided by this court, and seems admitted by president Pendleton, in delivering the opinion in that case. Ibid. 131.
    Williams, in reply.
    1. The plaintiff in ejectment must make out a complete title against all the world; which is not done here: for the court cannot draw conclusions from a demurrer to evidence, farther than the facts stated will warrant, 
    
    2. I admit that Hall v. Hall was a case where an heir *at law, out of possession, had conveyed by bargain and sale. But the reason of the rule applies equally to a devise. It is to prevent the increase of litigation arising from conveyances of defective or disputable titles.
    The difference - in phraseology between our statute and that of Henry VIII. is but small. The former says nothing of persons out of possession ; except in case of remainder or reversion. A right of entry is not mentioned. In using the words “in possession, remainder or reversion,” the legislature had in view the policy of the rule relating to bargains and sales, and intended to apply it to devises. The true line of distinction is, between a devise of a contingency, and of a bare right of entry. Th<* former is devisable, the latter not.  No implication is to be drawn from the case of Davies v. Miller; for the point was not decided in that case.
    Call. The case of Hall v. Hall settles othe great principle that a person out of possession cannot convey a title to lands. The case from Hast (though a recent decision) is founded on Co. Hitt., Shep. Touch, and other old authorities. The plain grammatical construction of our act of assembly is, that the words “in possession, remainder or reversion,” are connected with the antecedent words “right, title or interest,” as well as with “estate;” so that the “estate, right, title or interest,” must be “in possession, remainder or reversion,” to be devisable.
    
      
       Ejectment. — See monographic note on “E j ectment” appended to Tapscott v. Cobbs, 11 Gratt. 173.
    
    
      
       Demurrerto Evidence. — On this subject, see mono-graphic note on “Demurrer to the Evidence” appended to Tutt v. Slaughter, 5 Gratt. 364. In Green v. Judith, 5 Rand. 1, the subject of demurrer to the evidence is discussed at some length, the principal case being cited at pages 15,18, 23, 24. The principal case was also cited in Harman v. Cundiff, 82 Va. 249.
    
    
      
       See Hoyle v. Young, 1 Wash. 151.
    
    
      
       Hall v. Hall, 3 Call, 488.
    
    
      
       Co. Litt. 259, a; Litt. s. 436; Co. Litt. 260, 261; Litt. s. 439, 440; cited 2 Bac. (Swill, edit.) 311, 312.
    
    
      
       Rev. Code, vol. 1, p. 109.
    
    
      
       See 2 Tuck. Bl. 332, 333, 337, and Rev. Code, vol. 1, p. 159, s. 14.
    
    
      
       2 Tuck. Bl. 375.
    
    
      
       2 Tuck. Bl. 290 ; 3 Sauna. 388, k., Selwyn v. Selwyn, 1 W. Bl. 222, 251, and 2 Burr. 1134; Roe, on demise of Perry, v. Jones, 1 H. Bl. 30-34, and Jones v. Roe, 3 T. R. 88, 93, 95.
    
    
      
       Rev. Code, vol. 1, p. 160.
    
    
      
       Hyers v. Green, 2 Call, 555.
    
    
      
       8 East, 564 — 566, Goodriglit v. Forrester.
    
   Monday, June 24th. The president pronounced the opinion of the court that the judgment be affirmed.  