
    Jones et al. vs. Jones.
    A deed of cof|£ veyanct \ . xeeuted by a tenant in taiU and not enrolled within the time preferí.' ed by law, but enrolled there* after, and after the death of iho tenant in tail, tinder a decree of the court of chancery for that pur* po-e, cannot operate against the issue in tail.
    The court of chancery cannot decree that a deed of conveyance, executed by a tenant in tail, may be recorded aft¡ i* ,h< expiration of the ti.no ¡united by law for the recording* of deeds — estate tail act being ■wiUúa the proyi&b i?as of the get of 1785, ch. 72, s 1Z«
    Appeal from a decree of the Court of Chancery. The bill, filed on the 29th of July 1T99, by the appellants, as ' complainants* states, that Susanna Jones, mother of the complainants and defendant, being seized in fee tail of a tract of land in Saint Mary’s county, called The first awl second parts of Pountney’s Oversight, and desirous that the same, on her death, should descend to all her children equally", or be subject to her disposition by will, did by deed .of indenture, in due forrri of law, executed and acknowledged, together with Mathias Jones,.her husband, olí the 13th of July 1797, bargain and sell the same to Benjamin Williams, for the use and behoof of Mdthias, her husband, during his life, then to the use of Susanna during her life, and from and after her decease to the use and be-hoof of such person or persons, and for. such estate, and subject to such provisos, &o. ás she, Susanna, by any deed, &c. or .by her last will and testament, to be by her duly executed, should give, grant, limit or appoint, and for want of such appointment, or until such appointment, to the use and behoof of Susanna, and her heirs, for ever. Shortly after the execution of this deed, it was placed by Susanna in the hands of her husband, to be recorded;' and within six months from the execution'of the same Susanna was taken ill, and in prder to carry iiitp effect the power given by the deed to her to make a will, she sent for a person to write her wilf, (ánd gave directions for the land to be equally disposed off amongst all her children, but before the same could be formally done, she became incapable of executing it, áhd died in a short time there— lifter. Oh her death, Mdthias, the complainants’father, believing the deed was void, his wife not having been able io dispose of the premises by her will,’ omitted to have it ¡recorded. That it was owing to the want of information ¿f their father, and his ignorance of the operation of the ¿eed, that he permitted the time to elapse in which the deed shpuld have been recorded, and that it was not owing to any fraudulent design or intention of the party of parties claiming under the deed, that it was not recorded agreeably to' law. That their father was also seized in fee in his own right, óf a considerable real estate in the said county; that he entertained doubts whether the land mentioned in the deed Was actually entailed on his wife, or washer’s in fee simple, but on being fully made sensible the same was entailed; and that the deed would have been effectual to dock the entail; though recorded'aftér his wife’s-death, by which means the land Would have descended’ équally, hé, in order to do justice to his younger children, resolved, that unless the defendant Would relinquish hi» claim by primogeniture, and place his brothers and sister» in the same situation with himself, to convey all his own! estate amongst the younger children to the exclusion of tin» tildes t; but that from sudden indisposition, and a hasty death, the father was prevented from effectuating his determination; and that by his death intestate, his estate descended equally amongst all his children, by which the eldesTstm, the defendant, claims tin; whole of the mother’s, and an equal share of his father’s cn«ie. Prayer, that the deed may be recorded, &c. The defendant demurred to the bill.
    Hanson, Chancellor, (December 16, 1803.) It hag, or k former occasion , been determined by the general court, on a case submitted, that a deed executed by a tenant ia tail, and not recorded within six months, bpt recorded after the tenant’s death under a decree of this court, should Hot operate against the issue in tail. This being the case, the party claiming under the deed, has not a title to the land, and therefore the chancellor conceives, that he cannot, with propriety, decree the recording of the deed___ Decreed, that the demurrer in this cause filed be allowed, and* ruled good, and that the defendant be hence dismissed, but without costs, the chancellor deciding merely on the opinion of. the general court, in a single instance given, and never affirmed by the court of appeals.
    The chancellor here takes occasion to observe, that he always decides according to the known opinion of the court of appeals, or that of the general .court, where the court of appeals has given no opinion; but that there ought to be a distinction between the decision of the court of dernier resort, and of a court below. The chancellor knows sot but that this suit is instituted for the purpose of obtaining the opinion of-the court of appeals. From this decree the complainants appealed to this court.
    The cause was argued before Chase, Ch. J. Tilghmanj Buchanan, Nicholson and Gantt, J,
    
      Key, and Johnson (Attorney-General,) for the Appellants,
    referred to'the acts of 1773, ch. 1, and October 1782, ch 23. Laidler vs. Young’s Lessee, (ante 69.) The act of 1785, ch. 72, s. 11. Pow.on Lev. 393. Wills vs. Palmer, 5 Burr 2615; and Hampson vs. Edelen, (ante 64.)
    
    
      Martin and W. Dorsey, for the Appellee,
    cited 2 Bac, Ab. tit. Estate in Tail, (D) 553. Ross vs. Ross, Chan, 
      Ca. in.. Ridgely vs. M'Laughlin, 3 Harr. & M‘Hen, 220; and Todd et ux: vs. Pratt, 1 Harr. & Johns. 465.
    
      
      yay llijgdy vsv M‘LaugUint 3 JIarr. & 220.
    
   Chase, Ch. J.

I am of opinion that the decree of the. Chancellor be affirmed-, with costs.

It is certainly an established principle, that the heir or-issue in tail claims the land per formam donr, and does-not derive his title to it from the tenant in tail, who in respect of said land is nothing more than the conduit pipe, through wjiich the title to the land is conducted to the issue in tail, whose claim to it is from the donor according, to the gift. The land of the heir, or. issue in tail, is not, liable to the debts of the tenant in tail, nor is he compellable to execute or fulfill any contract made by his ancestor for t,he sale or conveyance of said land. The issue in,' tail cannot be barred of his right,, but by fine, common recovery, or deed executed according to act. of assembly. The deed to bar him must be operative in the life-time of the tenant in tail, for immediately on his death the title of the issue attaches.. If the deed had been recorded wrjjunt, the six months, it would have operated by relation, from the date of the deed, and would have barred the issue in. the life-time of the tenant in tail,.

An estate tail is, not within the aqt of 1785, ch. 72, for recording deeds.. The petition must be filed against the, Ijeir, devisee, executor, or administrator of the grantor,, ^nd with respect to the land entailed, the heir or issue in tail is neither heir, devisee, executor or administrator.

I have shown he cannot be considered as heir. If the land was devised to him by the tenant in tail, he would, not take as devisee, but by a title paramount per formam, doni, which accrues eo instante of the death of the anees-; tor.

The case of- executor or. administrator can only relate to estates for years or an estate for the life or lives of others? from all which the conclusion is fair, and irresistible, that an estate tail is not comprehended within the act of 1785.

This question was decided by the judges of- the general court, on a reference to them by the chancellor, at May term 1794, in the case of Charles Ridgely, of William, against William M'Laughlin, (3 Harr, & M'Hen. 220.) which decision was adopted by)(the chancellor, acquiesced in by the parties,, and has since been considered as thq law,^

Tii.otíman, Buchanan and Nicholson, J. concurred. Gantt, J. dissented.

DECREE AFFIRMED.  