
    *Hall v. Hall.
    [Saturday, November 12, 1803.]
    Bargain and Sale — Possession of Bargainor. — If the title of the heir be abated by a stranger, be cannot convey it by deed of bargain and sale, before entry.
    In ejectment brought by William Hall against Mary Hall, the parties agreed a case, stating, that William Hall obtained a patent from Lord R^irfax, on the 21st of May, 1751, for 582 acres of land, and entered on and was seised thereof as the law directs.. That he devised the same to his sons Thomas and Joseph, for life, with remainder to their eldest sons and their heirs, but, if no male issue, to their eldest daughters.
    That the said William Hall died on the 10th of November, 1764, leaving seven sons, to wit, William, the eldest, James, Richard, John, Anthony, Thomas and Joseph; and four daughters, Rlizabeth, Ruth, Hannah and Sarah. That, at the time of making the will, neither the said Thomas or Joseph were married, or had issue. That Joseph died on the 1st of January, 1797, without issue, but leaving a will, whereby he devised an estate for life in 396 acres of the said land to his wife, who entered, and has been ever since possessed thereof. That William Hall, the eldest son and heir at law as aforesaid, by deed of barga5 n and sale, dated the 17th of October, 1797, granted to his son William Hall, the said tract of land, and the undivided, or divided moiety thereof. That, after the death ,of William Hall the elder, his sons Thomas and Joseph divided the said lands, and they and those claiming under them have held their respective allotments ever since. And if upon the whole matter, the law was for the plaintiff, judgment was to be entered for him as to one moiety of the land devised ■to Joseph and Thomas, being the lands in the declaration mentioned; otherwise, judgment was to be entered for the defendant. The District Court gave ^judgment for the plaintiff; and thereupon, the defendant appealed to this Court.
    Randolph. The special verdict does not shew that a partition was ever made; for, there can be no partition between joint-tenants, without deed, Co. Litt. 169: and the verdict does not find that any deed was actually made. The testator could not have contemplated the remainderman’s coming into possession, earlier than the death of both joint-tenants; and he had a right to give his estate as he pleased’.
    Steuart, contra.
    The verdict finds a partition ; and, that must, necessarily, be taken to mean a legal partition. Besides, by the act of 1786, [ch. 98, R. C. ed. 1819,] joint-tenants are made tenants in common; and of course, the plaintiff represented his ancestor. 'The title could not be in abeyance, but must have been in the heir at law.
    Randolph. The verdict only finds that there was a division, and not a partition. Of course, the answer given on the other side, does not avail. The estate ought to be considered as an estate pur autre vie; and, then the doctrine of occupancy takes place. This construction may be made, as it is the case of a will, although it might have been otherwise in the case of a deed.
    Cur. adv. vult.
    
      
      Deeds — .Possession in Grantor. — See tbe principal case cited in foot-note to Kincheloe v. Tracewells. 11 Gratt. 587; foot-note to Tabb v. Baird, 3 Call 475; Williams v. Snidow, 4 Leigh 17; Birthright v. Hall, 3 Munf. 538, 539. See also, foot-note to Duval v. Bibb, 3 Call 362.
    
   ROANE, Judge.

In this case William Hall the bargainor, in the deed of October, 1797, had either a right to recover the premises, in the event which has happened of Joseph Hall’s having died without children, or he had not.

If he could recover, it would be as heir to old William Hall, and as a reversioner of the estate in question.

*If he could not recover, then judgment should have been given for the defendants, upon the merits of the title.

But, if he himself could recover, it still remains to enquire, whether his bargainee, the lessor of the plaintiff, can recover, the bargainor not having entered after Joseph’s death; but, on the contrary, the appellant being found to have been in possession ever since his death?

This question then, is that, decided in Tabb v. Baird, ante 471, unless a difference shall be supposed to arise from the difference of the ouster in the two cases: The ouster, there, being a disseisin, and in this ease, I conceive an intrusion.

An intrusion is defined to be “an entry of a stranger after a particular estate of freehold is determined, before him in remainder or reversion,” 3 Black. Com. 14S.

I presume in this case, the appellant is considered as a stranger, although she claims (and entered) under the will of her husband.

But, in this species of ouster, as well as disseisin and abatement, an actual entry is necessary on the part of the disseised.

That entry not having preceded the conveyance in the present case, that conveyance is not valid according to the decision of Tabb v. Baird. The conveyance was of a mere right of entry. During the life of the particular tenant, his possession was the possession of the reversioner; but, upon his death, and the intervention of the possession of a stranger, the case was altered.

I must, therefore, in this point, give judgment in this case, against the present appellee, although I think at present, that the merits of the title are in his favor.

*1 am of opinion, that the judgment of the District Court ought to be reversed.

PER CUR.

Reverse the judgment.  