
    DEN ON DEMISE OF H. G. SPRUILL & AL. vs. J. LEARY & AL.
    Where A, who liad a fee simple, defeasible in the event of his dying without issue living at his death, conveyed the land in fee with general warranty to B, and afterwards died without issue, Held, that the collateral warranty barred Ins heirs and those claiming under him.
    The ease Flynn v Williams, 1 Ire. 509, cited and approved.
    Appeal from the Superior Court of Law of Washington County, at the Fali Term, 1851, his Honor Judge Settle presiding.
    
      ■ James Jones was seized in fee of a tract of land, «OÍ which the premises were part, and in 1815, he devised it to his sons James, Jesse, Thomas, William and Frilev. and their heirs, equally to be divided between them; “and if at the death' of either or any of my said sons, they should leave no surviving issue, my will is, that the survivors or survivor of my said sons shall inherit the deceased child or children’s part of the land.” The sons entered, and one of them, Jesse, died in 1820, without having been married. In 1824, the other four united in a petition for partition, which was decreed and made; and thereby the premises described in the declaration,-, were allotted to the son William, as his share, and he entered therein, and on the 22d of Décember, 1825, he sold the same to Robert Blount, and ■conveyed them by a deed of bargain and sale, with a covenant of general warranty for himself and his heirs. Blount entered, and he and those claiming under him, including the lessor of the plaintiff, had a continued possession up to a short period before the commencement of this suit in March, 1851, when the defendant, Leary, took possession under James, Thomas and Friley Jones, who claimed the premises upon the death of William Jones, in 1849, without leaving issue surviving. Upon those facts, stated in a case agreed, judgment was rendered pro forma in the Superior Court, for the plaintiff, and the defendant appealed.
    
      Winston, Jr., for the plaintiff.
    
      Moore and Heath, for the defendant.
   Ruffin, C, J.

Without reference to any other point, that might be made on the case, it is sufficient to say, that the collateral warranty of William Jones, descending on his brothers, who were his heirs, bar| them; Flynn v Will iams, 1 Ire. 509. It is an artificial and hard rule, the practical operation of which, at this day, is to enable one man to sell another’s land without compensation, directly or indirectly; which is not agreeable to the reason and justice of modern law. But it is nevertheless the law, because it wa= undoubtedly so anciently, and the legislature has not seen fit to alter it. For, it is not within the Statute of Anne, Rev, Stat. ch. 43, sec. 8; and, as far as is seen at present, it is the only instance under our law which is not within that act. For, as estates tail under the act of 1784, eo instanti, the tenant becomes seized, aré turned i'nto fees absolute, the conveyance of the tenant passes that estate and the land, and consequently a warranty is useless. But the present case is not within the Statute of Anne, because William Jones was not simply tenant for life, nor entitled to the bare right to the inheritance, but had the fee simple in possession at the time he entered into the warranty. It is true, his fee was-defeasible by way of conditional limitation, upon his dying without leaving surviving issue. But it was not the less the fee, and he was not liable for waste or for forfeiture by making a conveyance of the fee. He had an estate to him and his heirs in possession, with an executory devise over in fee; and consequently his warranty is not one of those made void by the act, as the warranty of an anees: or, who had no estate of inheritance in possession of the land.

Per Curiam. Cu Í» a a> £3 bfl •73 f — i  