
    *See v. Greenlee.
    Decided, Feb. 19th, 1819.
    J. Ejectment — By Heirs of Patentee — Case at Bar.— The heirs of a Patentee of Land may recover in Ejectment, against a person who had the use and occupation of the land as his own, in the life time of the Patentee, and so continued until after his death: claiming to hold the same by adverse title; the duration of such possession having been less than twenty years.
    See Clay v. White, 1 Munf. 162; and Clay v. Ransome, Ibid 454.
    2. Conveyance of Land — Necessity of Possession by Grantee. — in such case, if the heirs, being out of possession of the land, have executed a deed of bargain and sale of the same to a third person, such bargainee can not recover in Ejectment; but the bargainors may.—
    See Hopkins and Watson v. Ward and others, ante. .
    3. Ejectment — Case at Bar. — Three demises were laid in a declaration in Ejectment; one, from thePat-entee of the land, who was dead; another, from his heirs; and a third, from a person to whom they had executed a deed of bargain and sale. The plaintiff recovered on the second demise; though he could not on the first or third.—
    See the same case, last cited.
    4. Same — Recovery on Demises of Dead Patentee.* — It seems, that a plaintiff in Ejectment can not recover on a demise from a person who is dead at the time of the action brought.
    This was an action of Ejectment, brought in October 1814, . for 400 acres of land in Mason County; the declaration containing three Counts; the first, setting forth a demise from Alexander Welch; the second, a demise from John Welch, Nancy Welch and Prances Welch; and the third, a demise from Michael See.
    At the trial, the plaintiff offered in evidence a patent from the Commonwealth to Alexander Welch, for 400 acres, admitted to be the land in controversy; dated the 2d of December 1785. He then proved by evidence, that Alexander Welch, the patentee, departed this life in 1809, leaving John Welch, Prances Welch and Nancy Welch, his only children and heirs at law. The plaintiff then offered in evidence a deed of bargain and sale from them to Michael See, for the same land, dated September 20th, 1813, and duly recorded. Here the plaintiff rested his title. The defendant then introduced sundry witnesses, who proved that he Edward Greenlee was in the use and occupation of the said land from about the year 1803 — 4, and had ever since continued to live thereon and use and occupy the same as his own, claiming to hold the said land under a title adverse to that of Alexander Welch, the father of the said John, Prances and Nancy Welch, and adverse to that of them and Michael See. The Court thereupon instructed the Jury, that, if they should be satisfied that, at the time the heirs of Alexander Welch executed the deed of bargain and sale to Miohael See, the defendant was in actual possession of the said land, *claiming it under a title adverse to their’s, then and in that case, they could not, while thus out of possession, convey, by deed of bargain and sale, such title as would enable the plaintiff to maintain Ejectment under the demise from Michael See.
    The plaintiff then insisted that, under the demise, in the declaration, from the heirs of Alexander Welch, he had a right to recover, although not upon the demise from Michael See: — but the Court instructed the Jury that, upon this demise, the plaintiff could not recover; ‘ ‘1st, because, from the plaintiff’s own shewing, the heirs of Alexander Welch, by the said deed of bargain and sale, had parted with all their right, to the said Michael See; which deed appeared to be in full force and effect between them and Michael See, although not sufficient to enable him to maintain an Ejectment: — 2d, that, by this deed, the defendant was enabled to shew a title out of them the said heirs, which was sufficient for him as the plaintiffs must make out a good title in themselves.” The Court also, for the like reason, instructed the Jury that the plaintiff could not recover -upon the demise made by Alexander Welch; and for another, — namely, that he appeared to be dead before the bringing of this suit. To which opinion and instructions of the Court, the plaintiff excepted; setting forth the Patent and Dee,d of bargain and sale in hajc verba. Verdict and judgment for the defendant; whereupon Michael See, one of the lessors of the plaintiff, appealed.
    Wickham for the appellee.
    Stauard for the appellee.
    
      
      See monographic note on “Ejectment” appended to Tapscott v. Cobbs, 11 Gratt. 172.
    
    
      
      See foot-note to Clay v. White, 1 Munf. 162.
    
   JUDGE ROANE

delivered the Court’s opinion.

On the authority of the case of Hopkins v. Ward, in this Court, the Court is of opinion that the lessee of the appellant had a right to recover under the second demise laid in the declaration. The Judgment is therefore reversed, and the cause remanded •for a new trial to be had, in which the instruction given in relation to that demise, is not to be repeated.  