
    Lessee of Rugge against Ellis.
    
      August 27, 1790.
    A good convey» anee under the statute of although d stand seised to bargainees use. A i>re-vious entry on the land is not the 1},;3 action: the action of e-jeetmeut may ^ ,-*• '(he
    THIS was an action of ejectment brought by the plaintiff, to recover a house and plantation, called the Quarter-4louse.
    
    The case was, that the plaintiff having occasion to be absent from this state for a short time, had constituted his brother, his attorney and agent during his absence. His brother, for him, and on his behalf, contracted with the de- ... fendant, to purchase the premises in question ; and an . .. . , , , , , agreement m writing (which the plaintiff now contended to be a complete conveyance) was made under seal, in presence of witnesses, the deed bearing date 10th August, 1785, which was iff substance as follows : “ That for and in con-46 sideration of 3,000/. the receipt whereof he thereby acknow- “ Iedged, did grant, bargam, sell, and 'convey, to the said “ William Rugge, and to his heirs and assigns for ever ; all “ the old Quarter-House tract, &c. (which was set forth “ and described:) also, 150 acres of land, more or less, tom-u monly called the neto Quarter-House, &c. (also set forth and “ described.) And the said Richard Ellis did thereby bind a himself,his heirs, executors, administrators and assigns, to “ make such other good and lawful titles, as should be requir- “ ed, for the purpose of vesting in the said William Rugge, “• his heirs and assigns for ever, a free, clear, and absolute u estate, in fee-simple ; and did covenant to warrant and fh “ fend the said William Rugge, his heirs and assigns for ever, “ of, in, and to the said tracts of land, from and against the “ claim or claims of all persons whomsoever, claiming, or to “ claim, by, from or under him, his heirs or assigns.” This deed was duly executed, proved and recorded. Underneath was the following note: “ It is also agreed, by and between “ the parties to these presents, that the said Richard Ellis is “ to have, hold, occupy, and enjoy peaceable and quiet pos- “ session, of all and singular the aforesaid premises, from “ the day of the date hereof unto the first of fanuary “ next; he, the said Richard Ellis, in consideration there- “ of, paying Is. sterling, when demanded, and then to deli- “ ver quiet possession thereof, unto the said William Rugge, “ his heirs and assigns ; in testimony whereof, I have here- “ unto set my hand and seal, this 10th of August, 1785.
    (Signed) RichaRD Ellis.”
    
      Read opened the cause, by producing the deed., which was admitted ; read it, and rested the case j the locus in quo being also admitted.
    
      Pinckney then moved, that the plaintiff be nonsuited, upon the ground, that the evidence offered was insufficient-to maintain the action, and said if the plaintiff refused, he should be denied the privilege hereafter, but must submit to the verdict of a jury, tie took two grounds; 1st. That this deed is not sufficient to convey the lands; 2d. If it were, this action could not be maintained without evidence of a previous actual entry, by the plaintiff, on the lands.
    
      Read, Pringle, and Ford, in support of the action,
    argued, that from the face of this deed, it was the evident intention of the parties, that the lands should pass; therefore, the court will effectuate that intention, and not let the defendant deny, what appears under his own seal. This is no freehold commencing in future. The grantor attorned as tenant, and acknowledged by indorsement on the deed, he was to hold and pay rent: this was a constructive livery, and was tantamount to the indorsement and livery upon the deed; that this deed agrees with a bargain and sale, or may be construed a covenant to stand seised to uses j that entry on lands is done away by the act of assembly, 1712, which declares an action at law to be the only legal method of claiming lands.
    
      Pinckney and Rutledge replied,
    and insisted, that the doctrine of attornment never applies between grantor and grantee, but only between landlord and tenant. As to bargain and sale, It cannot be construed either into a bargain or sale, or covenant to stand seised. The latter cannot be supported except by consideration of blood. As to entry, the clause in the act of limitation only intended to take away the necessity of continual claim at common law. That from a view of the deed, the parties did not intend this memorandum or agreement to be definitive, but a further conveyance was contemplated. The plaintiff ought not to recover, as has already been decided in a court of equity, where the court, seeing this deed was never intended to be the ultimate conveyance, refused a specific performance.
   Waties, J.

There are three questions which arise in this case: 1st. Whether there is any other mode of conveying lands in this state, besides by lease and release. 2d. Whether the plaintiff’s deed can take effect either as a feoffment, a bargain and sale, or a covenant to stand seised to uses. 3d. Whether the plaintiff can maintain this action of ejectment without entry. There is no doubt but that there may be different modes of conveying lands. The question depends upon positive law, and that law modern» The true intention of the different forms of conveyance is to ascertain the real proprietor of the land, and to make him notorious. This was the object of the statute of uses, which object is effected by extirpating the estate of the feoffee to uses. It was not the intention of the legislature of this country to restore the old investiture, nor to provide against secret uses ; but they adopted this statute to give facility to every mode of transferring lands. The act for recording conveyances passed long before, in the year ¡.698. As to the reasoning to shew that the legislature, in adopting the statute of uses, meant to exclude all other modes of conveyance under it, except the lease and release, it rests upon implication too slight to overturn the acknowledged operation of a positive statute. What advantage does the mode of lease and release possess over that by bargain and sale ? It is longer, more tedious, and more expensive. It was adopted and brought over here by the practitioners in England, and in use before the statute of uses was made of force. But the statute, when made of force, warranted as well the bargain and sale, and covenant to stand seised, as the lease and release.

2. What shall be the effect of this deed ; as a feoffment, a bargain and sale, or a covenant to stand seised. It would perhaps require much refinement to make it a good feoffment, Possession indeed, acquired in any way, might operate as good livery and seisin under it, and with the possession it would be a good title. But there is no need at ail of a strained construction to make this a good deed. I consider it as a good bargain and sale. The consideration was in part executed, and is acknowledged on the face of the deed. The terms of it shew a plain intent to pass the estate. The deed, therefore, must stand, unless it can be impeached, through fraud or some such thing, before the jury.

3. But it has been contended that entry was necessary in order to maintain this action. It is necessary to inquire what kind of injury is complained of in this case. Judge Blackstone, in his Commentaries, enumerates five kinds of ouster, abatement, intrusion, disseisin, discontinuance, and deforcement. The injury in this case comes properly under the last: “ Deforcement may also be grounded on the non- “ performance of a covenant real; as if a man seised of lands “ covenants to convey them to another, and neglects or re“fuses so to do, but continues possession against him, this “ possession, being wrongful, is a deforcement.” It is laid down in the succeeding page, that “ upon a discontinuance “ or deforcement, the owner of the estate cannot enter, but “ is driven to his action.” This solves all difficulties on the subject, and takes away the necessity, and, indeed, the pro. priety of a previous entry in this case. If, however, it depended upon the principles of this action of ejectment, the result would be the same, where the plaintiff’s lessor has a right of entry. The action is competent where the lessor of the plaintiff may enter. The question is not whether he has entered, but whether he may enter. 1 his action has been allowed in this country, even'where the right of entry has been tolled by descent cast. It ought to be so — the rigid forms of ancient real actions have long since been mouldering away, and giving place to others, more liberal and better calculated to answer the ends of justice.

The motion for the nonsuit was overruled, and on the case going to the jury, they returned a

Verdict for the plaintiff.

By an act of the legislature, since the determination of this case, a bargain and sale is declared to be a good deed to pat#* a fee in all cases, without livery and seisin. 
      
       Vol. 3. p. 107.
     
      
       Vol 3. p. 174,.
     