
    GENERAL COURT,
    MAY TERM, 1790.
    
    Henry Griffith’s Lessee against Charles Ridgely, by John Ridgely, his Guardian.
    EJECTMENT for a tract of land called Timber Neck. lying- in Baltimore County, containing 200 acres of land, one undivided moiety whereof Henry Griffith demised, &c.
    At the trial of the cause four bills of exceptions were taken.
    By the Jirst, it appears, the defendant,'to maintain the issue on his part, and to make title to the land mentioned in the declaration, produced to the Court, and read in evidence to the Jury, an act of Assembly passed at October session, 1725, c. 17. entitled “ An act to enable Orlandt Griffith and Catharine his wife to sell the moiety or half part of a certain tract of land hereafter mentioned, and for entailing other land in lieu thereof.” The preamble of the said act recites, that “ John Howard,, by his will did devise to his two daughters, Rachel and Catharine, the tract of land called Howard’s Timber Neck, to be equally divided betwixt them, during their natural lives, and to the lawful begotten heirs of their bodies, and for want of such heirs, to fall to his son Benjamin, and Ms heirs and assigns for ever,” which said Catharine had intermarried with Orlando Griffith, and by whom she had issue. That the said tract originally contained 200 acres, but which, upon inspection, did not contain so much, and that the part assigned for the said Catharine, being at most only 100 acres, is too small for a settlement, &c. The said Orlando and Catharine, by their petition also set forth, that Charles Ridgely had intermarried with the aforesaid Rachel, to whom the other moiety was devised, and that the said Charles was desirous to buy the part belonging to the said Orlando and Catharine his wife, provided an act should be passed to bar the entail, &c. That the petitioners were willing that there should be entailed 100 acres in the same manner, out of the vacancy added by the said Orlando to a tract given him by the said John Howard, likewise under entail to the aforesaid Catharine, called Howard’s Lurk, which will be far more advantageous to all persons .claiming under the entail of Howard's Timber Neck. It was therefore by the said act declared and enacted, “ that the said Catharine, and the lawful begotten heirs of her body, and for want of such heirs, Benjamin Howard, his heirs and assigns for ever, shall from henceforth, by virtue of this act, have the same estate, right, title, of, in and into, one hundred acres of land out of the vacancy added as aforesaid by the said Orlando Griffith to the aforesaid tract af land called Howard’s Luck, lying in Anne Arundel County, in the possession of the said Orlando now being, as she the said Catharine and her lawful begotten heirs, and the said Benja?nin Howard, his heirs and assigns, should or ought to have had in case the said 100 acres of land had not been devised in the same manner that the devisor hath devised the aforesaid tract of land called Ijoward’s Timber Neck, by his said will, and in case the said 100 acres had been devised as aforesaid in lieu of the said Catharine’s moiety or half part of Howard’s Timber 
      
      Neck aforesaid.” It was likewise enacted, “ that the said Orlando Griffith and Catharine his wife, be hereby vested with an absolute estate of inheritance in fee-simple, of, in, and unto, the aforementioned moiety or half part of How-Timber Neck aforesaid, given as aforesaid to the said Catharine; and be, and they hereby are enabled to convey an absolute estate in fee-simple thereof, to any purchaser or purchasers, their heirs or assigns, in as full and ample manner as if the same land had been devised to the said Catharine and her heirs for ever, by the will of the said devisor, without any limitation of estate therein, any thing in the said will, or any law, statute, usage or custom to the contrary notwithstanding : saving to his most sacred majesty, his heirs and successors, and to the right honourable; the lord proprietor, his heirs and successors, and all bodies politic and corporate, and all others not mentioned in this act, their several and respective rights.”
    The defendant prayed the opinion of the Court, that by virtue of the said act of Assembly, a joint estate of inheritance in fee-simple, passed by the said act of Assembly to Orlando Griffith and Catharine his wife. And the Court (Johnson, Ch. J. and Goldsborough, J.) were of that opinion, and accordingly directed the Jury. To which opinion the plaintiff excepted.
    2. By the second exception it appears, the plaintiff, to make title to the tract of land in question, produced and read in evidence to the Jury, a grant from the lord proprietary, dated the 20th of June, 1668, to John Howard, of the said tract of land, in virtue of which grant the said Howard entered into possession of the said land, and died in the seisin and possession thereof.
    The plaintiff also gave in evidence to the Jury, that the said Howard, by his will of the 29th December, 1703, devised the said land to his two daughters, Rachel and Catharine in fee tail, as tenants in common, who, in virtue of the said devise, entered and were seised in tail, as tenants in ueramou. That Catherine Howard married Orlando Grif 
      fth, about the year 1716, and Rachel Howard, married Charles Ridgely, about the year 1721, and died in the year 1750; that Orlando Griffith and Charles Ridgely, in right of their wives entered; that Charles Ridgelu died in 1772, and that the defendant is his heir at law ; that the said Catharine had issue by the said Orlando Griffith, Nicholas Griffith, her eldest son, who died under age and without issue, and Henry Griffith, the lessor of the plaintiff, her heir at law; that Orlando died in March, 1757, and Catharine in February, 1783.
    The defendant, to maintain the issue on his part, and to make title to the tract of land in question, produced in evidence the act of 1715, c. 17. (setforth in thefirst exception,) also a depd from Orlando Griffith and Catharine his wife, to Charles Ridgely, husband of the said Rachel, bearing date the 14th September, 1726, conveying to him one moiety or half part of Timber Neck, by virtue of which deed the said Ridgely entered into the said land, and was thereof possessed, and being so possessed, Orlando Griffith and Catharine his wife, executed a deed bearing date the 2d May, 1752, to Charles Ridgely, reciting that the said Orlando, on the 14th of September, 1726, by his deed did convey to the said Charles, one moiety or half part of Timber Neck, and which said deed being considered defective by reason of the said Catharine's not being a party therein, the said estate being the inheritance of the said Catharine, the present deed is executed. The deed then conveys the land in question to Charles Ridgely, in fee-simple, and contains the following warranty. “ And the said Orlando Griffith and Catharine his wife, for themselves and their heirs, the said tract or parcel of land, and all and singular other the premises, with their and every of their appurtenances unto him the said Charles Ridgely, his heirs and assigns, against them the said Orlando Griffith and Catharine his wife, and their, or either of their heirs, and all persons claiming by, from, or under them, or either of them, .shall and will warrant and defend by these presents.” The deed was arknewledged by Orlando Griffith and Catharine his wife, before two Justices of the peace, without any private examination of the wife.
    The defendant prayed the direction of the Court to the Jury, that by the said deeds and the warranty contained in the last-mentioned deed, the lessor of the plaintiff is rebutted from recovering the premises mentioned in the declaration in this cause, without any proof of assets having descended to him in fee from the said Orlando Griffith.
    
    3. By the third exception, in addition to the evidence-in the preceding exceptions, it appeared that the defendant offered in evidence deeds of lease and release, from Catharine Griffith of Anne Arundel County, widow of Orlando Griffith, to Charles Ridgely, dated the 9th and iO^i days of March, 1773, acknowledged before two Justices of the Peace, with a certificate from the Clerk of Anne Arundel County, that “ the gentlemen before whom the above acknowledgment appears to have been taken, were, at the time of taking the same, two of his Lordship’s Justices of the Peace for Anne Arundel County, and that to all acknowledgments, so taken, and by them signed, full faith and credit is, and ought to be given.” Which deeds, acknowledgments, and certificates, appear to have been recorded in the land records of the Provincial Court. The release was for the purpose of suffering a common recovery, for barring all estates-tail in the tract of land in question.
    The plaintiff gave in evidence that the said deeds were not enrolled and recorded in Baltimore County within six months after the dates of the said deeds, and .that Catharine Griffith, at the time of making the deeds until her death, did live and reside in Anne Arundel County, and not in Baltimore County; and that the two Justices of the Peace who took the acknowledgments, were, at the time of taking the acknowledgments, Justices of Anne Arundel County Court, and not Justices of Baltimore County Court, and that the certificates of the Clerk of Anne Arundel 
      County Court, endorsed on the deeds, were made by him on the 30th day of April, 1773, and that the said deeds were recorded in the land records of the General Court, on the 27th day of April, 1773.
    Thereupon the plaintiff’s counsel prayed the Court to direct the Jury, that the deeds from Catharine Griffith to Charles Ridgely were not sufficient in law to pass the estate of the said Catharine to the said Charles Ridgely; because at the time of making the said deeds, and taking the acknowledgments thereof, the lands in the said deeds mentioned, did lie in Baltimore County, and the said deeds were not recorded in Baltimore County, agreeably to the act of November session* 1766, c. 14.
    
      Arguments on the second and third prayers,
    
    
      Cooke, for the defendant.
    On the 20th June, 1668, Timber Neck was granted to John Howard, On the 29th December, 1703, John Howard devises to his daughters Rachel and Catharine, Timber Neck, as tenants in common in tail. In 1716, Catharine married Orlando Griffith, and in 1721 Rachel married Charles Ridgely, On the 30th October, 1725, Griffith and wife obtained an act of Assembly vesting the estate to them in fee-simple jointly, with power to convey in the same manner as if it had been devised to the wife in fee by the will aforesaid. On the 14th September, 1726, Orlando Griffith conveyed to Charles Ridgely, but his wife did not execute the deed: she only relinquished her right on examination before two Justices of the Peace. On the 2d February, 1744, Charles Ridgely executed a warrant of resurvey, added vacancy, and called the whole Timber Neck. On the 2d of May, 1752, Orlando Griffith and wife, reciting the defect of the deed of the 14th of September, 1726, release and confirm to Charles Ridgely, his right to the said land, with warranty. In 1750, Rachel, the wife of Ridgely, died. In March or April, 1757. Orlando Griffith died, leaving Catharine his wife, who survived hirrí, and leaving the lessor of the plaintifi his heir at law, who now claims in right of his mother Catharine. In 1772, Charles Ridgely died, and the premises descended to Charles, the son of John, his grandson, Catharine then being a widow- On the 9th and 10th of March, 1773, deeds oflease and release were executed, and common recovery suffered by Catharine, to the use of Charles Ridgely. These deeds were acknowledged before two Justices of the Peace of Anne Arundel County, and recorded in the General Court office. It is also contended by the plaintiff, that at the time of the acknowledgment of these deeds, Catharine was insane. She died in 1783.
    1st. By the act of Assembly, passed in 1725, c. 17. the estate-tail of Catharine, in a moiety of the premises, was changed into an estate in fee to the husband and wife ia the entirety. The act declares they shall hold in fee-simple, an absolute estate of inheritance, and makes no limitation of the estate in case they die without issue ar the will had done, which gave it to the wife in tail. The act is to have a liberal construction. 2 Bl. Rep. 1211. 2 Vez. 337. 354, 355, 356.
    2. The husband, being seised of an estate of inheritance, the deed of the 14th September, 1726, passed such interest as he might legally pass; though it could not operate to convey the estate of the wife, she being no party to the deed.
    . The deed may operate as a feoffment. If it operates as a bargain and sale, it will convey a base fee till the entry of the wife. Cro. Jac. 332. 417. Law of Ejectm. 102. If as a feoffment, it would be a discontinuance at law. Litt. sec. 594.
    3. The deed of the 2d May, 1752, though not properly-acknowledged, is good as a release and confirmation from Orlando Griffith, whereupon to ground the warranty. Shep. 181. Co. Litt. 265. a. 385. a. 371. a. b. Shep. 327. All deeds are to be construed with reference to their subject matter. 1 Burn. 703. This deed is good as a release, without being- recorded.
    
      4. If the deeds of lease and release of the 9th and 10th of March, 1773, are void, and consequently there is no good tenant to the praecipe, yet the common recovery will operate by way of estoppel. Cruise, 72. Cro. Car. 388. Pig. 33. Sty. 320. Cro. Eliz. 321. But if the convey* anee of Orlando Griffith conveyed a base fee, which continued until it was destroyed by the entry of the wife, the possession of Ridgely and the descent on his grandson made him a good tenant to the praecipe. See 3 Co. 3. contra.
    
    There has been a separate and exclusive possession since the year 1726. The act of limitations commenced on the death of Griffith, in 1757. It run more than 28 years before the bringing this ejectment. If a person comes into possession under an agreement, yet if he holds beyond the term, the act of limitations runs. Cowp. 218. Twenty years’adverse possessionis a positive title to the defendant, 1 Burr. 119.
    At common law, all warranties lineal or collateral, did bind (without assets) the heir they descended on, unless it began by disseisin. Litt. sect. 697. The first law whereby they were restrained was the statute of Gloucester, which barred only a tenant by the curtesy from making a warranty, unless he left assets to descend. But all others stood as they did at common law. Then came the statute ds donis, which creates an estate-tail, and restrains the alienation of it; otherwise estates-tail would have been in the same situation as all other estates' at common law.
    Warranties arc not mentioned in the statute de donis, but the Judges, adopting the rule in the statute of Gloucester, by the equity of the statute de donis, made it necessary that a lineal warranty to bar an estate-tail should have assets to descend. Frcem. 60.
    Antecedent to the statute de donis, the distinction of lineal and collateral warranty was unknown and never heard ©f till a considerable time after this statute ; but the inconveniences of preventing alienation having soon appear-; ed, the construction of the Judges, and other statutes, soon broke the fetters of this kind of inheritance.
    The Judges in Taltar am?s case let in common recoveries in lien. Vllth’s time. 4 Hen. VII. c. 24. and 32 Hen. VIII. c. 36. let in alienation by fine. 26 Hen. VIII. c. 17. forfeitures for treason; and by 33 Hen. VIII. c. 39. liable to the debts of the king.
    Soon after this the Judges determined that the statute de donis did not provide absolutely against the alienation of estates-tail, but only against the alienation of the donee ; and therefore, that the warranty of any other person descending on the issue in tail without assets, should bar him; and this introduced the collateral warranty. Harg. Co» Lift. 373. b. note.
    
    Thus stood the laty until the act of 4 Anne, c. 16. s. 21. which takes away collateral warranty, unless the ancestor is seised of an estate of inheritance in the land at the time of •making the warranty. 2 Bl. Com. 30,3.
    If it is objected that a warranty can only be commensurate to the estate to which it is annexed, and that the hus - band had no right to convey an estate beyond his own life, and that upon his death the estate conveyed by him ceased, and the warranty annexed to it also,; it may be answered, that this can only relate to cases where the continuance of the estate appears on the face of the deed to which the warranty is annexed, as warranty annexed to an estate-tail will continue only while the estate-tail continues. So if an estate is made on condition which is defeated by breach of condition. Co. Litt. 387. a. 385 a. 10 Co. 96. b.
    Here the estate intended to be conveyed is an estate is fee, and the warranty is commensurate with the estate.
    If it be said that the estate was determined by the widow, by the admission of Ridgely that he took under the lease and release of the 9th and 10th March, 1773, from Cathay riñe; it may be answered, that those deeds were executed tor a particular purpose, to confirm the estate which was before granted to Ridgely ; but to give them this construetion would be to defeat the estate, contrary to the express intention of the parties'.
    But if the lease should have the construction contended for, it can only operate to avoid the estate for one year, and if the estate is avoided in part only, the warranty remains. 2 Roll. Abr. 741. Co. Litt. 393. a. 388. b. note 1.
    As to the warranty it is immaterial whether it is collateral or lineal. If it is considered as a collateral warranty, yet the husband being seised Of the entirety of the inheritance at the time of making the deed, the warranty is good without assets. Litt. sect. 711. 713. Shep. 190. note.
    
    If it is considered that at the time of making the deed the heir mightj by possibility, inherit to Orlando Griffith, and consequently the warranty lineal, still it will operate as a bar. Co. Litt. 371. b. Litt. sect. 715. Hutt. 23. Litt. sect. 708.
    A future right may be barred by a warranty, though the warranty descend first. Co. Litt. 388. a. b. 371. b. So vice versa. Co. Litt. 374. b.
    A warranty may be at first lineal, and by subsequent event become collateral. Co. Litt. 371. b. Litt. sect. 708.
    If a deed be enrolled which is not required to be so bylaw, the copy of the enrolment is good evidence. 2 Vern. 471. 591. Bull. 251. If ancient, Gilb. Law Ev. 101. 95, 96, 97. 2 Bac. Abr. 308. 1 Vent. 296, 297.
    Warranty may be given in evidence in ejectment, and need not be pleaded. 10 Co. 97. b. 1 Co. 120. b.
    If the husband makes a feoffment at common law, it was a discontinuance to the wife, and she was put to her chi hi vita. Litt. sect. 594.
    
      Vide 2 Bl. Comm. 127. 3 Com. 433. 2 Inst. 294. 2 Salk. 685. 1 Freem. 57. Co. Litt. 373. b. Litt, sect. 708, 715. Hutt. 22.
    The heir at law cannot recover an estate-tail where, there has been a recovery of the ancestor erroneous, and not reversed by writ of error. Co. Litt. 349. b. 3 Co. 3. a.
    The parties having an estate in the entirety, the conveyanee made by the father of the lessor of the plaintiff was a ljneai warranty, and bars without assets. Co. Litt. 371. b. Sect. 715. 708. Mutt. 22. Though lineal at creation, it might be afterwards collateral. Litt. sect. 708. Co. Litt. 371. If collateral, it is good, and not within the statute of Anne, because he was seised of an estate of inheritance. Litt. sect. 711. 713. Shep. 190. note.
    
    The first deed conveyed only at will, and therefore the second deed is good by release at the time it was made. If it is said that it passed under the statute of uses, it may be answered that the release is a conveyance at common law. Co. Litt. 330. note. If the deed of release is void, yet the warranty is good. Co. Litt. 385. Shep. 327. But if a base fee was conveyed, determinable on his death, yet it was necessary to avoid it by the entry of the wife Cro. Jac. 332. 417. Gilb. Eject. 102.
    A warranty conveys no right, but only rebuts the right of the party and his heirs who makes the warranty. If a man has no right at all, yet he may by a warranty rebut any future title that shall accrue to him. Co. Litt. 385. Shep. 327.
    The distinction taken would defeat all warranties; for according to their doctrine wherever the estate is defeated there is an end of the warranty. But on the contrary, one can never recover on a warranty until the estate is defeated.
    
      This is a case, if ever there was one, in which the court will make every intendment in their power to defeat the claim of the plaintiff.
    They will do it because it was the intention of his ancestors, under whom he claims, to have passed this estate • to the family of the defendant.
    It was the intention of the legislature to have remedied the defects of such conveyances. They will do it because die defendant, and those under whom he claims, has more than once paid a valuable consideration for this property, and is justly entitled to it in equity.
    That the ancestors of the defendant have amply paid for this property, and that it was the intention of the iinmediate ancestor of the plaintiff to have given a title to what they have sold, no one will deny.
    That the legislature intended to have cured all such defects, no one can doubt. It is within same reason of all the cases that are particularly enumerated, and being within the reason, ought to be within the remedy, if, by possibility, such construction can be given to the act.
    That such construction may be made without any violation of the words, I think has been shewn.
    But if this deed is not remedied by the act of 1785, c. 9. to operate as a release; yet, taken with the common recovery, I contend it is sufficient to rebut the equity of the plaintiff.
    Common recoveries are common assurances, and operate as conveyances. Then here is a conveyance to Alexander the demandant; but the gentlemen say, to the use of Mrs,. Griffith.
    
    What is the reason that the use results to the person suffering the common recovery, if no other uses are declared. [Cruise, 79. Cro. Car. 388. S3. Cro. Eib. 31. Sty. 320. The reason, because when he is vouched he comes in as tenant, and the count is agabv* him. Co. Litt. Estoppel, 352. a. b.]
    If the act of 1766, c. 14. takes in all kind of conveyances, then such use shall not pass to Mrs. Griffith, unices they shew it in writing.
    If the act does not extend to a use of this nature, and they can offer evidence to shew that she was the real owncj of the land, and the use, by intent and operation of law, results to her, then upon the same principle we rosy oifc’ evidence to rebut that equity.
    'H-'u:;u’r-e the mtention of the. psríic.-¶ will he law, that the person will not part with his estate, unlesr there is some consideration for it.
    But if you.can shew there was a consideration, or that the intent of the parties was not that the use should result t© tpe grant0r, you may do it.
    Instance the case of a devise, making an executor; the residue is given to him by operation of law ; but you may rebut that equity by parol evidence;
    But how is it to be shewn that the use of this recovery-resulted to Mrs. Griffith P She was neither tenant nor demandant;
    Suppose this had been a real proceeding instead of a fictitious one; if she had conveyed the estate to Ridgely, and the writ had been brought against them, and he had vouched her, and she had vouched William Rawlings; would the recovery have enured to her use? Certainly not. Then why in the case of a fictitious recovery ? Because the law-looks at the intention of the parties, and sees for whose be nefit it was intended.
    But this recovery was not intended for her benefit, and therefore we may rebut that presumption arising by operation of law, by shewing the intent of the parties.
    But if we consider this case in another view, it will clearly appear this recovery cannot, by opeY>tion of law, enure to the benefit of Mrs. Griffith.
    
    We have seen that by the conveyances in 1752, in which she joined, a defeasible estate of inheritance passed to Ridgely, liable to be defeated on the entry of Mrs. Griff fith or her heir.
    We have seen that by these deeds of 1773, an equitable interest passed from her, and it is at best doubtful whether the legal interest has not passed also.
    Then wherever there is a defective, defeasible estate created, and a recovery afterwards suffered, that recovery shall enure to make good all the defects of the former conveyances.
    Mrs. Griffith might have entered and defeated these acts; but as she did not, and suffered ft recovery expressly for the purpose of effectuating them, the recovery shall enure to make them good by operation of law. Cro. Jac. 417. 1 Wils. 277. 1 Atk. 7, 8.
    Common recoveries are not within the conveyances intended by the act of 1766, c. 14.
    The spirit of that law was to avoid secret conveyances, and to have a record to which purchasers and creditors might resort for notice.
    The common recovery is a record of itself, to which all persons may resort and obtain that notice. Then if the recovery is not within the intention of the law, there is no reason why we may not rebut the equity of the plaintiff by evidence of this nature. If it is within the law, there is no resulting use at all. But if there is a resulting use, I have shewn that the recovery enures to let in the equitable title of the defendant.
    Martin, (Attorney-General.)
    By the operation of the act of assembly, Griffith and wife took an estate in fee-simple in the entirety, and Griffith could not convey by himself any estate, but to determine on his death, which happened in the present case, when the land survived to his wife. 2 Bl. 1214. 2 Vern. 120. Baron and Feme, 210. In 1726, Orlando Griffith made a deed: it is immaterial whether that deed is good or not, or whether it is aided by the act of assembly of 1785. Can the release be better than the deed of 1726, if good. That deed being a deed under the statute of uses, conveyed to Charles Ridgely and Ms heirs all the estate Orlando Griffith had. A release or confirmation to a person having a legal estate cannot confer a greater estate than was before granted. Admit Orlando Griffith to be tenant at will, yet the second deed of release could only enlarge the estate as far as Orlando Griff* fith had it.
    • The second deed can only operate as a release. A release operates in one of four ways; by 1. Mitter le estate.. 
      
      2, Mitter le droit. 3. Extinguishment. 4. Enlargement, This release operates as an enlargement, but can only con» vey as far as Griffith had a right to dispose of the land, that is, all his interest and no more. And this is on the suppo= sJtion that Charles Ridgely was not tenant in common, which he was, and therefore could take no release. Will the release create a greater estate than Orlando Griffith had in the land; devest the estate of Catharine Griffith, and there by work a wrong.
    A warranty cannot operate both as a lineal and collateral warranty. The plaintiff might have inherited from Orlando Griffith if he had survived his mother, but as the mother survived the father, he inherits from his mother, and this is a lineal warranty, because Orlando Griffith had a right, conjointly with his wife, and a chance of the whole if he survived. A warranty by the ancestor, if he had no yight but by disseisin, will bind his issue on the supposition that no ancestor will injure his heir without giving him a recompense or satisfaction. A collateral warranty does not enlarge an estate passed by conveyance, 10 Co. 97. Orlando Griffith could pass no estate but one determinable on his death, if his wife survived. If an estate passes by a conveyance with warranty, it does not enlarge it; but when the estate is avoided or ceases, the warranty ends with it, 5 Bac. Abr. 449. 10 Co. Seymour’s case. Warranty never bars unless the estate is turned to a naked right. 10 Co. 97. Did the release by Orlando Griffith to Charles Ridgely, who is admitted to be a tenant at will, turn the estate of Catharine his wife to a naked right ? did the deed affect his wife’s interest, he did what he lawfully might do, and no more.
    No man can be tenant by the curtesy until after the death of his wife. The words of the statute of Gloucester does include the present case. The statute of Gloucester is to have a liberal construction, and if the case is within the letter and the mischief of the statute, it should be construed to be within the statute. The first clause pre ents te Hants by the curtesy from injuring the heir, and extends to tenants for life. The heir cannot be barred by a convey - ance and warranty made by the father in the life of the mother. This case is within the mischief of the statute of Gloucester, or it is not. If within the mischief, the decision ought to be for the plaintiff. The warranty is lineal, and cannot bar the person claiming from his mother and no % from his father, \vho made the warranty, The deed of Orlando Griffith either turned the estate of his wife to a naked right, or it did not. If it did, it is a disseisin, and the warranty cannot operate. If it did not, but only passed an estate for the life of Orlando Griffith, then the warranty expired on his death. 2 Bl. 302. A warranty cannot enlarge an estate. 1 Bulst. 163. 166. 22 Fin. Abr. (Voucher,) 34. It is a maxim of law, that no warranty shall extend to bar any estate of freehold or Inheritance which is in esse in possession, reversion, remainder, (and not displaced and put to a right,) before or at the time of the warranty made, although afterwards, and at the time of the descent of the warrant, the estate of freehold or inheritance was devested. 10 Co. 96, 97.
    
   The Court, on the second prayer, were of opinion, and so directed the Jury, that the warranty contained in the said deed bearing date the 2d of May, 1752, is a lineal warranty, and does not rebut and bar the claim of the lessor of the plaintiff unless it be proved that he received assets by descent from Orlando Griffith. To this opinion the defendant excepted.

(Johnson, Ch. J. and Goldsbokougu, J.,)

On the third prayer the Court were of opinion that the deeds of lease and release were sufficient in law to pass the estate of the said Catharine Griffith to the said Charles JRidgely, and directed the Jury accordingly.

The Court also were of opinion, that the words of reference “first herein mentioned’’ in the act of assembly of 17G6, c. 14. s. 3. relates to the Provincial, Court and it is within the equity of the act, that the deed should be recorded in the General as well as the County Court, and no reason can assigned why it should not. There is a reason why the certificate should go from one county to the other, because the Justices of one county had no cognisance of the powers of the other. But the General Court Judges pervaded the whole, and the commissions of the Justices of the P eace are all recorded in the office of the General Court. If it had not been for the last clause, the clerk of the county would have had no authority to record the deed at all, but only the clerk of the General Court.

The plaintiff excepted to this opinion.

By the 4th exception it appears: The plaintiff offered evidence that on the day before the execution and acknowledgment of the deeds of lease and release from Catharine Griffith to Charles Ridgely, the said Ridgely sent to Joshua Griffith, son of the said Catharine, the following letter, viz.

“ Sir — Í shall be up at your house on Monday morning to see you and your mother concerning the land I hold called Timber Neck. If there should be any thing doubtful in my title, I hope it will be in our power to settle amicably with your assistance. If your mother should not be at your house, I should take it a favour if you should get her there on Monday morning if agreeable. If it is not in your power to do it, I beg you will let me know where I may meet with you and her on Monday morning.

Charles Ridgely, son of Jno.”

That the said Joshua Griffith sent for and procured the attendance of the Justices who took the acknowledgment of the. said deed, and held and guided the hand of the said Catharine while she signed the said deed; also that the said J ustices, at the time of the execution and acknowledgment of the said deed, trusted to the information of the said Joshua Griffith as to the said Catharine’s having any knowledge of the contents of the said deeds, without inquiring of the said Catharine whether she knew the contents thereof, or reading the said deeds to her, or informing her of the contents thereof. And further gave in evidence the depositions of the two justices before whom the said deeds were acknowledged, stating that the deeds were not read to the said Catharine by them, and that she was very deaf, and that the said Joshua Griffith received from the said Charles the consideration for which the said deed was executed.

The plaintiff further offered in evidence that the said Catharine Griffith, at the time of the execution and acknowledgments of the said deeds had not sufficient reason and understanding to make a deed to convey land or dispose of property; and offered further to prove this fact by hearsay; and that the said Joshua Griffith, some little time after the execution and acknowledgments, did declare, that he was present at the execution of the said deeds and acknowledgments thereof; that his mother, the said Catharine, knew nothing- of it; that he g-uided her hand and transacted the whole business, and that she had not at that time sufficient reason and understanding to convey her hand or to make a deed.

To this evidence, so offered to be given, the defendant objected, and the Court (Johnson, Ch. J. and Goldsbokougii, J.) were of opinion, that the evidence so offered to be given was improper and inadmissible. The plaintiff excepted to this opinion.

Judgment for the defendant.

The plaintiff appealed to the Court of Appeals.

In the Court oj Appeals, June term, 1792.

Cooke, for the appellee. The husband being seised of an estate of inheritance, the deed of the 14th of September, 172.Ó, passed such interest us he might legally pass, though. it could not operate to convey the estate of the wife, she , . being no party to it.

It may operate as a feoffment. If as a bargain and sale, it will convey a base fee till entry made by the wife. Cro. Jac. 332. 417. Law of Eject. 152. If as a feoffment, it would work a discontinuance. Litt. sec. 594.

The deed of the 2d May, 1752, though not properly acknowledged, is good as a release or confirmation from Orlando Griffith, whereupon to ground the warranty. Shep. 181. 327. Co. Lftt. 235. 371. 385.

All deeds are to be construed with reference to their subject matter. 1 Durnf. 703. This deed is good as a release without being recorded.

At common law all warranties, lineal or collateral, did. bind without assets the heir they descended on, unless it began by disseisin. Litt. sec. 697.

The first law whereby they were restrained was the statute of Gloucester, which barred only a tenant by the curtesy from making a warranty, unless he left assets to descend. Why make this statute if a warranty would not bar without assets ?

But all other cases stood as they did at common law Then came the statute de donis, which creates an estate-tail, and restrains the alienation of it; otherwise estates-tail would have been in the same situation as all other estates at common law.

Warranties are not mentioned in the statute de donis,^ but the Judges adopted the rule in the statute of Gloucester, and by an equitable construction of the statute de donis, made it necessary that a linéal warranty to bar an estate-tail, should have assets to descend. Freem. 60.

Thus stood the law: Tenant by the curtesy, by the statute of Gloucester, and tenant in tail by the construction of the statute de donis, could not bar their heirs by warranty, unless they left assets ty descent. But all other persono might„

Orlando Griffith was neither tenant by the curtesy, nor tenant in tail; and therefore he might bar his heir.

There is no statute law, no adjudged case to the contrary : if there is, I call on the gentlemen to produce it.

But there are many cases to the contrary. Litt. sec. 706, 707. 711, 712. 2 Bl. Comm. 301, 302.

Warranty without assets binds an estate in fee, but not an estate-tail. Jacob Com. Law, 390. 3 Com. Dig. 432.

Third exception. The words of reference in the third section of the act of 1766, c. 14. “ first herein mentioned,” .relates to the first clause, and is within the equity of the act. No purpose can be answered by recording the deed in the County Court that is not effected by the recording it in the General Court.

There is a reason why the certificate should go from one County to another, because the Justices of one County have no cognisance of the power of the Justices of another County; but the power of the judges of the General Court pervades the whole state.

If the deed is acknowledged in the County, it may be recorded in the General Court, which shews the last words respecting the certificate were only to enable a record in the County where the land lay, and without it the clerk of the County could not record. But if that clause had been left out it might be recorded in the General Court.

First exception. By the act passed in 1725, the estate-tail of Catharine in a moiety was changed into an estate in fee to the husband and wife»

The act declares they shall hold in fee-simple an absolute estate of inheritance, and makes no limitation of the estate in case they die without issue, as the will had done, which gave it to the wife in tail. 2 Bl. Rep. 1211.

T'he act is to have a liberal construction, and to be considered as a will. 2 Vez. 354, 355, 356.

Fourth exception. Hearsay not evidence. The witness must speak of facts, and the Court or Jury judge of them, Bull 289, 290.

If the first speech is without oath, the second is no better. If living, what he was heard to say is not the best evidence.

Pinkney, for the appellee. First-point, By the act of assembly, Griffith and wife take a fee in the moiety by entireties. 2 Ld. Raym. 1144, 1145, 1146.

1st. It appears from the preamble of the act, that Orlando Griffith was a p rrchaser for a valuable consideration. It could not therefore be the intention of the act to settle the whole on the wife.

2d. The enacting clause in express words gives them a joint interest in fee, and the subsequent words do not take it away. The subsequent words only prove that the draughtsman of the act did not understand the power of alienation incident to the estate created.

But no implication is to be admitted against the positive words. 2 Ld. Raym. 1152. And it is inconceivable that after the law has positively created a joint estate of inheritance in the husband and wife, such estate is destroyed by the legislature proceeding to give their ideas of the power of alienation consequent upon it.

3d. Words that vrould make others joint-tenants will make husband and w fe each tenants of the entirety. 2 Bl. Rep. 1211. Co. Litt. 299. b. 2 Vern. 120. 2 Lev. 39. And the words of this act will clearly create a joint-tenancy in a common case. 2 Bl. Com. 180.

Second point. Although the alienation of the husband (where baron and feme are seised of the entirety in fee) is voidable by the entry of the wife after the husband’s death, or by the entry of the heir of the wife surviving, yet it is good until so avoided, as a transfer of the fee. Pigot, 72. shews that his povestas alienadi is as great as that of a tenant in tail.

2 Ld. Raym. 779. 1 Bl. Rep. 252. shew, that in the case ^ x % of tenant in tail, his alienation even by -deed of bargain and sale will pass the fee till the entry of issue. See also, Cro. Jac. 332. 417. Law of Eject. 102.

The distinction between the operation of conveyances to Uses, and common law conveyances, (as feoffment,) which operate upon the possession, seems to be that the first maybe avoided by entry, but are good until so avoided, while the latter work a discontinuance, and by tolling the entry-put the estate to a right. So that the nature of Orlando Griffith’s estate enabled him, even by a mere conveyance to uses, to pass a base fee in the entirety, defeasible by a subsequent entry of those who had right.

Third point. The first deed (in 1726) will make the person entering under it (Charles Ridgely) tenant at will to Orlando Griffith. Co. Litt. 56. b.

Fourth point. The second deed (in 1752) may enure as the release of Orlando Griffith. 2 Bl. Comm. 324, 325. And a release to a tenant at will is good. Shep. Touchst. 321.

The two deeds then, taken together, operate as a transfer of a base fee in the entirety to Charles Ridgely; so that unless Mrs. Griffith, in her life-time, (after her husband’s death,) did actually enter and avoid, Charles Ridgely, or those claiming under him, had at the time of her death abase fee, which could only then be avoided by the entry of her heir. But

Fifth point. The heir could not enter and avoid, because he was rebutted by the warranty contained in the deed of 1752.

Warranties are to be favoured. 5 Bac. Air. 453. Co. Litt. 365. b.

This warranty is lineal. Co. Litt. 375. a. 3. 715. “ Wherever the heir could, by any possibility, derive his title by descent to the lands warranted through the warrauting ancestor', the warranty is linea." See also, 2 Bl. Comma 301.

In this case there was a plain possibility that the heir might have claimed through Orlando Griffith^ the warranting ancestor, by the w ife’s dying first. The warranty therefore is lineal.

Let us now consider, then, whether as a lineal warranty it will bind under all the circumstances of the case. And here we are to consider how it would stand at common law. And again, if good at common law, whether it is impeached by any existing sta ,ute.

1st. At common law all warranties by the ancestor bound the heir on whom they descended, except in the single case of a xvarranty commencing by disseisin. 2 Bl. Comm. 301, 302. Litt. sect. 697. Gilb. Ten. 140, 141.

It was totally immaterial whether the warranting ancestor had any right in the premises. His warranty rebutted in all possible instances, that by disseisin excepted.

As this is unquestionably the general rule, we must endeavour to discover whether the present case comes within any known exception to it; and

1st. It was objected in the court below, that this warranty is void, quia it commenced by disseisin»

I answer. To constitute a xvarranty by disseisin is impossible where no disseisin exists: for to make such a warranty, it is necessary not only that there should be a disseisin committed, but that it should be committed by the ancestor warranting, or that he should at least be a party to it. And again, tha; the warranty and disseisin should be simitl and semel, or at least that the disseisin should have been with intent to make the warranty, and quasi uno tempore with the warranty. 2 Bl. Comm. 302. Lift, sect. 698, 699. 702. Co. Lin. 367. a. 369. b. (bottom.)

Examples. The son purchases land and lets to the father for years or at will. The father enfeoffs another with warranty. The feoffment is a disseisin to the son, and the warranty therefore void. Litt. sect. 698. So if the father be tenant by elegit, or statute, of the son’s land, and make a feoffment with warranty. Litt. sect. 698. So if the father be tenant for years, with remainder to the son in fee. 2 Bl. Comm. 302. So if the father disseise the son by an entry and ouster, with intent to enfeoff with warranty. Co. Litt. 367. a.

All these warranties are void, because either a previous disseisin is committed by the ancestor, with the express intent of enfeoffing with warranty, which, if after-wards done, the law couples on account of the intent, with the disseisin, or the very deed in which the warranty is con» tained operates in itself as a disseisin.

But in our case, Orlando Griffith disseised nobody, either previously to his release, or by it. He could not make a disseisin as to his moiety, because he was seised of the inheritance himself.

To disseise tlv. heir was impracticable at any rate, for living' his ance.-.iors he had nothing in die premises.

This could not, therefore, be a zvarranty commencing by

Sidy. It was also objected in the Court below, that this wmrainy is inoperative on the heir upon another ground.

1st- That a release is an equitable conveyance, and transfer' »o more than the party had a right to pass; and that of coursi Criando Griffith, by his release to Charles Ridgely, om> transferred an estate for his own life. 2 Burr. 704 — 715. 10 Co. 96,

2d. That a warranty is only commensurate with the estate to which it is annexed, for that it cannot enlarge an estate, and ceases with it.

I answer as to the first position. It might he contended that it is not law to the extent laid down, agreeably to the authorities already cited.

I might argue that it is true a release without more does not toll an entry, as a feoffment does, after the determination of the estate which the grantor had a right to pass 5 hut that an estate granted by a release or bargain and sale, continues till avoided by entry. That the true difference is this: if a man having only a defeasible or limited estate conveyS jn fee by reieaS(J or bargain and sale, the person having right may enter on the expiration of the grantor’s right, and avoid, but the estate continues until so avoided. But if, instead of a release or bargain and sale, afeoffment is used, the estate cannot be avoided by an entry, but only by judgment in a real action. In a word, that the feoffment works a discontinu anee, which the release, or bargain and sale, without more, does not.

But it is totally immaterial, quacunque via data, for let the operation of a release (as an equitable conveyance) be what it may, unconnected with a warranty, yet when so connected, it has all the effect of a feoffment to pass a fee, and equally produces a discontinuance. Gilb. Tenures, 120. Harg. Co. Litt. (note) 330. b. Litt. sect. 601. Salk. 245. 8 Vin. 513, 514, 515. 517. 523, 524, 525, 526. 532, 533. 2 Reeves, 141.

The reason is obvious. The release passes a defeasible fee, avoidable by entry, and the warranty annexed rebuts the entry. For it is to be understood that a warranty passes no right in itself, but merely rebuts the right of another. Shep. Touch. 327. 5 Bac. Abr. 447.

The principles contained in this objection would be ex-tremelyjust and applicable if the warranty was distinct from the release, and not inserted in it.

As it stands, it is no objection at all, for at common law the release of tenant by the curtesy, or even of an ancestor having no interest at all with a 'warranty annexed, was a complete rebutter to the heir. This is proved by the statute of Gloucester of 11 Hen. VII. and by Co. Litt. 385. 387. Litt. sect. 738. Shep. 181. 327. Co. Litt. 265. 371.

When it is said in the books that a warranty cannot enlarge an estate, the meaning is where the warranty is not contained in the deed creating the estate.

Thus, if a deed without warranty passes no more than a life estate, no subsequent warranty operating upon or having reference to that deed can enlarge or have effect beyond it. Such is Seymour’s case, 10 Co. 97. which was cited against us, in the General Court, in support of the objection now under consideration. In Seymour’s case there was no discontinuance, because the warranty was not coupled widt the deed. In our case there was a discontinuance for the reverse cause. The fine in Seymour’s case operated on what passed by the deed, and so the warranty.

But Seymour’s case is fully explained in S Bac. Abr. 96 and 2 Burr. 704 — 715.

The rule, too, that a warranty ceases with the estate to which it is annexed, is to be explained in the same manner, 2. e the estate on the face, oí the deed in which the warranty is contained.

As, if the estate be on condition, the warranty is extinguished when the condition is broken. Co. Litt. 385. a. 387. a. 10 Co. 96. b. And so is 5 Bac. 449. (cited against us in the General Court,) “ the defeasance of the estate destroys the warrant}.” I take this objection, therefore, not to be supportable.

3dl>,. It was also said in the General Court that a warranty never rebuts but where the estate is put to a right, or, in otlu r words, discontinued. This is the true principle of Seymour’s case, and is good law. But here it is proved by the authorities that the estate was discontinued by the release with warranty; and so would it have been in Seymour’s case, had the warranty been inserted in the deed, or the deed and fine had been taken as one conveyance, as in 2 Burr. 704 — 715.

4 hly. It was also said that none but collateral warranties barred at common law, where the party warranting could not rightfully transfer the interest warranted.

I answer. I should like to hear a reason for this distinction, because I can think of none myself but what °Perates against it. Litt. sect. 704. 706. are both lineal warranties where ancestor had nothing in the premises, and yet goodj and so are all the cases in Littleton.

5thly. It was also said that lineal warranty only bars where the heir claims under the title of the warranting ancestor, and in this case he claims ex parte materna.

I answer. This would destroy the definition of lineal warranty, “ may by possibility.” It is further answered by the authorities in Litt. sect. 706, 707.

6thly. It was also said that there could be no release of one tenant in common to another for want of privity, and that therefore our release, and of course the warranty, was void.

I answer. This release was to tenant at will, and that is good according to Sheppard before cited.

7thly. Another objection was, that the warranty descended before the right.

Co. Litt. 371. a. is an answer to this.

Sthly.-The next and last objection taken to the operation of this warranty at common law was, that it did not bar without assets. And of this opinion were the General Court.

I answer. The distinction is between fee and tail. Litt. sect. 711, 712. Coke’s Comm. 374. a. and b. 5 Bac. 441. expressly, and cites Litt. ubi supra. See also, Vaugh. 375 3 Com. Dig. 432.

The arguments of counsel, and the opinion of the General Court, were grounded on what is said in 2 Bl. Comm. 302. where, although it is positively laid down that a lineal warranty rebuts an heir in fee, without assets, yet this reason is given for it, “ for if he (the heir) could succeed in such claim, (i. e. against the warrantee,) he would then have assets by descent, though he had them not before.”

In favour of the rebutter without assets, no authority can be more express; but the reason given is to destroy the whole force of the operation itself. Let us examine it.

1st. The reason assigned by Blackstone only applies to the original introduction of the rebutter. He only means to shew the student his idea of the grounds upon which a lineal warranty was at first held to be a rebutter to the heir without assets. Buthe himself goes onto shew that the rule as to the rebutter was always extended beyond the supposed reason; for it was extended to collateral warranties where it was impossible the reason could have any application. He lays down the rule, and then proceeds to state the cause of its being introduced, but by this he never meant to limit the operation of the rule itself, which he states without any such qualification.

That the rule has no such limitation, is clear from undeniable authority already cited.

2dly. But Blackstone does not assign the true reason. A more simple, and a much more consistent and probable one is given by Lord Coke. (Co. Litt. 373. a. Comm, on sect. 709.) It is more in the spirit of the times which gave use to these rebutters. “ Ncemo prmsumitur alienamposleritatem sum prostulisseP And the same reason is assigned by Blackstone himself, as will be shewn hereafter.

Sdlv. Let the reason of the first introduction of the rule be what it may, it is impossible the doctrine of the General Court can be right.

The principle contended for, is, “ that no lineal warranty was a rebutter at common law, unless where the land warranted, if recovered by the heir, would be assets from the warranting ancestor, and liable on a xvarrantia chartmP

If this be the case, all lineal warranties (as rebutters) without assets, are annihilated at once, and no possible case exists, or ever did exist, since the statute of quia emptores,' where they can or could operate; for no instance can be conceived where the land warranted would, if recovered by the heir, be assets from the warranting ancestor, except where the warranting ancestor had good right to convey, and was seised of the fee. But in such a case the deed itself would be a sufficient title without the aid of warranty, and of course the warranty would be totally inoperative as a rebutter. Harg. Co. Litt. (note) 374. b.

Thus would this doctrine totally destroy the whole force and efficacy of the rule, that a lineal warranty rebuts, withassetSi) an heir jn fee-simple ; for, according to it, a lineal warranty never rebuts but where there is no use for it, i. e. where the ancestor was tenant in fee, and of course had given a good title by his mere deed ; so that, to gratify the reason given in Blackstone's Commentaries, the rule' he lays down is to be subverted, and to be made applicable to not a single case that can be conceived.

Let us now look into the authorities, and see what are the lineal warranties that have been held to be bars without assets. Are they the cases alluded to by the General Court, i. e. where the land, if recovered, would be assets ? Directly the reverse. And there is not a case in Littleton, upon lineal warranty, that would be law if the General Court are right.

Litt. sect. 706. “ Grandfather, father and son; grandfather is disseised ; the father releases with warranty and dies ; the grandfather dies ; the son is barred by this lineal ■ warranty, because he could not convey the right to the lands but through the father.”

Coke's Commentary. “ Here Littleton putteth an example where the son must claim the land as heir to his grandfather, and yet, because he cannot make himself heir to his grandfather, but by his father, it is lineal.”

Litt. sect. 707. is another case in point. Coke's commentary thereon: “ Here Littleton putteth an example where the heir that is to be barred is not to make his descent by him that made the warranty, as in the case before.”

In this case it is clear the land would not have been assets from the elder brother making the warranty, and yetno assets are required to make it a bar. And in all Littleton, ®r Coke's Commentaries, there is not a case on lineal warranty operating as a rebutter without assets, where the land, if recovered, would have been assets, &c. There is no such case to be found in any authority, because it is impossible it can exist.

It is further to be remarked, that no attempt has been made to produce any case recognising the distinction taken by the General Court, except Blackstone’s Commentaries, which is the reverse of their opinion.

It is plain, then, that assets are not necessary to perfect a lineal warranty at common law,,

But let us now consider the cause why warranties were introduced in deeds of alienation, and we shall find that they were not resorted to so much with a view to the yielding other lands in case of eviction, as to produce a rebutter against the heir, whether assets descended to him or not. Vide Dalrymp. Ten, 96 — 1 02.

It is tv ell known that after feuds became hereditary, and before the statute of Hen. I. c. 70, which in part opened the door to transfers of real property, and the statute or quia emptores, which gave the power of unlimited alienation, the feudatory could not aliene his feud for more than his own life, without the consent of his next heir apparent, as well as that of the lord. 2 BL Comm, 287, 288.

A restriction so inimical to all the .objects of commercial and civil intercourse was submitted to with difficulty, and every means devised to evade its operation. With a view to the heir it was found to be practicable, by inserting; in the deed of alienation a covenant real, called a danse oí warranty, which, descending upon him, rebutted his claim, and thus effectuated the subinfeudation, not by giving a right to the subinfeudatory, which was impracticable, but by repelling the right, of the heir, who alone could hat« defeated it.

The justice and propriety of this mode of eluding the strictness of the feudal policy, to the disherison of the heir, were supported by a reason, in all probability, seldom founded in fact, viz. that it was presumable u no ancestor would wantonly disinherit bis next of blood; and. therefore» that the heir had received a valuable consideration either in land, or in money which had purchased land, and that this equivalent descended to the heir together with the ancestor’s warranty.” 2 Bl. Comm. 301.

“ So that (2 Bl. Comm. 301. in continuation) when either an ancestor, being the rightful tenant of the freehold, conveyed the land to a stranger and his heirs, or released the right,in fee to one who was already in possession, and superadded a warranty to his deed, it was held” (on the presumption of assets, not that he really had) “ that such warranty not only bound the warrantor, but also his heir: and this, whether the warranty was lineal or collateral.”

It appears from this deduction, that the sole object of warranties, in their original, was to rebut the heir from claiming his inheritance from the subinfeudatory of his ancestor ; and that to complete the rebutter, proof of assets was never required, the law in favour of alienations always presuming an equivalent had been given.

And if this was so in the original, we have seen that instead of warranties being narrowed in their effect by super-induced restrictions, they were still farther extended with the progress of commerce, until statutes were passed producing alterations. Of this, the almost endless cases on collateral warranty to be found in the books is clear and decisive proof.

Before the statute de donis the distinction between lineal and collateral warranties was unknown. That statute introduced it<; and, of course, at common law, the operation of both warranties is precisely the same. See Reeves. And it is admitted that collateral warranties barred without assets.

On this part of the case the note in Harg. Co. Litt. 373. a. hadsome weight in the court below. I see nothing in it that entitles it to the slightest. Part of that note is obviously not law. Examples: “ Without assets the ancestor’s warranty never did, and does not now, bind the heir, except when he takes by purchase.” I apprehend this must ¡•mean “ an obligation to yield other lands on eviction.” If ... so it is true. Rut if the annotator is here speaking with a view to the rebutter, his remark is not true in a single instance at common law, and in few now.

^ Did the heir of tenant by the curtes) take by purchase P Did the heir of tenant in dower ? Did the heir take by-purchase in any instance of either lineal or collateral warranty in Coke Littleton P

And yet in all these cases the warranty at common law rebutted without assets.

“Upon inquiry it will be found that the cases where the operation of warranty still remains are reduced to two: 1. Tenant in tail to bar issue with assets ; 2. Tenant in tail to bar those in remainder without assets.”

I answer that upon inquiry it will be found there is hardly a syllable of truth in the whole of this position. And as it falls in with the course of the argument in this sause, I shall endeavour to shew it.

1 take it that warranties remain at this day as they were at common law, except so far as they have been altered, by statute. We have already seen the extensive ope* ration of them at common law, and it now remains to consider how far statutes have interfered with, or narrowed, their operation. This inquiry is the more material, as, in the Court below, statutable restrictions were relied on by the plaintiff’s counsel in defeasance of this warranty.

1. The first statute that had any effect on warranties was the statute of Gloucester, 6 Edw. I. c. 3. by which the collateral warranty of tenant by the curtesy either during the wife’s life, or after her death, was declared to be no bar without assets. Hargr. note, ubi sup. 2 Inst. 292, 293, 294. 3 Bl. Comm. 302, 303. 3 Com. Dig. 432„ 433. Gilb. Ten. 141, 142. There may be tenants by the curtesy, living the wife. 2 Bl. Comm. 127.

2. Statute de donis, 13 Edw. I. c. 1. On the construction whereof, by analogy to the statute of Gloucester, it was held that the warranty, of the tenant in tail should not bar the issue without assets, which proves it always did in fee-simple cases. See Gilb. Ten. 142. Reeves.

3. Statute 11 Hen. VII. c. 20. makes void the warranty of tenant in dower.

4. Statute 4 and 5 Ann. c. 10. vacates all warranties by tenant for life, and the collateral warranty of any ancestor not having an estate of inheritance in possession.

These are all the statutes in any manner affecting warranties, none of which, except the statute de donis, with a view to the heir in tail, relate to lineal warranties. Subject to the restrictions and provisions of these statutes, Warranties are now as at common law. It follows, that instead of what is laid down as to the present state of warranties by Hargrave in his note, lineal warranties descending upon an heir in fee-simple have, without assets, as full and complete an operation in all respects as they had at common law. Collateral warranties are indeed much narrowed ; for, except the case of tenant in tail barring those in remainder by his warranty, I do not know a case where collateral warranty without assets would now be a bar.

I have shewn, then, that this warranty is a good lineal Warranty, and would bar at common law without assets. I I have also shewn that no statute impeaches it,- or makes assets necessary to its efficacy. It follows that on this part ©f the case the plaintiff was barred of his ejectment, and that therefore the judgment should be affirmed.

But admitting that the warranty did not bar without assets, still it appears from what has been shewn that the plaintiff could not bring ejectment.

1. To recover in ejectment the plaintiff must have a right of, entry.

2. A discontinuance tolls the entry of the heir.

3. We have shewn that the release with'warranty discontinued the estate and put it to a right.

If the tenant in tail releases with warranty, it is no re-butter to the issue if no assets descend. But it still puts him to his formedon. He cannot bring ejectment.

Feoffment with warranty binds the heirs only to render the value as it was at the time of the feoffment. 2 Bac. Abr. 129. Co. Litt. 32. a. Perk. 328. If the husband makes feoffment in fee of lands, and feoffee afterwards improves them in value, the wife of the feoifor shall have dower only according to the value in the husband’s time. Id. ih. Otherwise, if the heir of the husband improve after husband’s death, for then she shall have dower of the improved value, quia her title consummate at the husband’s death.

On the third hill of exceptions. The sole question on this exception arises on the deeds of lease and release executed by Mrs. Griffith, afterh er husband’s death, to Charles Ridgely, the heir, in 1773, (March 9th and 10th,) acknowledged before two Justices of Anne Arundel County, where Mrs. Griffith resided, and recorded in the Provincial Court ¡ and the Court below have adjudged them good.

By the act of November session, 1766, c. 14, s. 3. it is provided that when the person, &c. making any deed, &c. “ shall live remote from the Provincial Court, or out of the County,” See. “ such person to acknowledge the same in the County Court of the said County, or before two Justices of the said County, wherein he, she, or they, shall re-, side,” &c. &c. “ Such deed or conveyance shall be taken, &c. and shall be as good and valid as if the same had been acknowledged in manner first herein mentioned.”

And the manner first therein mentioned in the second sec*lion (the first section being merely the preamble) is, that if the deed is acknowledged in the Provincial Court, or before one of the Justices thereof, &c. it may be recorded either in the records of the County where the land lies, or in the records of the Provincial Court.

To give this act a rational construction, it cannot bo presumed that the Legislature meant to confine the recording of such a deed to the County Court, win.-.: all others are permitted to be recorded in the Provincial (now General) Court.

The only argument that can be raised against us is on the words “and such certificate shall be a sufficient warrant for the Clerk of such County where the lands, &c. dolie to enrol,” &c. Had it not been for these words, there could, have been no doubt; and it appears to me they ought to create none. There was a propriety in this provision, and no necessity to say any thing of the Provincial Court.

The General Court are supposed to know who are Justices in the several Counties, and who are not, the commissions being all recorded in their records. In another County they are not supposed to know it, and therefore this provision. Had it not been for this provision, the deed could not have been recorded in the County Court at all. The act ought to receive a liberal construction,

In this case there are four exceptions, one by the defendant, and the others by the plaintiff; and although the Court of Appeals should differ from the General Court on the opinion in favour of the plaintiff, yet if on the other exceptions it appears that the ultimate judgment is right, they will not reverse. Cowp. 502. Lord Munsfield’s Opinion. 504. J. Ashhurst's Opinion.

In our case two titles were brought before the Court, and if on one of these titles we were entitled to a verdict and 'judgment, and it so appears upon the whole record, the Court of Appeals will affirm our. judgment.

If the judgment is reversed here, the plaintiff can only begin again, for the cause cannot be remanded, having come up before the late act.

Martin, Attorney-General, S. Chase and Key, for the appellant.

Cooke, Mechen, and Pinkney, for the appellee?

The Court of Appeals, at November term, 1792, affirmed die judgment of the General Court on the 1st, 3d, and 4th exceptions. 
      
       This part of the Court5s opinion does not appear on ilie lull oi ex-,-fplionsj hut is taitón from Mr. Cooke’s notes*
     