
    Beall, et al. Lessee vs. Harwood.
    , In the construction of fin Set oi* as-»e.nh y, the in-l> niion of the !o gis ature is to pre* 1 a circumstances which prochieed it Where lands had beeu devisc-tl by A. to his son li, mtaii male, remainder )nt'i< mae to his eldest -3on C, remainder mtai! male to lus third son D, remainder in f •<* fo hUr t>vo daughters K and F as tenants m common--!! by his petition to the le?,Mature wntciU that he had only female heirs, fv¡5, two daubsters, i, and M ) who couUl not inherit the lamh after Ins doajh, vrhueln it would deteend to his elaest hcotnei- C,(Y/ho united™ thejwtDion;; he therefore prated that an act ntísht pass to vest un estate ot mhen,aneean fee s.mpje in the sa-d had, m ins témalo fi-irs, in ease he .should have male heirs at the time oí Ins ilea h; and m default ,,f issue of Ui« said fe.naSe In-irv the said l‘»mi dc-ieci.d according to me.will of Isis father Which prater being thought reasonable, the legislature foy au act, reciting the fact; and the prayer tot forth tn the petition, ves'ed the said lar Is in the said amiie ters of B, then- aeirs and assigns, with a rot Iso, that if B should have any maje hens of Ms («dy at the Urn • ot hi. death, or that the sai l female hens of B should not have issue, then the lands should descend and stand limited as by the Will oí A v as devised. Afterwards B had k son horn Í», ®’ T “‘Ue,d m the life-time of E, leaving three daughter», H..J and IÍ. DoriiaMheTife rf G OTtJ tin- lands vertcmvevtd to ,m„ ire.oyB, ofvsmr.it he died seized, leaving the saio three daughters li aft-nvimis tntd, leaving is,he Ms.said two tlaughters I. and M, who filtered. See. Their fire both since oeaii, j; hat mg survived L, leaving a daughter X. mamed m the defendant, Ón mi ejectment brough. m the name oí the lessee of lx, J and If, the three daughters oí G — Held tint /;•„ ■¡Tiule heirs ill the act of assembly, meant the two daughters of B, and that an eshite in fde si,‘mile Vested m them, to fee defeated and divested out of them on the. happening of either of two ooutm. gencies 1st I. B left w male at the time of hn death; and Sd If B should die without leaving is. 5'aiilttr wjnot SÚdre da,1»,ite,'s sWd die '";h™£ having issue; and thattfce
    A mortgagor cannot.nnport an ejectment Sir the land mortgaged, «lisas ¡te can show tint ipe tenttsageKadheeasáÜs&.Mpss.-rioastottebrt^EiiiíthecáeetnVeot '9n ibm tfcat **
    Appeal from the General Court. Ejectment for a tract bf lam! called Buzzard Island, lying in Calvert county. The defendant, (the present appellee,) took general defence, and issue was joined on the plea of non cut The plaintiff at the trial, (May term 1804,) gave in evidence a grant .dated the 25th of March 165¿, to William Stone, for the land for which the ejectment was brought, Also that Stonef .the grantee, on the 13th of November 1717, conveyed the ian.d in fee simple tq Leonard Hollydayy (the first.) That Hollyday, on the 7th of .November 1739, by his last will and testament,, devised the land in question, ,First. To his son Leonard, (the second,) intail malq. Secondly. Remainder intail male to his eldest son Thomas, 'Iliirdly, Remainder intail male to his third, son Clement; and Fourthly. Remainder in fee to his tw,o daughters Elizabeth and Mary, as tenants in, common,. .That Leonard Holly-day, (the first,) died on the 10th of December 1739, seized of the land', leaving three sons and two daughters, to wit, Thomas, his eldest son, Leonard,t (the second,) his second son, Clement, his third son, and Elizabeth arid Mary, his daughters'. That Leonard Hollyday, (the second,) entered upon the land by virtue of the devise) and was. seized thereof prout lex postulate and being so seized, and having only two female children, a petition was presented to the general assembly óf the province of Maryland, at February session 1756, ánd in consequence of thiit petition aii act of assembly waS enacted during the sárhé session; ((¡A. 17s) entitled, xt£n act to vest certain intailed lands therein mentioned in the female heirs of Leonard Hollyday, gentleman, in fee simplereciting, that “Whereas Thomcis Hollyday emú Leonard Hollyday, gentlemen', by their humble petition tó this general assembly; did set forth that their father, Leonard Hollyday-, of Prime-George’s county, gent, in the year 1741, died seized of two tracts of land lying in Calvert 'county, the one called Buzzard Island, and the other called The Addition tó Buzzard Islands the whole containing 751 acres; and that by his last will and testament he devised tile same to Ills second sdn Leonard Hollyday, one of the petitioners, and tó his male heirs, and for want of súch issüé to his eldést son Thomas Hollyday and his male heirs) that Leonard Hollyday had only female heirs, who could riot inherit the said land after ■ his death, whéreby it would descend to his eldest brother Thomas, who by letter had signified his consent, and is party to the said petition; that the said land ivas uninr. proved at the time of the death of their father, since which it had cost the present possessor, Leonard Ilollyday, who lives thereon, a considerable sura of money to improve the same; that the said land had been in the possession of the father of the petitioners ever since the year 1685, and never been claimed by any other person; whérefore they 'prayed that an act of assembly might pass to vest an estate of inheritance in fee simple iñ thé said land called Buzzard Island and The Addition to Buzzard Island, in thé female heirs of the said Leonard Ilollyday, in case he should have no male heirs at the time of his death, and that in default of issue in the said female heirs, the said land to descend .according to the will of the father of the petitioners; and the prayer of the petitioners, in the said petition contained being thought reasonable, thé same was granted, and leave given to bring in a bill according to the petitioners prayer;” and it was accordingly enacted, “that the said tract of land called Buzzard Island and The Addition to Buzzard Island. containing in the whole 751 acres, with the appurtenances, in Calvert county aforesaid, so as aforesaid deyised by the said Leonard Ilollyday, thé father, to his second sort Leonard Hollyda'y, and his male beirs, shall be and the same are héréby vested in the said female heirs of Leonard Hollyday, the son, théir heirs and assigns, to the only usé and behoof of them the said female beirs of the said Leonard Ilollyday), the son, tljeir heirs and assigns, for ever; Provided always, and it is the true intent and meaning of this act, that if the said Leonard Holly day shall have any male heirs of his body at the time of his death, or that the said female heirs of the said Leonard Ttotlyday shall not have issue, that then aud in such cáse the said land called Buzzard Island and The Addition to Buzzard Island, with the appurtenances, shall descend and stand limited as by the last will and testament of the said Leonard Holly day, the testator, is devised,-’any law, usage or custom, to the contrary in any wise notwithstanding; saving to the King’s most excellent majesty, bis heirs and Successors, to the right honourable the Lord Proprietary, his heirs and successors, and to all and every other person and persons not mentioned in this act, bodies politick and corporate, their respective heirs and successors, all such right, title, estate, interest, claim and demand, othe than the persons claiming under the last will of the said 
      Leonard Holly day, the father, and this act, as they, every or any of them', could or might claim if this act hid never been made.” Afterwards Leonard, (the second) had a son; Leonard, ’(the third,) who died in the life-time of his father, leaving three dáughtérs, the lessors of the plaintiff; Leonard, (the second) on the 1st of February 1791, in thé life-time of his son Leonard, (the third,) by a deed of bargain and sale duly executed* ácknowledged and recorded, for a valuable consideration, bargained and sold the saiti tracts of land; and all his right and interest therein, to his son Leonard, (the third;) in fee; Leonard, (the third,) in virtue of that deed entered upon the lands; and was seized thereof prout lex postulate, and being so seized, died some time in the year 1793, leaving three daughters, Elizabeth; Grace Conlee, (wife of Aquila Beáll) and Margaret Terrelt* the lessors of the plaintiff, his only children and heirs. Leonard, (the second,) died iii or about the year 1794$ leaving issue two daughters. The defendant then gave in evidence, that Leonard, (the second,) before and at thé ' time of his petition to the general assembly in 1756; and át the time of thé passage of the law; herein before insert-fed, had issue two infant daughters, Sarah, born in 1754$ afterwards inarried to Thomas Johns, and Anne, born in 1755, afterwards inarried to Walter B. Cox; that in the year Í757, Leonard, (the second,) had a son, Leonard,(the third,) who afterwards died in 1793, without issue male, leaving his father and two sisters his survivors; and that thé youngest of the sisters, Anné; was 15 years older than Leonard, (the third.) That Leonard, (the second,) died iii Í794, and his tiro daughters, Mrs. Johns and Mrs; Cox, survived him. And afterwards Mrg; Johns, and her husband, died, add her sister, Mrs. Cox, and her husband* survived them; on the death of Leonard^ (the second,) without issue ihaíé, Waller B. Cox, add Anne his wife, claiming under the said act of assembly* entered upon 2nd were seized of the lahds aforesaid id thé declaration mentioned, until the cfeath of Cox; that Anne Cox survived her husbatid, and died seized and iri possession of said lands, leaving issue.by Waller B. Cox, a daughter* her only child and heir* who married the defendant; and that the defendant, in virtue of his said marriage; on the death iff Annei the mother, entered on and was seized of thé lands, and yet is in possession thereof. The plaintiff then prayed the court to, instruct the jury, that upon the afore» said evidence, if they believed the facts so offered in evidence to be true, the plaintiff was entitled to recover.
    Chase, Ch. J. In this case, the counsel have said every thing which could be suggested upon the subject. They have made use of ingenious arguments. There cart be no doubt but it has been fully and ably argued on both sides.
    The court think, that the intention, of the legislature is to prevail, and that intention is to be collected from the whole of the law, and the circumstances,which produced it.
    The case is to be considered, 1st. What was the intention of the legislature? 2d. Have they used cleat' words to express that intention? 3d. What is the effect of the enacting clause, and does it carry their intention into efv feet?.
    The. motive.does not satisfactorily appear; but facts do appear in the petition, as recited in the act, which are, that the land would, by the will, vest in Thomas', that Leonard had no son, but he had daughters who could not inherit; that he had improved, the land, and had a solicitude to provide for his daughters. It is apparent to the court, that. Leonard had little.or. no expectation of having any other children; he.liad in view to providp for the children he then had. Thomas, his brother, knowing of the improvements made on the land by Leonard^ and actuated by motives of affection, concurred in the petition. It appears that the; operation under the will was intended to be suspended. The petition sets forth, that Leonard had ‘.‘only female, heirs, who could npt inherit.” This was nothing more than, a description of the persons who were to take under the law. The prayer of the petition was “to vest in the female.heirs.” of Leonard Hollyday, in fee simple. “Female heirs”- meant the two daughters of Leonard Holly~ day, and-that the.estate was to vest immediately in them. It appears that the petition had in view to provide for the two daughters. The legislature granted the petition. Has the enacting elapse carried the intention into effect? “shall be and are hereby vested in the said female heirs.” The intention must be to vest the estate in tl\p daughters then in being. It is a plain designation of the persons who ■were to take; and that an estate in fee simple should be vested in the two daughters, to he defeated only upon the happening of two contingencies. If the events, or either, of them, had happened, the estate in, fee simple would have, divested, and let in the operation of the will. This shows, that by the act there was to be a suspension of the estate. It was tlie act of the father providing for his children, with a proviso in case of male heirs, or the death of his daughters without issue. Thomas made a greater sacrifice than Leonard.
    
    'VV'hat would be the effect if tlie construction contended for on the other side was to prevail? It would be putting it in the power of one party to defeat the provisions of the, legislature. Such a construction could never be admitted^ The, children of Leonard Hollyday, (the third,) never could have inherited under the will." '
    The court are of opinion, that an estate in fee simple vested in the two daughters of Leonard Hollyday, which estate was tobe defeated and divested.out of the daughters* on the happening of either of - two contingencies.
    
      First. If Leonard- Hollyday, (the second,) left issue . male at the time of- his death." ’
    Second. If Leonard Hollyday should die without leaving issue male at the time of his death, and his two daughters should die without leaving issue.
    On the happening of either of said events, the estate in, fee simple, which was created in the two daughters, was to be divested, and the limitations in the will, which were suspended by the act of the legislature for tlie purpose of providing for his two daughters, were to be again put iif operation. And the court are of opinion, that the plaintiff is not entitled to recover the land. The piaintiff excepted- ' , ’
    A mortgagor can-» not support' saii ejectment for the land mortgaged* unless the morí* &*age debt has been -ijaid. ■■ ■
    2. The defendant then read- in evidence a deed- of mortgage from Leonard Hollyday, (the third,) to Benjamin. Machad, bearing date tlie' 2d of April 1791, for the tract of-land called Buzzard Island, in the declaration mentij oned, to secare the payment of ¿62179- 14 1, current money, with interest, on 'the, 1st of September 1794; and lie prayed the opinion of the court, and, their direction to tlie jury, that the plaintiff was not competent to recover by reason of the mortgage, unless he could show that the morí-. gage had been satisfied previous to the time of bringing. this ejectment.
    Chase, Ch. J. Th? court are of opinion, that the mortgage created a legal estate in the land in Benjamin Mack-all, the mortgagee, and his heirs; and that the plaintiff cannot recover unless he proves the mortgage was satisfied previous to the bringing this ejectment. The plaintiff excepted, and tiie verdict and judgment being against him, he appealed to this court.
    The cause was argued before. Tilghman, Buchanan and Nicholson, J,
    
      Martin and Shaaff, for the Appellant,
    in arguing on (he. first bill of exceptions, stated, that the question for discussion arose wholly out of the act of assembly of 1756, ch. 17, and three different constructions of that act they con - tended for in opposition to the opinion of the court below —1. That Leonard, (2<J,) still continued tenant in tail, as before, with a limitation to his female heirs in case of his dying without issue, male, with power of alienation, &c, and that his deed to Leonard, (3d,) of the 1st of February 1791, barred the estate tail, and vested a fee in the grantee. 2. Or, that the act gave the estate beyond this control of the tenant, to sucli persons as at the time of the death of Jjeonard, (2d,) answered the description of his heirs female, as purchasers, including all those who, gt his death .in 1794, would have been his heirs female, viz. his two. daughters, Mrs. Johns and Mrs. Cox, and also his granddaughters, the children of Leonard, (3d.) 3. Or, that the act gave the estate beyond the control of the tenant to such persons, as, according to the meaning of the terms ■when the law passed in 1756, answered the description of heirs female of Leonard, (2d;) that is, females who were heirs also, vbf, the daughters, the heirs of-Leonard, (3d.) They cited Shelley’s case, 1 Coke, ¡02, 103. Shep. 7. 103. Cwew's Lessee vs. Weems, 1 Harr. & M'Hen. 463 
    
    
      On tlie second bill of exceptions, they contended, that, where the. title to land: is contested between the mortgagor and a stranger, the latter cannot setup the mortgage to defeat the recovery. They cited Pow. on Mort. 221, 222. The King vs. St. Michael's, Dougl. 632. Lade vs. Holford, 3 Burn. 1416., Doe vs. Bristow & Pegge, 1 T. R. 758, (note.)
    
    
      Key,_ Mason, and Jo/mson, (Attorney General,) for the. Appellee,
    on the first bill of-exceptions, contended, 1. That thp inheritance and estate wasjmmediately vested in., the daughters in fee by force of the clear words of. the act, of assembly. 2. That if the estate .did not immediately, pass to the daughters, the inheritance in fee was vested in, them, subject to a life estate in their father, and liable to. be dives.ted from them on the father’s death, leaving a male,, heir then, living. 3. That if the.inheritance in fee was not. vested in the daughters on the passage of.-the.. Iaw„ it was,., an. executory grant to vest on a contingency to. happens, within a life in being, and like an executory, devise not ca~. pable of being barred by deed or common recovery. They cited Wheatley vs. Thomas, 1 Lev. 75. Walker vs. Collier, Cro. Eliz. 379. Co. Litt. 27, a. Prince's case, 8; Coke, 1. Murrey vs. Eyton Price, T.Raum. 355. Shep. T. 108, 109, 119., Pow. on Cont. 336, 337, 376, 377. Pow. on Dev. 376, 377.
    On the second bill of exceptions, they cited Doe vs. Wharton & Dixon, 8 T. R. 2. Doe vs. Staple, 2 T. R. 696. Armstrong vs. Peirse, et al. 3 Burr. 1901.
    
      
      
        ) In Chew’s Lessee vs. Weems, notwithstanding the decision of the Court, of Appeals, a new ejectment was brought after the revolution, in 1778, and the General Court, at October term 1782, g-ave the same judgment, which had been given by the Provincial Court, from which there was also an appeal by the plaintiff to the Court of Appeals; but that appeal was not acted or., the case hav-% ing been entered agreed at May term 1783. See also 3 Atk. 193. Mod. 422. Cro. Eliz. 525. Pollexf. 645. 2 Stra. 1175. 3 Atk. 390, 408. 1 Wils. 140. 2 Ves. 249. 3 T. R. 470. 2 Atk. 646 1 P. Wms. 432. 1 Ves. 217.
    
   The Court

concurred in the opinions expressed by the.. General Court, in,both of'- the bills of exceptions, and

JUDGMENT AFFIRMED»  