
    Watts v. Cole and Wife and Others.
    December, 1830.
    (Absent Coalter, J.)
    Writ of Right — Infant Tenant — Objection in Appellate Court— Quaere. — In a writ of right, the praecipe an d count describe tenant as an infant; tenant appears, pleads and defends himself by attorney, no guardian ad litem being assigned him; nor does it appear he came to full age pending the writ: verdict and judgment for demandants; tenant in person appeals to this court: Quaere, whether he can obj ect to the proceedings on account of his infancy here, or ought to have resorted to writ of error coram nobis?
    Same — No Replication — Effect—Quaere.—In a writ of right, there is a count and plea, in the statutory forms, but no replication; the assize is regularly charged to make recognition; verdict and judgment for demandants: Quaere, whether the mise was joined by the count and plea, without a replication? and whether the irregularity was not cured by the verdict?
    Same — üpon What Seizin Writ May Be Sustained— Case at Bar. — S. W. tenant in tail, in 1752, covenants to stand seized to use of L. W. his then eldest son and heir apparent, and his heirs, in fee simple; and then subjoins a covenant, that L. W. may immediately after his S. w.’s death enter upon and enjoy the land; L. W. died before S. W. who always continued in possession: Held, this conveyance worked no change in S. W.’s estate, but he continued seized of an estate tail as before it was made, and therefore, the limitation of the estate to L. W. after S. W.’s death, was void; neither did L. W. acquire any seizin in fact or in law, upon which a writ of right could be sustained.
    This was a writ of right for 150 acres of land in the county of Elizabeth City, originally brought in the county court, in May 1817, by Cole and wife and others, heirs and devisees of Robert Bright, de-mandants, against Watts, *'infant son and devisee of Thomas Watts, tenant. The praecipe, the count and the plea, were in the forms given by the statute for reforming the proceedings in writs of right, 1 Rev. Code, ch. 118, p. 463. But there was' no replication to the plea; and though the praecipe and the count described the tenant as an infant, yet no guardian ad litem was assigned him, and he appeared and pleaded by attorney. The assize was charged to make recognition, in the statutory form ; and it found a special verdict, upon which the county court gave judgment for the tenant. The demandants appealed to the circuit court. And there, at May term 1822, the following order was entered: ‘‘This day came the parties by their attorneys; and thereupon, the transcript of the record of the judgment aforesaid being seen and inspected, by consent of the parties it is considered by the court, that the judgment be reversed and annulled, and the special verdict in this cause set aside, and that a new trial be had of the issue joined, and that the cause be retained in this court for a trial to be had of the issue joined therein. ’ ’ Still, no guardian ad litem had been assigned for the infant tenant, nor was one afterwards assigned to him, nor was it suggested on the record that he attained to full age pending the suit.
    Upon the trial in the circuit court, the assize found a special verdict, stating the following case:
    That Thomas Watts, being seized in fee simple of the land in question, duly made and published his last will in April 1726, which was duly proved and recorded in 1727, and thereby devised the premises to his son Samuel Watts, in tail general, under which devise Samuel entered, and was seized in tail general accordingly.
    
      That Samuel Watts, being so seized in tail, bj deed, dated the 16th September 1752, and acknowledged in court and recorded in April 1753, “conveyed the land to his [then eldest] son Littleton Watts, in fee simple;” which deed was found in haec verba. This deed was in its form a feoffment, whereby Samuel Watts, in consideration of natural *love and affection for his son Littleton, and for his better advancement and preferment, gave, granted, enfeoffed and confirmed, the land to the son Littleton and his heirs: and there was a covenant subjoined to the conveying part of the deed, whereby the grantor “covenanted and agreed to and with Little-ton, his heirs and assigns, that he and they should and might, immediately on the death of Samuel (the father and grantor) and thenceforth forever after, peaceably and quietly have, hold, occupy, possess and enjoy, the premises, free, clear and discharged. of and from all former and other gifts, grants, feoffments, jointures, dowers, and all other incumbrances whatsoever.” No livery of seizin was found. Nor was it found, that Littleton, the son, was ever in possession.
    That Littleton Watts, by deed of bargain and sale, dated the 2d December 1777, and duly recorded, “conveyed the same land in fee simple to Robert Bright;” which deed was also found in hsec verba. It was a deed of bargain and sale, the premises whereof, in consideration of ^'100. paid by' Bright to Littleton Watts, conveyed the land (describing it as the same given him by his father’s deed of September 1752) to Robert Bright and his heirs begotten by Mary Bright, the bargainor’s sister: but the habendum was, “to have and to hold the same, immediately after the death of the said Littleton and Samuel his father, to the said Robert Bright and Mary his wife, until either of them should marry again, and then, to their heirs which should proceed from the said Robert and Mary;” and the said Littleton covenanted with the said Robert, “'that he the said Robert and Mary his wife, immediately after the death of the said Littleton, and Samuel his father, might and should take full possession, have, hold, use, occupy, possess and enjoy, the premises, without let, suit, hindrance, disturbance or molestation of any person or persons whatsoever, until either of them should marry again, and then their heirs, which should proceed from the said Robert and Mary.”
    *That Samuel Watts, the grantor in the deed of September 1/52, survived his son Littleton, the grantee therein, and died in 1797, having first duly made and published his last will, which was duly proved and recorded in 1798, whereby he devised the same premises, so before conveyed to his son Littleton in fee simple, to his [then eldest] son Thomas Watts in fee.
    Under which devise, Thomas entered, and held possession until 1815, when he died, having first duly made his last will, which was duly proved and recorded, whereby he devised the premises to his son Thomas, the tenant in this action.
    And it was found, that the demandants were the heirs at law and devisees of Robert Bright, to whom Littleton Watts conveyed the premises by the deed of December 1777; but it was not found, that they were also the heirs of Mary Bright therein mentioned, or which survived the other, Robert or his wife Mary.
    The question referred by the verdict to the court, was, whether upon this state of facts, the law was for the demandants or for the tenant?
    The circuit court held, that the law was for the demandants, and gave them judgment for the land; from which the tenant prayed an appeal to this court, and he himself executed the appeal bond.
    The cause was argued here, by R. G. Scott for the appellant, and Johnson for the appellees.
    I. Scott objected, that the proceedings were fatally irregular. 1. There was no replication to the plea, and so no mise joined; and though it may not be necessary, that the mise should be joined in the precise form given by the statute, yet it is necessary it should be in some way and in substance well joined. Taylors v. Houston, 2 Hen. & Munf. 161; Chichester v. Boggess, 5 Munf. 98; Green v. Bailey, Id. 246. 2. The tenant was described in the writ as an infant, and a guardian ad litem ought to have been ^assigned. him, before the count was filed (since matter might be pleaded for him that would abate the writ) or, at all events, before any rule was taken against him: he could only appear and plead by guardian, and not by attorney. If he attained to full age pending the suit, that should have been suggested on the record, and thenceforth he might have appeared and defended the action bj7 attorney. 3 Bac. Abr. Infancy and Age, K. 2, p. 616, and seq. ; Colev. Fennel, 2 Rand. 174. But here, not only the infant tenant áppeared and pleaded bj7 attorney, but after trial and verdict, and judgment for him, in the county court, that judgment was reversed by the circuit court, upon consent of parties, the infant still appearing by attorney : but no one could give such consent for him. The writ of error coram nobis would have been bis proper remedy, if the fact of infancy7 had not appeared on the record; but the tenant’s infancy being affirmed by the demandants on the record, there was no question of fact to try. 9 Vin. Abr. Error, I. pi. 13, 18, I. 2, pi. 11, p. 488, 489, 491. It was error in law appearing on the record : therefore, the plaintiff’s proper and only remedy was by appeal to this court. His appeal bond bound his surety, and even as to himself, it is not void, but only voidable; Walmsley v. Lindenberger, 2 Rand. 478.
    Johnson answered, 1. that the want of a replication was wholly unimportant. The statute is not imperative, that the forms therein given shall be pursued; it provides, that the pleadings shall be in the forms given, or to the same effect. Snapp v. Spengler, ante, 1. The count and plea make a complete issue; an affirmation and negation of the right; and the plea prays, that recognition be made &c. so that the replication, which the statute gives the form of, is nothing but a similiter, the want of which is cured in this, as in all other cases, by the verdict. In Taylors v. Houston, the record stated, that the tenant put in the usual plea; but as there is no plea that can be called the usual plea, in such cases, and as the pleadings must be in writing, the court held, that for the want of a plea, there was no assize joined. *In Chichester v. Boggess, the count was by two; the plea defended the right as to one only, and was held naught, because it was a departure. But in Turberville v. Long, 3 Hen. & Munf. 209, the record stated, that the de-mandant replied generally to the plea; and though there is no general replication in such cases, yet this was held good after verdict; which shews, that the want of a replication is immaterial. 2. As to the infancy of the tenant: it is true the praecipe and the count describe him as an infant; but he might have attained to full age before appearance and plea pleaded, and then it was right he should defend himself by attorney. And it is to be presumed the fact was so; for he appeared by attorney, and defended himself in the county court; he appeared by attorney in the circuit court, and consented to reverse the judgment of the county court; and he prayed this appeal in person, and executed the appeal bond. At all events, the writ of error coram nobis was his proper remedy; for the error complained of is, in its very nature, an error in fact; and if lie had resorted to that remedy, and assigned his infancy as error, it might have been pleaded that he attained to full age pending the suit. But if the tenant must be taken to have been an infant in the court below, he is still an infant; he could not appeal; he could not give the appeal bond; he cannot appear here, as he does, by attorney; he must assign errors by guardian ad litem; he cannot assign error in law and error in fact at the same time. Erescobaldi v. Kinaston, 2 Stra. 783; Sheepshanks v. Lucas, 1 Burr. 410, 2 Bac. Abr. Error, K. 2, p. 487, 3 Id. Infancy and Age, I. 6, 607, K. 2, 616; Bing-ham on Infancy, 121, Coke’s entries, 289.
    II. Scott contended, that, upon the merits, the demandants shewed no right to the land. The deed made by Samuel Watts to his son Littleton in 1752, could not enure as a feoffment, for want of livery of seizin ; it could only enure, possibly, as a covenant to stand seized to use; and then, it was a covenant by Samuel the father, tenant in tail to stand seized to the use of Lit-tleton, his eldest son and *heir apparent in tail, after the covenantor’s own death. This is the intent of the instrument clearly expressed; and why not also the effect of it? Taking it so, the estate tail continued in Samuel the father, unaffected by the conveyance: for, “where a tenant in tail limits an estate to commence after his own death, it is absolutely void, and he continues tenant in tail as before; because there, the issue in tail has a right paramount, per formam doni. Therefore, where tenant in tail covenanted, to .stand seized to the use of himself for life, and after to the use of his eldest son and his heirs, it was resolved, that the son should not have the land by this covenant; for when the tenant in tail convenanted to stand seized to the use of himself for life, it was as much as he could lawfully do; the limitation over was void, and he was seized as before.” 1 Cruise’s Digest, Tit. II. Estate tail, ch. 2, 'i 13, 14, 15; 4 Id. Tit. XXXII, Deed, ch. 10, l 31. Then, Little-ton Watts, never having had the seizin or possession of the land, his deed of bargain and sale to Bright and wife, passed nothing. Duval v. Bibb, 3 Call, 362; Tabb v. Baird, Id. 475; Hopkins v. Ward, 6 Munf. 38. The deed to Bright and wife, was an attempt by Littleton Watts, to limit a future use to them upon his own future use, which had been limited by his father’s deed to him, and which was yet unexecuted. However, this deed of Littleton Watts cannot be regarded as a conveyance to Bright alone, much less a conveyance to him in fee ; it is a conveyance to Bright and his wife, until they or either of them shall marry, remainder to the heirs of their bodies begotten ; that is their children, who could only take under this deed as purchasers under the bargainor; so that they cannot claim as heirs or devisees of Bright. And, whether they claim as heirs of Bright, or as purchasers under Littleton Watts, neither he nor Bright ever had seizin of the land, in any sense, upon which the demand-ants can maintain the writ of right. If the deed to Bright and wife could be regarded as conveying an estate of inherit-anee to them, it was a joint estate tail special to them both; and *whichever survived took the whole; Thornton v. Thornton, 3 Rand. 179, and the statute of 1776, abolishing entails, gave the survivor a fee simple. Now, it is not found, that Bright survived his wife; and, therefore, the demandants, who are only found to be his heirs, have shewn no title.
    Johnson. The effect of the deed of 1752, executed by Samuel Watts to his son Little-ton, as well as the intent of it plainly expressed, was, to convey the land to Littleton, immediately, in fee simple, reserving to the father only the usufruct during his life. The deed may well operate as a feoffment; since, the jury find, that the estate was thereby conveyed to the son in fee, which finding includes the livery of seizin neces-sarjr to perfect the conveyance, and the court must intend that it was proved; and besides, the deed was duly recorded, which is tantamount to enrolling in England; and there, livery of seizin is not necessary, when the conveyance is by deed intended and enrolled; Shep. Touchs. 210. But, certainly, if the deed cannot enure as a feoffment, it may be,’for that very reason, and (being to the grantor’s son) is, good and effectual as a covenant to stand to use. Rowletts v. Daniel, 4 Munf. 473. Then, to say that this was a covenant by the father to stand seized to his own use for life, and after to the use of the son, instead of a direct immediate conveyance to the son, with a covenant that the father might enjoy the usufruct for life, would be to make the covenant subjoined to the conveyance the only operative part of it; to give an effect to that covenant, which would control all the conveying parts of the instrument, and defeat and render them wholly nugatory. Taking this as an immediate convej'ance to the son in fee, reserving the usufruct to the father for life, in other words, giving the instrument the very effect its terms import; though, as the law was at the time, it would not have discontinued the estate tail, and prevented the heir in tail from entering as such after the tenant’s death yet it conveyed all the grantor’s estate out of him to the grantee, and gave him the legal seizin. Neither was the grantor’s enjoyment of the usufruct, '^according to the covenant subjoined to the conveyance, at all incompatible with the title and seizin before conveyed to the grantee: the possession of the grantor was not adversary to the grantee. The deed was a conveyance by tenant in tail of the fee simple, at a time, indeed, when he had no right so to convey; but the statute of 1776. for abolishing entails, perfected the conveyance according to its intent; Orn-doff v. Turman, ante, 200. There was nothing, then, to disable the grantee Littleton from making an effectual conveyance of the fee by deed of bargain and sale. Row-letts v. Daniel shews, that the possession by the covenantor to stand seized to use, he claiming only the usufruct for life, did not at all impede or impair the covenantee’s power to convey the estate.
    And he did convey it to Bright by his deed of December 1777; to Bright and the heirs of his body by Mary his then wife; an estate tail special, which the statute of 1776, converted into a fee simple in Bright. Bright was the purchaser; Bright paid the consideration of pflOO. and, accordingly, the premises of the deed import a conveyance to Bright and his heirs by Mary his wife. The habendum to Bright and his wife Mary till they marry, and then to the heirs of their bodies, can no more vary the effect of the premises, and convert the conveyance from one to Bright alone into a conveyance to Bright and his wife jointly, than it can change the conveyance of an estate of inheritance declared and effected by the premises, into an estate only till Bright or his wife should marry.
    Littleton Watts had the seizin in law of the land in question ; he conveyed the same seizin to Bright by his deed in 1777. And seizin in law is enough to maintain the writ of right.
    Even supposing, that the deed of 1752, was only a deed of covenant by Samuel Watts, the tenant in tail to stand seized to the use of his son Littleton, after his own death ; though such a conveyance exceeded the power of the tenant in tail, according to the law existing at its date, yet, surely, x'it no more exceeded his power, than an immediate alienation of the land in fee simple to a stranger, would have exceeded it. If ihe tenant in tail had aliened immediately in fee simple, the case of Orndoff v. Turman shews, that the statute for abolishing entails, would have perfected such a conveyance. Much more must the statute perfect a conveyance by a tenant in tail of the reversion in fee after his death. And it can hardly be doubted, that if one convey an estate to another in fee,' reserving a life estate to himself, the grantee acquires a vested remainder expectant on the grantor’s life, and has such a seizin thereof, that he may convey it by deed of bargain and sale. So that, in whatever light the deed of 1752, from Samuel Watts to his son Littleton, may be viewed, Littleton’s conveyance to Bright is good and effectual; and the only question is as to the effect of that conveyance.
    
      
      Writ of Right — Who May Maintain. — In Taylor v. Rightmire, 8 Leigh 478, it was held that, in Virginia, a writ of right may be maintained by a devisee, upon the possession or seizin of his testator. In delivering his opinion. Tucker, P., lays down the proposition that the devisee of amere right of property maymaintain awrit of right andsays: “Itremains but to observe that Judge Green, in Watts v. Cole and Wife, etc., bas strongly expressed tbe contrary opinion; but as it was nota question in tbe cause, tbe case furnishes no authority. And yet he admits that a devise of a right of entry is good, and gives the right to sue in ejectment. Now a devise of a right of entry does not cast the freehold or possession on the devisee, as it does where the devisor is seized. The plaintiff in ejectment therefore must avail himself of the devisor’s possession. And hence it seems to me, that if the devise of a right of entry gives the remedy by ejectment, the devise of the right of property carries along with it the power of maintaining a writ of right." To the point that in Virginia a devisee of a right of entry may maintain ejectment, the principal case is also cited by Tucker, P.. in his opinion in Taylor v. Rightmire, 8 Leigh 475.
      Seizin — Presumption by Court. — To the point that seisin cannot.be presumed by the court, even if the jury have found facts from which they might have properly presumed it, the principal case is cited in Dawson v. Watkins, 2 Rob. 267.
    
   GREEN, J.,

delivered the opinion of the court. The deed from Samuel Watts to Littleton Watts cannot operate as a feoffment for the want of livery of seizin, which, is not found by the jury, and could not be presumed by the court if the jury had found facts from which they might have properly presumed it. They have not however found any such fact; not even that the grantee entered and was seized according to the conveyance; nor could they have properly found any fact, from which thejr could have inferred the fact of livery of seizin; since, according to the terms of the deed, taking it all together, the grantee was not authorized to enter until after the death of the grantor. So that Littleton Watts never had any seizin, actual or legal. Nor could the deed operate as a deed of bargain and sale, for the want of a valuable consideration. But it might operate as a covenant to stand seized for the use of the grantee after the death of the grantor; the consideration expressed being perfectly appropriate to the support of such a conveyance; unless, indeed, the conveyance is liable to some other fatal objection, as I think it is. *The laborious investigations imposed upon the court in Orndoff v. Turman, having taught me, that, at the time when this deed was made, our law in respect to estates tail and all their consequences, was the same as the english, except that an act of 1748 prohibited the docking of entails by fine or fines and recovery, as in England, and allowed them to be docked only by an act of assembly, or, in respect to estates of small value (of which this was probably one), by proceedings under a writ of ad quod damnum: that a conveyance in fee by tenant in tail, by covenant to stand seized to uses, with or without warranty, produced no discontinuance, but that it conveyed to the covenan-tee a base fee, which might be converted into a pure fee, by a fine and recovery in England, or writ of ad quod damnum or act of assembly here: and that if the tenant in tail, notwithstanding such a conveyance, continued seized, and, consequently, a good tenant to the praecipe (as he might be, if the covenant was, to stand seized to his own use for the life of another, and after the death of that other to the use of a third, in fee) and by any legal means docked the entails, with intent to vest the fee in himself or a stranger, the proceeding enured to the benefit of the first covenantee, and operated as a corroboration of the former conveyance, and made it indefeasible: and so, in respect to all charges and incumbrances imposed upon the estate by a tenant in tail. But if a tenant in tail covenant to stand seized to the use of himself for life, and afterwards of his heir apparent or a stranger in fee (which would be good in the case of a fee simple owner, Pybus v. Mitford, 2 Lev. 77,) it would operate no change in his estate, and he would be seized as of his former estate, and the remainder consequently utterly void: and if he after-wards docked the estate tail, by any lawful means effectual to bar his issue and those in remainder or reversion, and thereby settled the estate in fee in himself or a third person, that would be good, and would prevail against his first deed, which would not be set up and corroborated by docking the entail, as in the former case; because in the first case the *deed is good and passes a base fee capable of being corroborated into a pure fee; and in the last, the deed is void, making no change in the estate, and incapable of being set up by the docking of the entail. This was the precise case, and so decided in Higham v. Bedingfield, Noy, 46, Cro. Eliz. 895, by the unanimous opinion of the court, and approved by Bacon in his law of uses, 111. See also Machell v. Clarke, 2 Ld. Raym. 779, 2 Salk. 619. The statute of 1776, converting this estate tail remaining in Samuel Watts to a fee simple, cannot have a greater effect, than docking such an estate in England, by fine and recovery, or here by a writ of ad quod damnum, would have had in favour of the covenantee Lit-tleton Watts, and those claiming under him.

There is another fatal objection to the right of the demandants to recover in this case. If-they claim as heirs, neither they nor their ancestor as whose heir they claim, have ever been seized in law or in fact of the premises in question; and without a seizin of the demandant or his ancestor in fact, by the actual possession and receipt of the esplees, by the cbmmou law, or a seizin in law, under our statutes, no writ of right can be maintained, even though some right may exist in the demandant. It is for this reason, that a writ of right cannot be maintained by a devisee, unless upon his own seizin; Co. Litt. 111, a. 240, b. 2 Scho. & Lef. 104, per Lord Redesdale in Saunders v. Ld. Annesley. If a right of entry is devisable under our statute of wills, as I think it is, though it is not in England (Goodright v. Forrester, 8 East, 552), the devisee can recover only in ejectment; and if the demandants claim as such, in a writ of right, they are not only incapable of maintaining the writ of right, but are barred of their ejectment by the statute of limitations.

The law being for the tenant on the special verdict, he may well wave the objection of infancy, and the failure to make up the issue: and the demandants have no interest in taking up the last of those objections, since they would gain ^'nothing by it. We may, therefore, properly end this controversy, without noticing those objections, by entering a final judgment on the special verdict for the tenant.

Judgment reversed, and judgment entered for the appellant.  