
    GENERAL COURT,
    MAY TERM, 1796.
    Linney Hopkins and Martin Housar, and Mary his Wife, Lessee, against John Threlkeld.
    EJECTMENT, for part of a tract of land called The Dunghill, lying in Montgomery county.
    By the statement of facts submitted to the court for their opinion, it is admitted and agreed, that the tract of land called The Dunghill, containing 536 acres, was granted by Charles, late Lord Baltimore, on the 10th of August, 1715, by patent, to Walter Evans. That the said Walter Evans, by virtue of the said patent, was seised and possessed of the said tract of land, and being so seised, on or about the 10th of August, 1724, did execute a deed of conveyance to James Herbert and Eleanor his wife, by which he conveyed “ unto the said James Herbert, during his lifetime, and Eleanor his wife, and the heirs of her body, lawfully begotten, for ever, all the said Walter and Ann his wife’s right of, in and to the aforesaid tract and parcel of land called The Dunghill, lying in Prince George’s county aforesaid, beginning, &c. including 100 acres j to have and to hold the said Walter and Ann their right of, in and to the aforesaid tract of land, with the premises and appurtenances, unto him the said James during his lifetime, and Eleanor his wife, and heirs, lawfully begotten, for ever, to the only proper use, benefit and behoof of them the said James Herbert and Eleanor his wife as aforesaid.”
    It is further agreed that in virtue of the said deed, the said James Herbert and Eleanor his wife, (daughter of the said Walter Evans,) entered into the 100 acres mentioned in the declaration, and were seised and possessed thereof, and had issue Wiliiam Herbert, who is since dead without issue, and Linney Herbert, (now Linney 
      Hopkins, and one of the lessors of the plaintiff,) and the said James Herbert departed this life, intestate, about ^ year 1740; that his widow afterwards intermarried with a certain William Pritchard, by whom she had issue a daughter named Mary Pritchard, now Mary Housar, by virtue of her marriage with Martin Housar, which said Mary and Martin are lessors of the plaintiff, and, with Linney Hopkins aforesaid, claim the land mentioned in the declaration. That the said Mary, at the time of her first intermarriage with a certain Nathan Offutt, on the 2d February, 1767, was of the age of 16 years, and no more, and that she continued under cover? ture until the month of May, in the year 1777, when the said Nathan Offutt died, and afterwards, some time in the month of June, 1770, the said Mary intermarried with Martin Housar, her present husband. That Linney Hopkins, formerly Linney Herbert, intermarried with a certain James Hopkins some time in the year 1761, which said James departed this life in the year 1780.
    It is further agreed that Eleanor Herbert, in the deed mentioned, after the death of her husband James Her? bert, continued in the possession of the premises until the time of her death, which happened in the year 1762, when she died intestate, and left issue as aforesaid. That William Herbert, the son, on the 19th of October, 1753, made a deed of bargain and sale with warranty of the land in question to Henry Threlkeld. That afterwards, in the same year, the said William Herbert left this state, and died in the month of April, 1783, intestate, and without issue, in North Carolina. That in the year 1762, after the death of the said Eleanor, the said Henry Threlkeld entered into the premises in virtue of the deed to him, and continued seised and possessed under the said deed until the time of his death in 1783, when he died intestate leaving the defendant, John Threlkeld, his only son and heir at latv, to whom the said land descend»
    
      ed, and who hath been ever since the death of his father, and still is, seised and possessed of the same.
    If, upon this state of the case, the court are of opinion that the plaintiff is entitled, then judgment, to be entered for possession and costs; if not, judgment of nonsuit to be entered.
    
      Cooke, for the defendant.
    On the 10th of August, 1724, Walter Evans conveyed, in the premises of the deed, to “ James Herbert, during his life and the life of his wife Eleanor, and the heirs of her body,” the premises in question. The habendum is, “ to the said James, during his life and the life of the said Eleanor, and her heirs, lawfully begotten.”
    This deed conveys no estate to Eleanor, unless by implication, either in the premises or in the habendum. If this is the construction, then the limitation to the heirs of Eleanor, in the habendum, is a contingent interest to vest in such person as should be her heir, at the time of her death, in fee-simple ; because the property passing by deed, the habendum does not limit of what body the heirs should be, it cannot be restrained by intendment to make it an estate tail. See 1 P. Wms. 70. 2 Ld. Raym. 1144. Salk. 620. 3 Salk. 336. Cro. Eliz. 478. Mo. 424. Vin. Grant, I. K. L. & M. 3 Bac. Abr. 260, 261.
    If James Herbert, the eldest son of Eleanor, took an estate in fee, which I contend he would do, after the death of his mother, either as a contingent interest by purchase, or through his mother by descent; in either case having alienated the estate in her life by the deed dated 29th October, 1753, with warranty, he and the lessors of the plaintiff claiming through him, are barred by the warranty, and may be rebutted. Lit. s. 706, 707. Harg. Co. Lit. 374. b. Saund. Uses & Trusts, 432. Co. Lit. 365. a. 385. a. Shep. 327. 5 Bac. Abr. 447.
    If the court should think the deed of the 10th of August, 1724, conveyed an estate tail to Eleanor, (which I think it impossible to show,) then I contend the deed of 29th of October, 17SB, with warranty, is a discontinuance estate tail, and more than twenty years’ adverse possession have since elapsed, and more than ten years since the disability ceased of Mary Housar, in 1777, and of Linney Hopkins, in 1780, have elapsed before the bringing of this ejectment. And moreover, a descent has been cast by the death of Henry Threlkeld, and more than five years’ adverse possession thereafter by his son, the present defendant. •
    A tenant in tail may discontinue, but he cannot disseise the heir; because the heir has no claim but in representation after his death. Gilb. Ten. 116, 117.
    A bargain and sale, release or covenant to stand seised with warranty, is a discontinuance. Harg. Co. Lit. 330. n. Gilb. Ten. 119, 120. 1 Salk. 245. Harg. Co. Lit. 327. b. 328. a.
    If the estate is discontinued, then the action of ejectment will not lie, and the heir is put to his formedon. Runn. Eject. 12.
    
    The lessor must have a right of entry to support an ejectment; therefore, if there be a descent cast, or a discontinuance, the issue is put to his formedon. Runn. Eject. 11, 12. 3 Bl. Com. 206.
    I consider the general operation of the statute of limitations to be, that if there be a disseisin or ouster when there is no disability, it will overrun infancy or coverture which may afterwards intervene. But if the ouster is against an infant, &c. then he has twenty years from the time of the ouster, or ten years after the disability is removed, as it may be most for his advantage. In this case, supposing the conveyance of the son, in 1753, did not operate as a disseisin, yet the tortious holding commenced in 1756, and continued after the death oí Eleanor, who died in 1762. It then commenced at least as against William, and all others claiming through him.
    If the issue of Eleanor took an estate in fee-simple, his conveyance and warranty without assets is a bar to him, and all others claiming through him. If he would have taken an estate tail, then it operated as a discontinuance, and the action of ejectment will not lie. In either case, the tortious holding, and descent cast, would bar the right of entry, and the case seems not void of merits on the point of limitations.
    
      Duvall, for the plaintiff.
    On the 10th of August, 1?24, Walter Evans conveyed by deed to James Herbert, during his lifetime, and Eleanor his wife, and the heirs of her body, lawfully begotten, for ever, the land in question, being part of The Dunghill. These are the expressions in the premises of the deed. Habendum unto him the said James, during his lifetime, and Eleanor his wifea and heirs, lawfully begotten, for ever; as may be seen fay reference to the deed. Mr. Cooke is inaccurate in his state of the case.
    It must be admitted that the expressions of the deed are not clear and explicit, and the habendum is different from the premises. But taking the whole together, I think the intention is apparent, and I conceive that the words made use of are sufficiently clear to designate the estate intended to be given. In the creation of an estate tail, it is requisite that the words show from whose body the heirs must proceed.
    It appears to me that the deed above mentioned conveyed to James Herbert an estate for life in the land in dispute; remainder to his wife and her heirs in tail; Or it conveyed an estate for life to the husband and wife, remainder to her issue in tail.
    To create an estate in tail, it is requisite that words be used to show from whose body the heirs must proceed. Such words are used in Evans’s deedj the lands are given to James Herbert during his lifetime, and Eleanor bis wife, and the heirs of her body, lawfully begotten.
    For the defendant, 1 P. Wins. and several other author j-Jtíes are cited to prove that the deed conveyed a fee to the children of the wife. All the authorities cited speak of the same ease, which case is very different from that under consideration; it arose on a deed of surrender ad opus et usum peedicti Zacharim for his life, and after his decease, to the use of Valentine Cliffhis eldest son, and Alice, his wife, pro et durante termino vitarum suarutn et htsredum et assignatorum prwdictorum Valentini et Alicice, Sic.
    If Evans’s deed had conveyed the premises to James Herbert for life, and afterwards to his wife and her heirs and assigns, then the cases would have been similar, and in the cases cited the judges were divided in opinion.
    In all cases where a limitation in a deed has been adjudged in fee-simple, it has been for want of proper words to describe of what body the issue should be, and this is the reason given. In the case under consideration, it is plain that the heirs were to proceed from the body of Eleanor Herbert, who was a daughter of the donor, Walter Evans.
    
    If I am right in my construction of this deed, then the deed of William Herbert, the son, dated the 29th of October., 1753, cannot work a discontinuance of the entail; because William was not tenant in life, his mother being then alive, and in possession of the premises, and she continued in possession until the time of her death, which happened in 1762.
    The counsel for the defendant states, that tenant in tail may discontinue, &c. but it will not be contended that the deed of the heir in tail, in the lifetime of the ancestor, and while the ancestor is seised and possessed, to a stranger, will discontinue the estate tail. The deed of William is wholly inoperative.
    The defendant’s case, I apprehend, has no merits oa the point of limitations. Mrs. Herbert, the mother of the lessors, died seised in 1762, in the infancy of her children; and although they claim through her; and not through William, yet they had no right of action until after his death, which happened in 1783, and this ejectment was brought before a lapse of ten years.
    The defendant never entered until after the death of Mrs. Herbe■ t, in 1762; the lessor was then an infant, and married during her infancy, and she was a feme covert at the time of the death of her brother, and has continued so ever since.
    The warranty cannot affect the lessors of the plaintiff, the son, William Herbert, not being in possession. Harg. Note on Co. Lit. 374. a.
    Cooke, for the appellant.
    
      Mason and Duvall, for the appellee»
   The Court

gave judgment, on the case stated, for the plaintiff; and cited, “ It is a maxim that he who has no freehold in the land cannot, by any means, discontinue the estate therein.” Bac. Abr. Discontinuance, 90. 95. Garth. 110.

The defendant appealed to the court of appeals, and in that court the case was, by consent, dismissed at Nov cm; her term, 1796.  