
    * Davis and Wife v. Martin.
    Wednesday, Nov. 11th, 1812.
    1. Wills — Devise of Land of Which Testator Disseised.— A testator who died before the 1st of January,. 1787, (when the act of 1785, ch. 61. took effect.) could not devise a tract of land, of which he was. actually disseised, when he made his will, and at the time of his death.
    See Hyer v. Shobe, 2 Munf. 200-204, and Taylor, ex dem. Atkyns, v. Horde et al., 1 Burr. 110. 111. 112, 113. as to the distinction between an actual, disseisin and a disseisin at the election of the person injured.
    2, Real Estate — Disseisin—What Constitutes — Case at Bar. — If A. be tenant of the freehold, and B. tor-tiously enter upon, and turn the subtenant of A. out of possession, claiming-the land as his absolute property; and he, or those claiming under him, continue to hold the same, by actual adverse possession, until the death of A., this is an actual disseisin of A.: so that (in such a case, before the 1st of January, 1787) he could not, for the purpose of being enabled to devise the land, elect to-consider himself as not disseised.
    See 1 Burr. 112.
    This appeal was from a judgment of the district Court of Charlottesville, according to a verdict, in favour of John Martin, the tenant, at the suit of Staige-Davis, and Elizabeth his wife, demandants, in a writ of right.
    On the trial of the cause, and before the rendition of the verdict, it was agreed by the parties, that James Gardner, claiming title to the land in the court and plea mentioned, (by a conveyance from Parmenus Booker, bearing date the first day of December, 1740; Booker claiming the same by a patent issued to him the 20th day of June, 1733, on a survey made for his father, Ralph Booker, the 28th of August, 1718,) entered upon, and took possession of the said land, prior to the year 1752, and remained possessed thereof, by actual cultivation and occupancy, until about the year 1767, when he removed his overseer and hands from said land, and rented the same, for that and several succeeding years, to one Faulkner and others; that the said James Gardner, being then aged, and confined to his house, which was upwards of ninety miles from the land, trusted the same to the possession of his tenants aforesaid; that, about the year 1769, one Lewis Craig entered upon and took possession of said land, claiming the same as his by a conveyance from Hugh Sanders, by deed of bargain and sale, dated the 14th day of November, 1766; and contending that the survey made for Hugh Sanders, the 27th of February, 1727, and the patent which issued to him on the 28th day of September, 1728, comprehended this land; that the said Lewis Craig remained in the actual adverse possession of said land, claiming the same as his, from the year 1769, until the 6th day of August, 1779, when he, by deed of bargain and sale, *conveyed to the tenant, John Martin, that part of said land now held by him, and put him in possession thereof; and that he has ever since held possession thereof, claiming the same as his; that, about the year 1721, Ralph Booker took possession of, and settled some servants and an overseer on the lands in controversy; and that the aforesaid Parmenus Booker obtained a patent on the survey of said Ralph, claiming as his heir at law; that James Gardner, aforesaid, made and published his last will and testament on the 8th day of March, 1784, which was set forth in hasc verba; that he departed this life in the year 1785; that Anthony Gardner, named in the said will, (as residuary devisee, was then alive, and capable of taking the estate devised; that the land in controversy is a part of the residue of the estate of the said testator; that John Gardner was the eldest son, and heir at law, of said James, and departed this life in the year 1784, leaving the female demandant, his only child, and heir at law, who intermarried with the other demandant before bringing this suit.
    On this agreement of facts, the tenant, by his counsel, alleged, that, whatever might be the result of the inquiry by the jury, as to the identity of the lands, covered either by the patent of Parmenus Booker, or by that of Hugh Sanders, it was immaterial as to this cause, and contended, 1st, That if the testator, James Gardner, had held this land by title superior to that under which the tenant holds, and had even been disseised thereof, that he could devise the same, and did devise the same, by the said last will, to Anthony Gardner; 2dly, That, from the facts admitted, the said James Gardner was not disseised of said lands, and therefore could devise the same; and that, he having done so, the demandants ought not to recover the said land, the right thereto being now out of them; and moved the Court to instruct the jury to that effect.
    The Court was of opinion, and did instruct the jury, “that if the testator, when he made his will, and at *the time of his death, was actually disseised of the lands in controversy, he could not devise the same; but that the aforesaid conveyance by deed of bargain and sale, made by the said Hugh Sanders to the said Lewis Craig, and the said Lewis Craig’s entry and possession under the same, and the said several other conveyances, entries, and possessions so made, taken, and held, as aforesaid, by and under the said Craig, were not sufficient, in law, to work an actual disseisin of the true owner of lands, in spite of such true owner; and that, therefore, if it should appear to the jury, on further testimony, that the said James Gardner was, at the time of executing the said will, the true owner of the said lands, and duly seised thereof, and that, from that time, and at his death, he remained the true owner, his devise of the said land was good and effectual to pass the same.” To which opinion of the Court the demandants excepted.
    Wickham, for the appellants.
    Botts, for the appellee.
   Tuesday, March 16th, 1813, the president delivered the opinion of this Court, “that the testator, James Gardner, in the case agreed mentioned, having died prior to the commencement of the act of assembly concerning wills, the distribution of intestates’ estates, and the duty of executors and administrators, and not being seised of the premises in question, at the date of his will, or at the time of his deatn, there is no error in the opinion of the district Court in the first member of the bill of exceptions contained; but that the instruction given to the jury, as contained in the second member thereof, was improper, in this, that the facts agreed in the case amounted to a disseisin of the premises at the said periods respectively; and that the said judgment is erroneous.”

Judgment reversed, the verdict set aside, and the *cause sent to the Superior Court of law, directed to be held in Albemarle County, for a new trial to be had therein, on which the said last-mentioned instruction is not to be given.  