
    *Duvall and Others v. Bibb.
    [Saturday, May 7th, 1803.]
    Ejectment — Statute of Limitations. — In ejectment a man cannot object his own possession for twenty years against his own deed given within that period.
    Same — Statute of Jeofails. — If, in ejectment, the demise and ouster he laid precedent to the plaintiff’s title, it is cured by the act of Jeofails.
    Conveyance — Possession of Grantor.— If the bar-gainor continue in possession after the conveyance, that possession will not render a conveyan’ce by the bargainee void.
    In ejeetmént brought by. Duval and Younghusband, against Bibb, for a tract of land, the jury found a verdict for the plaintiffs subject to the opinion of the Court’ oh a case which states, that Bibb, by deed dated the 13th of December, 1788, and recorded on the 16th of the same month, conveyed the lands to Graves. That Bibb was, at that time, in actual possession, and had been so for upwards of twenty years. That Graves, oh the 28th of .November, 1793, conveyed to Duval and Younghusband. That there was no proof ‘ ‘that Graves was ever in actual possession, or ever entered upon the premises, for the purpose of executing the last mentioned deed; but that the defendant now, and always hath had adverse possession of the premises against the said Graves, and all holding by or under him, except as to the operation of the deeds aforesaid.”
    The District Court gave judgment for the defendant; because “the demise and ouster laid in the plaintiff’s declaration is 'precedent to the accruing of his title.” To which judgment the plaintiffs obtained a writ of supersedeas from a Judge of this Court. .
    Call, for the appellant.
    . The. objection made by the District Court, is expressly cured by the act of Jeofails. [R. C. c. 128, ? 102, ed. 1819.]
    Randolph, .contra.
    If the District Court, erred upon ' the ground they mention, which is not admitted, still, if they were right on any ground it will be sufficient; and it does not appear that the plaintiff ever was in possession within twenty years next before the suit. On the contrary, Bibb was *in adversary possession, and the deed was no interruption of it.
    PENDLETON, President. Did not the whole interest pass by the deed from Bibb to Graves? I thought you had intended to argue the point, whether Graves being out of possession, could convey to Duval.
    Randolph.' If the Court are against me on the other points, I hope I shall be permitted to argue that.
    Cur. adv. vult.
    
      
      Ejectment — Statute of Limitations, — The principal case is cited in Newby v. Blakey, 3 Hen. & M. 61, for the proposition that, in an ejectment, a man cannot object his own possession for twenty years, against his own deed given within that period.
    
    
      
      Sanie -Statute of Jeofails, — A demise being laid in ejectment, before the title of the lessor of the plaintiff -accrued, cannot be taken advantage of after issue joined. Whittington v. Christian, 2 Rand. 353, citing, on pp. 356, 382, the principal case as authority. See monographic n,ote on “Ejectment” appended to Tapscott v. Cobbs, 11 Gratt. 172; and monographic note on “Amendments” appended to Snead v. Coleman, 7 Gratt. 300.
    
    
      
      Conveyanee — Possession of Grantor— Fiduciary.— Actual possession by the grantor is not indispensable to give effect to his deed, for if the possession held by another be of a fiduciary character or if its origin and continuance were such as not to. amount to a disseizin except at the election of the owner for the purposes of the remedy, it will not impede the operation of the deed. Early v. Garland, 13 Gratt. 8, citing the principal case; Tabb v. Baird, 3 Call 475; Jackson v. Todd, 2 Caines’ R. 183; Williams v. Snidow, 4 Leigh 14. For this proposition theprinci-pal case is. further cited in Williams v. Snidow, 4 Leigh 17.
      Same — Same—Statutory Possession. — For a deed of bargain and sale, by a bargainor, who is in statutory, though not actual, possession of the premises, conveys a title under which the bargainee can recover. In support of this proposition, see the principal case cited and approved in Williams v. Snidow, 4 Leigh 17; Tabb v. Baird, 3 Call 480, 481, 483. et seq.; Birthright v. Hall, 3 Munf. 539; Clay v. White, 1 Munf. 168. Special reference is made to the lengthy discussion of the principal case by Judge Roane in .Tabb v. Baird, supra, in which he distinguishes that case from the principal case. The principal case is also distinguished by Judge Carrington, in Tabb v. Baird, 3 Call 486. See the principal case cited in this connection, in Greer v. Mitchell, 42 W. Va. 514, 26 S. E. Rep. 309. See 2 Min. Inst. (4th Ed.) 641.
      Same — Same—Mortgagor and Mortgagee — Analogous Case. — It was held in Chapman v. Armistead, 4 Munf. 382, 396, that the possession of the mortgagor, con-, tinuing by the mortgagee’s permission, is to be considered the possession of the mortgagee. The case was said to be essentially analogous to the principal case, in which it was decided that the possession of the bargainor was the possession of the bargainee; and, therefore, no obstacle to the full operation of a deed from the bargainee to a third person, under the act of the assembly on that subject.
      Statute of Pretensed Titles — Construction. — The principal case is cited in Middleton v. Arnolds, 13 Gratt. 490, for the proposition that the. “act concerning pretensed titles” imposed a penalty, but did not avoid a conveyance. See the principal case cited on p. 493 of Middleton v. Arnolds, supra. Duval v. Bibb, 4 Hen. & M. 113, is the sequel to the principal case.
    
   PENDLETON, President.

The right of entry of Graves, under whom the plaintiffs claim, accrued on the conveyance in 1788. If that conveyance had been from a third person, Bibb’s possession would have been a bar to the entry; but surely, he cannot avail himself of it against his own deed. On that point the Court have no doubt..

The objection on which the District Court founded its judgment, if any thing in it, is cured expressly by our statute of Jeofails.

Bibb being in possession when he conveyed to Graves, there can be no doubt of the legal operation of that deed.

But Graves being out of possession, and that stated to be adverse in Bibb, when the bargain and sale to the plaintiffs was made by Graves,’ the counsel are permitted, as they desired, to argue the question, whether any title passed to the plaintiffs by that deed.

Call, for the appellant.

That question depends upon the common doctrine relative to choses in action, which has of late years undergone very great alterations. [Master v. Miller,] 4 T. R. 340. It was formerly *held that a mere possibility was not assignable ; but that doctrine is now completely reversed. [Roe v. Jones et al.,] 1 E. Black. 30; and if such a contingent and uncertain estate as that could be granted, it would seem much more reasonable in such a case as the present: Otherwise, innumerable inconveniences would follow; for, then a man in debt, but out of possession, could not dispose of his lands to relieve himself from difficulties; and trustees could not sell under a deed of trust, unless the debtor would consent to give them possession. Reason and public convenience are, therefore, strongly in favor of the conveyance, unless the act of Assembly against buying and selling pretensed titles, shall be thought to make a difference. But it would be extraordinary, if a man were to be received to say, against his own deed, that his own vendee obtained a pretensed title only; and it is scarcely credible, that the Legislature could have intended that a purchase under a deed of record, which is prima facie evidence of a complete title, should be rendered void by the possession of the vendor.

Randolph, contra.

The verdict finds that Graves never was in possession; and at common law, there must have been a junction of both right and seisin, in order to enable the latter to convey. 2 Black. Com. 314, 290; Co. Litt. 214, 266. The same rule holds good with regard to conveyances under the statute: Which unites the use with the possession; but that necessarily supposes the bargainor to be in possession ; or else the statute could not transfer his possession to the use. A seisin in law is not enough; for, that is not sufficient for any purpose but a descent. 1 Inst. 49; Plowd. 139. Besides, the contrary doctrine is expressly against the act concerning buying and selling pretensed titles; and a conveyance against a rule of law or statute cannot be supported. [Per Holt, C. J., in Bartlett v. Vinor, Carth. 252.

*Wickham, for the appellant.

The tenant of the freehold may convey ; and the act of Assembly, Rev. Code, 167, made Graves tenant of the freehold, immediately, on the execution of the deed to him. But, a man once seised continues seised, until he is actually' disseised. Taylor v. Atkyns, 1 Burr. 110, [Smartle v. Williams,] 1 Salk. 245; [Blunden v. Baugh,] Cro. Car. 302; [Powsely v. Blackman,] Cro. Jac. 660; which likewise shews that the owner may elect to consider himself disseised, or -not, at his pleasure. The jury have not found an adverse possession positively, but conditionally: and, therefore, according to the doctrine, Graves had a right to consider himself disseised, or not, as he pleased; and, consequently, had a right to convey.

Cur. adv. vult.

PENDLETON, President, delivered the resolution of the Court, as follows:

This is a supersedeas to a judgment of the District Court of Charlottesville, in ejectment, commenced there by the appellants against the appellee; in which the jury find a special verdict, stating, that the defendant Robert Bibb, by deed of bargain and sale, dated December 13, 1788, which was duly recorded, conveyed the lands in question to Francis Graves in fee, and covenants to warrant and defend the land to Graves, his heirs and assigns, against himself and all others. That Graves, by a like deed, dated November 28, 1793, also duly recorded, conveyed the lands to the plaintiffs in fee, with a general warranty. That, at the time of the first conveyance, the defendant Robert was in possession, and had been for upwards of twenty years. That no proof was made that Graves was ever in actual possession, or ever entered into the land, for the purpose of executing his deed to the plaintiffs; but, that the defendant Robert has now, and always has had, adverse possession of it, against Graves, and all holding under him, except as to the operation of the deeds. On this verdict, judgment was given for the defendants; because, as the record states, the demise and *ouster, as laid in the declaration, appear to be prior to the commencement of the plaintiff’s title.

The first question arises on the reason given by the Court for their judgment; but, this is plainly decided by a clause in the act of Assembly of 1792, p. 119 of the R. C. [c. 128, 'i 102, ed. 1819,] that, after issue joined on the title only, in ejectment, no exception of form or substance shall be taken to the declaration in any Court whatsoever.

As to the twenty years possession in Robert, prior to his conveyance to Graves, it only proves that he had a good title in ejectment, and a right to make that conveyance, and cannot operate as a bar by the act of limitation to the plaintiffs claiming under Graves, whose right of entry accrued only eight years before suit brought.

The third, and principal question is, whether the bargain and sale of Graves, (then out of possession) to the plaintiffs, passed his title to them? As an objection to its passing the title, the statute and act of Assembly against buying pretensed titles, were relied on, as having, in addition to the severe penalty on the buyer and seller of the land, made the conveyance void. It is unnecessary to consider whether those laws produced the effect contended for, since we are all of opinion that the purchase of the plaintiffs is not within the act of Assembly, which has this exception: “unless, the person conveying, or those under whom he claims, shall have been in possession one whole year next before. ’ ’ Here, Graves, was the person conveying, and Bibb, the person in possession, was him under whom Graves claimed; so that, literally, Bibb is excluded from making the objection; and, if it depended upon construction, could the plaintiffs possibly suppose, when they purchased, that Bibb’s possession was adverse to the title of Graves, to whom he had conveyed the land, with a general warranty? Whether a person out of possession can convey his *title by bargain and sale, or any other statutory conveyance, seems settled by the decisions in England, under their statute of uses; and our act of Assembly, E. C. 167, [c. 99, § 29, E. C. ed. 1819,] in conformity to those decisions,, has added a clause, not in the statute of uses, that those conveyances shall transfer the possession to the use, as perfectly as if the bargainee had been enfeoffed with livery of seisin of the land conveyed. The Court are, therefore, of opinion, upon this point, that the title of Graves passed to the plaintiffs by the bargain and sale, and gave them a good title against Bibb: And, upon the whole, that there is error in the judgment of the District Court; which is to be reversed with costs, and judgment entered for the plaintiffs.  