
    Williams vs. Woodard.
    A writ of right cannot be sustained by a devisee upon the seisin of his testa, tor; and accordingly a count by a devisee claiming the premises upon the seisin of the devisor was adjudged upon demurrer to be bad.
    Leave to amend, however, was given upon the usual terms.
    Demurrer to count in writ of right. By the writ, the sheriff is directed to command the defendant to render to the demandant one messuage, 200 acres of meadow land, &c. which the demandant claims to be his right and inheritance, and whereof he complains that the defendant deforces him, and unless, &c. and if, &c. to summon, &c. In the count the demand-ant demands one messuage, &c. as by right and inheritance, by writ of the people of the state of New-York of right, and therefore saith that John Williams, esquire, late of, &c. the father of •the demandant, long before and at the time of making the devise hereinafter mentioned, was seised of the messuage and tenements aforesaid, in his demesnes, as of fee and right, in the time of peace, to wit, within 25 years now last past, by taking the esplees thereof, to the value, &c., and being so seised thereof on the third day of March, 1806, duly made and published his last will and testament, and thereby gave and divised the messuage, &c. above demanded, to the said demandant, his heirs and assigns, forever ; and the demandant further saith that the testator afterwards, to wit, on the 22d July, 1806, died seised of the messuage, &c. without altering or revoking his will; upon whose death the demandant became seised, under and by virtue of the will, of the messuage, &c. as his right and inheritance as divisee as aforesaid, and that such, his right, he offers, &c. To this count the defendant demurs, and signs for causes of demurrer, 1st. That the demandant demands the said messuage, &c. as his right and inheritance, when, by the count, it appears that the right of the demandant came to him by devise of will, and not by descent or inheritance ; and 2d. That he claims his right and title to demand the said messuage, &c. by devise of will, and not by descent or inheritance, and does not allege that he was ever seised thereof by himself taking the esplees thereof, to the value, Sic. within the time of peace, to wit, within 25 years next before the suing out of the writ, Sic.
    S. Stevens, for defendant.
    
      J. Willard, for plaintiff.
   By the Court,

Sutherland, J.

This is a demurrer to the plaintiff’s count in a writ of right ; and the main question which it presents upon the merits is whether a writ of right can be sustained by a divisee upon the seisin of his testator. It seems to be- well settled by the English authorities that it cannot. In Coke Lit. 293, a., Commentary on § 514, it is said, if neither he, the demandant, nor any of his ancestors were seised of the land within the time of limitation, he cannot maintain a writ of right, for the seisin of him of whom the demandant himself purchased the land availeth not Mr. Sergeant Williams, in a very elaborate and learned note to Williams v. Gwyn, 2 Saund. 45, b. says: “ In order to maintain this action, (a writ of right,) the demandant must shew an actual seisin, either in himself or his ancestor, by taking the espjeeg or profitg 0f the land ; therefore it is held that a purchaser cannot maintain the action, unless upon his own seisin, and that the seisin of the person from whom the demandant purchased is not of any avail; for seisin in the ancestor necessarily'means seisin in a person from whom there is a descent and cites the section and commentary already referred to in Coke Lit. 293, a., and Dally v. King, 1 H. Bl. 1.

In Dally v. King, the demandant claimed as heir to a devisee in fee in remainder, who of course took by purchase, and who died before the determination of the particular estates for lives upon which his" remainder, was expectant, so that he was never seised of the land, and upon bis death the remainder descended upon the demandant as his heir, who brought a writ of right; it was held that he could not recover, because there was no seisin, either in'himself or his ancestor, the devisee, by taking the esplees. That case, it is true, does not decide that a devisee cannot recover on the seisin of his testator. The demandant was not the devisee, but was the heir at law of the remainderman, who died before the determination of the particular estates,' and of course without ever having been actually seised. There was no actual seisin . therefore, except the seisin of Maurice Barby, the testator, and of the devisee’s tenants for life under his will, by whose death the estate had devolved, under the will also, upo’n John Barby, from whom it descended to the demandant as his heir. The demandant claimed as heir of J ohn Barby, and it was indispensable that he should show seisin either in his ancestor or himself. The seisin of the testator of his ancestor could not avail ■ him, admitting that the devisee might recover on the seisin of his devisor, because the demandant was not such devisee. Claiming as heir, he must show seisin in himself or his ancestor. But the broad doctrine was advanced in that cáse, that a purchaser could not recover in a writ of right on the seisin of his grantor or devisor. In Comyn’s Digest, tit. Droit, C. 3, the preceding case of Dally v. King, is stated and the editor, Mr. Kyd, add s to it this note : “ Hence it follows, that if the devisee under the will, or his representatives, let the time limited for an ejectment escape, they can have no remedy.” Lord Redesdale, in Saunders v. Lord Annesley, 2 Sch. & Lef. 104, says: “ A writ of wright does not lie for a devisee.”

In the celebrated case of Cholmendeley v. Clinton and others, 2 Merivale, 255, 273,304 and 329, it was conceded by all the counsel, and they were the most eminent in Westminster Hall, that a devisee could not maintain a writ of right except upon his own seisin. Sir Samuel Romilly says; “ Mrs. Darner, the devisee, could unquestionably maintain no action but an action of ejectment.” Mr. Bell says: “ It is perfectly clear that a devisee cannot bring a writ of right. The only remedy Mrs. Damer could have, would be by ejectment, and if that is not'brought in 20 years, there is an end of it.” Mr. Preston, says: “ This is a case in which we must treat Mrs. Dammer as the only plaintiff, and it is an acknowledged principle of law, that a devisee cannot maintain a real action till actual seisin.” Mr. Leach, the opposite counsel, conceded such to be the law.

The precedents are all believed to be against the action in this form: none of them with the exception of Dally v. King, 1 H. Bl. 1, 10 Went. 213, in which the judgment was arrested, count upon the seisin of the testator of the demandant. 3 Chitty’s PI. 635.

I must confess I do not see any satisfactory reason or principle to sustain this discrimination between an heir and devisee in relation to this action. The seisin of the ancestor, it is true descends by mere operation of law upon the heir, and be- . comes his seisin. It is but a continuance of the same estate; but whether it descends by force of the common law, or is transmitted by force of the statute of wills, would seem to create no substantial difference in the relation subsisting between the original and the subsequent owner. The privity between a testator and a devisee is in many respects, in a legal point of view, as intimate and operative as that between an ancestor and an heir; and if an heir can avail himself, in order to sustain a writ of right of the seisin of his ancestor, 1 do not perceive why a devisee should not be allowed to count upon the seisin of his testator. But such appears to have been the long established, and as far as I have discovered, the unquestioned doctrine in England; and there is no evidence of its ever having been questioned here. We are therefore bound to consider it the law. The case of Green v. Liter and others, 8 Cranch, 246, has no bearing upon this question. ,

This doctrine can have no connection with the question so much discussed in Varick v. Bacon, 7 Cowen, 238,2 Wendell, 166, S. C. as the power of a testator to devise lands not in his possession, but held adversely at the time: for in the cases which have been cited, the validity of the devise was not questioned: on the contrary, it was conceded ; for it is said in all the cases, that the devisee might have recovered in ejectment, if he had not suffered the statute to run against him. This admits the validity of the devise, and that it conferred a good possessory title.

There is no question that a devisee, is, in law, a purchaser, as much so as is a grantee. Real estates are acquired only by descent or by purchase. 2 Black. Comm. 201 241. Coke Lit. 18, b. The demandant here claims as devisee, and not as heir, and alleges seisin in his testator only, and not in himself—the count is therefore bad; and the defendant must have judgment on the demurrer, with leave, however, to the demandant to amend, on the usual terms. 1 Cowen, 1.  