
    DEN ex dem. COZENS and ux. against COLSON and al.
    IN EJECTMENT.
    The cause was tried in Juné Term, 1810, before Eossell, J., at the Salem circuit. It appeared in evidence that William Dickinson, the father of Hannah Cozens, one of the lessors of the plaintiff, died intestate, some time previous to the year 1797; that [*] he left two sons, viz.: Smith and David, and one daughter, the said Hannah, now Plannah Cozens. It also appeared in evidence [642] that since the death of William Dickinson, his two sons, Smith and David, procured an order of the Orphans’ Court of Salem county, to divide the lands of the father; that commissioners were appointed, and the lands divided between the two sons, Smith'and David; that no part of the lands had.been allotted under this partition to Hannah; that Hannah Dickinson, widow of William Dickinson, and mother of the said Smith, David and Hannah, died in 1797, before which she, by will dated in March, 1797, devised to the said Hannah in fee, her lands in Salem county, in lieu of the said Hannah’s share in her father’s estate; which will contained this clause: — But if the said Hannah Dickinson shall, when she arrives at the age of 21 years, refuse to convey to her brothers, David and Smith, her right to her father’s land, then the plantation so left her, shall be divided as the law would direct, had no will been made. On the death of the mother, the guardian of Hannah took possession of the plaintation thus devised to her, and kept possession until she married Henry Cozens, the other lessor; that after the marriage, Cozens took possession, rented part, cut and sold wood, &e. There was also evidence given of the sale of the lands thus devised to Hannah by the mother, by order of the Orphan’s Court, for the payment of the debts of the mother. It was, however, contended, on the part of the defendants, that these sales were conclusive, and some evidence given to that effect. The counsel for the defendants, offered to prove that Smith Dickinson, since the partition between him and his brother David, had died, and devised to the lessors of the plaintiff, his whole estate, real and personal, including the share allotted to him of his father’s estate; and that they were in the actual possession thereof at the time of the trial, except such part as had been lawfully aliened; and that the [*] said Henry Cozens is an executor named in the will, and had proved the same. This will and evidence was objected to by the counsel for the plaintiff, and rejected by the judge, it being, in his opinion, inadmissible. That the other defendants are the children and heirs at law of David Dickinson, who had died since the partition of the estate between him and Smith, and were in the possession of the part allotted to their father, the said David Dickinson, by the commissioners appointed by the Orphan’s Court. This ejectment was brought to recover one-fifth of this part of the real estate of William Dickinson, the father of the lessor, Hannah, as heir at law to her father. There was a general verdict for the plaintiff. A rule had been obtained to show cause why the verdict should not be set aside, and a new trial awarded.
    
      L. H. Stookton, for the defendants.
    The verdict is against evidence. The partition made under the [643] order of the Orphans’ Court is conclusive of the right of the defendants. The order’, being a judicial act, is not void, but at most voidable. 7 Bao. 67, 2 Salk. 674, Colee Lit. 170, o. The Orphan’s Court had jurisdiction of the subject matter. Pat. 77. Besides, the lessors of the plaintiff have concluded themselves by accepting the devise of the mother, entering upon it, occupying and cutting the wood off of it, they have made their election; again, the eventual inheritance is not in controversy; Henry Cozens has a freehold in the premises in question; if he has concluded himself it is immaterial what the rights of the wife may eventually be; whatever' they are they may be hereafter asserted, notwithstanding a judgment for the defendants in this action, Lit. 256, Pat. 289, 1 Bao. 405; the will of Smith Dickinson, with the accompanying testimony, ought to have been admitted by the judge, to have shown that Henry Cozens entered on the lands of Smith Dickinson, devised to him and wife, part of which land being Smith’s dividend of his father’s estate, allotted him by the partition made under the direction of the Orphan’s Court; he acquiesced in [*] that partition, by entering on the land, and is now precluded from denying its legality. 4 Johns. Rep. Ufé.
    
    
      M’lhaine and Hunter, for plaintiff.
    Even if equitable considerations could have weight in an action of ejectment, which we deny, yet the equity is with us. The estate of the mother was swallowed up in the payment of her debts, i The division by order of the Orphans’ Court, was .between David and Smith. Hannah was no party to it. The right we pursue is unquestionably in Hannah; nor has she, or her husband, the other lessor of the plaintiff, done any act to estop them from recovery. It is not a case of election, but of condition; yet if it is to be considered as a case of election, the manner of election is pointed out in the devise of the mother; it is by a specific release.
   Pennington, J.

Can it be contended, that mere equitable circumstances can be set up in ejectment to defeat a legal title ?

Stockton, in reply. I do not contend that a mere equitable title can be set up as a defense in ejectment; but having a strict technical right, and having the equity of the case also, the court will feel no difficulty in supporting that right. The husband, in whom the present right is, by entering on the land allotted to Smith, has thereby sanctioned the partition, and is concluded by his own act from denying the legality of that partition.

Pennington, J.

Smith dies possessed of the share allotted to him, devising it to Cozens and wife. They enter under the devise. So far as it respects Smith’s own right, they have it under the devise; and so far as it respects the right of Hannah, on the entry of herself and husband, she is remitted to her ancient right. Nor is there any injustice in this operation of the law. The estate of the mother was given to Hannah, on the condition that she released to her brothers, her right [*] in her father’s estate. She refused to i’elease. The estate given to her is defeated. Let the heirs of David pursue the estate; if it has been fairly swallowed up in the payment of the mother’s debts, it is gone, and that rightly. If the sales have been collusive, there is a remedy. The brothers took a wrong course, and the defendants are pursuing it. The judge did right in rejecting the evidence, aixd the jury have done right in finding a verdict for the plaintiff.

Kirkpatrick, C. J.

I am clearly of opinion, that on the whole of this case, the plaintiff is entitled to judgment.

Rossell, J.

I have not changed my opinion as to rejecting the testimony; and am satisfied with the verdict.

Rule for a new trial refused, and judgment for plaintiff. 
      
      
        3 Blac. Com. 19.
      
     