
    Doe ex dem. Stark v. Gildart et al.
    
    Whatever is set out in one bill of exceptions may be referred to in another bill in the same suit, and will be considered as of record.
    Where a party was in possession of land under a decree from chancery that he should pay a cortain sum of money in a given time, and that there should be a subsisting lien upon the lands to secure the payments, and he had been in quiet possession for twenty years from the time appointed for the payment, the presumption must be that the money was paid, and the title thereby rendered absolute.
    Where an execution was directed to be levied on property, of which the testator died seised, it was held that actual seisure was not necessary, but that constructive seisure was sufficient.
    IN ERROR from the circuit court of the county of Wilkinson.
    Trial at the October Term, 1840, before the Hon. Geo. Coalter.
    This was an action of ejectment, brought by Theodore Stark against Francis Gildart and George Morris, to recover a tract of land, situated in said county, called the Ashley tract, containing about seven hundred and two acres.
    The plaintiff offered as evidence of his title, a purchase at sheriff’s sale, by deed upon an execution from the High Court of Errors and Appeals, in favor of Stark, against the heirs of Francis Gildart, senior, for the sum of nineteen thousand five hundred and fourteen dollars and twenty-eight cents, " to be levied and collected from and out of the goods and chattels, lands and tenements of which the said Francis Gildart died seised and possessed.” The execution which issued on this decree, the levy, and sheriff’s deed to plaintiff, were also offered in evidence.
    The plaintiff further proved, that Francis Gildart went into actual possession of the land in 1813 or 1S14, shortly previous to his death, and that his heirs have continued to hold it ever since, by descent. It further appeared that Francis Gildart, the defendant, conveyed to Morris a part of said land, and described it in his deed as “ the Ashley place, which formerly belonged to the late Francis Gildart, deceased, containing about seven hundred acres, and being the share coming to the said Francis Gildart from the real estate of his father, Francis Gildart, deceased.”
    To rebut the proof of the seisen of Francis Gildart, the defendants offered in evidence a record of a suit in the Superior Court of Law and Equity, of Wilkinson county, on the equity side, between Augusta Foremau complainant, and Joseph Fore-mau, Administrator of W. G. Foremau; John B. Posey, Theodore Stark and Sophia Gildart, Executors of Francis Gildart, deceased, and all the heirs of Francis Gildart, deceased, by name were defendants. Augusta Foremau’s bill, stated that in 1810, she sold and conveyed to W. G. Foremau a tract of six hundred and forty acres of land, for six thousand and five hundred dollars, payable' on the first of June, 1814, and took a bond for the payment thereof. That W. G. Foremau took possession and the same year sold the same to John B. Posey, for five thousand dollars, payable in one, two, and three years, .with interest from date, and entered into covenants to convey to said Posey a full title at some future day; and delivered possession to Posey. That W. G. Foremau had died and his estate was insolvent. That complainant had no other security for her purchase money than the equitable lien of a vendor, to obtain the benefit of which she prayed.
    Posey’s answer admitted the complainant’s title to the land in the first instance, and sale by her to W. G. Foremau; but denied all knowledge of her equitable lien. Charges fraud in the sale’to him and seeks to rescind the contract.
    Augusta Foremau, under an order of court, filed an amended bill, in which the heirs and executors of Francis Gildart, deceased, were made defendants.
    The amended bill charged that John B. Posey had sold to Francis Gildart, Sen. the same tract of land, and delivered possession, and entered into articles to make title; which articles of agreement were made an exhibit, dated January 17,1814, and stipulated, in consideration of five thousand dollars to be paid as therein stipulated, to convey said land to said F. Gildart whenever he obtained a deed from the legal representatives of W. G. Foremau, or whenever a deed was decreed to him by a court of competent jurisdiction; and alledged that Gildart had died, and no part of the money had been paid by him, his executors or heirs.
    The joint answer of Sophia Gildart and Theodore Starke admitted the sale of the land to,F. Gildart, and the articles of agreement, and that said Gildart took possession, and died, having first made a will devising all his estate, and the profits thereof, to said Sophia for life; stated that she had had possession, and made valuable improvements to the amount of two thousand dollars; and prayed a conveyance of the land to her in fee, as she would be compelled to pay for the same out of her estate.
    The decree provided that S. Gildart and T. Starke, executors of F. Gildart, should pay 6687 dollars to Augusta Formau, in different sums at different times, with interest, &c.; and that Joseph Formau, administrator of W. G. Formau, a commissioner, should convey said land to Sophia Gildart, her heirs, &c., in trust, for the uses, &c. provided in the will of F. Gildart; and that the land should continue bound for the payment of the money, and in default of payment, should. be! sold for that purpose; and that the notes given by Gildart to Posey, for the purchase money of said land, should also be assigned to Augusta Formau, as collateral security for the payment of the money decreed to her.
    The defendants offefed in evidence the will of Francis Gildart, which devised all his property to his wife for life, and then to be equally divided among his children; which will was allowed to go to the jury, to which plaintiff excepted.
    Defendant, Morris, also gave in evidence a judgment and sale on execution in a suit of John S. Lewis against Robert S. Gildart, one of the heirs, and the return of the sheriff, and the deed from the sheriff to Morris of all the right, title and interest of said Robert S. Gildart to his proportion or undivided interest of the Ashley place. Plaintiff, excepted to this evidence.
    A deed from one Eggleston and wife was also introduced, by which they conveyed their interest in the land, and described it as one eighth part of the Ashley plantation, lately owned by F. Gildart, deceased. The wife was one of the heirs; and the object of the evidence was to show that the parties claimed by descent. The evidence was objected to.
    It further appeared that the land in controversy was purchased by Gildart about two years after the execution of his will. By his will, Gildart devised all his property to his wife, during her life? with power to give the children their share as they arrived at majority, if she chose to do so. But in case she elected to marry, then she was to receive her dower only, and the balance of the property to be .vested in trustees for the use of the children during their minority. The will was made in Tennessee; and contained further provis-ión, that in case he died before he should remove to Mississippi, his wife might dispose of his property, pay his debts, and remove in pursuance of his intent.
    Defendants asked the following instructions to the jury:
    1st. That if the jury believe F. Gildart, Sen., in his life time, was in possession of the land, under a contract for a purchase, by which a title was to be made when the purchase money was paid, which payment was to be made at a future day, and that the purchase money was not made by said Gildart in his life time, such possession does not amount to a seisin within the meaning of the decree under which the plaintiff claims, and the plaintiff is not entitled to recovered. If the jury believe, from the evidence, that the land was decreed to be conveyed to Sophia Gildart, her heirs and assigns, in trust, for the uses expressed in Francis GildarFs will, such title would not constitute a seisin and possession in F. Gildart, Sen. within the meaning of the decree under which the plaintiff claims, and the jury must find for the defendants.
    Sd. That if the jury believe, from the evidence, that Morris, one of the defendants, purchased a part of said land from the defendants in the decree under which the plaintiff claims, before said decree was rendered, and is now in possession of such part, and no more, they must find for him.
    The court charged as requested; and exceptions were taken by plaintiff.
    Plaintiff requested the court to charge the jury, that if they believe Francis Gildart, Sen. entered into possession under said contract, and that he and his heirs have remained in possession, claiming under said contract, for more than twenty years previous to the purchase by the plaintiff under the execution, the plaintiff thereby obtained a sufficient title to entitle him to recover against the defendants in said execution, and all persons claiming under said defendants.
    The court refused so to charge; but stated that the heirs of F. Gildart would be in as purchasers, and not by descent, in such a case. Plaintiff excepted.
    Winchester, for plaintiff in error.
    The questions, as to the admissibility of the chancery record and will of F. Gildart, for the purposes for which they were introduced by the defendants, and of the correctness of the charges given by the court on that evidence, turn upon the meaning of the decree for the sum of nineteen thousand five hundred and fourteen dollars and twenty-five hundredths, to be levied and collected from and out of the goods and chattels, lands and tenements of which Francis Gildart died seised and possessed.
    Is it the meaning of this decree, that no goods or chattels, or lands or tenements should be subjected to the payment of this debt, but such as Francis Gildart, Sen. in his life time had a complete legal title to. Or does it mean that any lands, which the heirs acquired either by devise or by descent from Francis Gil-dart, Sen. should be subject to the payment of this debt. That the .latter is the meaning, is too obvious for argument.
    It seems, that Francis Gildart, Senr. bought the land in his life time, and gave his notes for the purchase money, and took articles to make him a title. At his death, therefore, he was only seised and possessed of an equitable freehold estate in the land. He was not seised and possessed of a legal freehold estate. This estate, whether it was devised by the will (which it was not) or descended to the heirs, ripened, into a legal freehold estate, by twenty years peaceable possession under the equitable title held by Francis Gildart in his life time and by his heirs in possession as heirs claiming by descent. As such, was it not subject in the hands of the heirs or devisees to the payment of the debts of Francis Gil-dart, Senior ? Undoubtedly. The land was bought by Francis Gildart, Senior. He gave his notes for it, in his life time, and they were paid out of his estate after his death, and accordingly the decree of the chancery court is, that the land be conveyed to Sophia Gildart, in trust, “for the uses, intents, and purposes provided in the last will,” “ and in default of such provision, in trust for the right heirs.” There was a default of such provision in the will, for the will was made June 2d, 1812, and the land was acquired afterwards, to wit: 17th January, 1814, and of course did not pass by the will. But whether the land was derived by descent or by will, the heirs had no title to it but what they derived from their father. As such, they claimed it and possessed for twenty years, and as such they attempted to convey it away. As such it was clearly subject to the debts of their father. It was intended, then, by the decree, to subject it to this debt.
    It was error, therefore, to permit the defendants to introduce the record and will as proof that Francis Gildart, Senr. was not seised, to rebut the proofs upon which the plaintiff had rested his case, to wit: the possession of Francis Gildart, Senr. in his life time, and of his heirs claiming by descent for twenty years, and the purchase at sheriff’s sale upon execution levied under the decree of this court.
    It was equally error, after this evidence had been so introduced, to charge the jury, «that such possession does not amount to a seisen within the meaning of the decree under which the plaintiff claims and that the plaintiff is not entitled to recover.”
    The second charge is still more objectionable. It leaves it to the jury to say whether the land was conveyed to Sophia Gildart, in trust, for the uses of the will, or for the uses of the heirs, which is purely a question of law, and the court ought to have charged the jury that the will having'been made by Francis-Gildart, before he acquired any interest in the land, such interest did not pass by the will, but must pass by descent. And even if it had been devised by the will, it made no difference, though the judge below thought it would ; for if the land passing by descent would be real assets in the hands of the heirs, subject to the payment of the debts, it would be equally so if it had passed by devise.
    It may be said on the other side, that the personal estate being bequeathed to Mrs. Gildart, and the land being paid for out of that estate, the land belonged to her. In her answer, she set up such a claim. But the chancery court disregarded it in their decree; and very correctly, for the personal estate was bequeathed by the will subject to the payments of the debts; and the purchase money for this land was one of these debts which had to be paid out of the personal property, and it was only what remained after payment of debts, that was bequeathed to Mrs. Gildart.
    The court ought to have given the charge requested by plaintiff.
    As to the chancery record and will, the plaintiff might have introduced it as evidence of title in him, but he chose to rely on the title by descent to the heirs, as evidenced by a possession of twenty years by the father, and his heirs claiming under him, and it was not competent for defendants to introduce for him a title upon which he did not choose to rely, and which he did not believe to be his true title.
    jThe other remaining questions, are the admissibility of the record of the judgment and execution of Lewis v. R. S. Gildart, and of the deed from Davis, the sheriff; and the third charge given for defendant, Morris.
    As to the admissibility of the record and deed:
    The record was introduced to support the deed. But the record is a suit of John J. Lewis v. Robert S. Gildart. The return on the execution shows no levy or sale of the Ashley tract.
    The deed is for a sale upon executions at the suit of Samuel U. Lewis, John T. Lewis, Therells’ Administrators, et at. v. Robert S. Gildart. The record therefore does not support the deed.
    As to the last charge for defendant, Morris.
    Morris could acquire no title from the heirs of F. Gildart, Sen. which would not subject the land to the payment of the debts of F. Gildart, Sen. Lands in the possession of a purchaser from an heir, are as much assets subject, to the payment of the debts of the ancestor as they are while remaining in the hands of the heir. . The only question is, should Morris have been made a party to the decree by scire facias. If he had been a purchaser from an heir before suit was brought, then he ought to be made a party, and otherwise he would not be bound by the decree. But he is bound to take notice of lis pendens. As he purchased after suit brought, it was not necessary to make him a party. If the charge had been, that if Morris purchased before suit brought against the heirs, the land would not be bound, it would have been correct; but as it is, that if he purchased before the decree was rendered, the jury must find for him, it is erroneous. Because although he purchased before decree was rendered, yet if he purchased after suit commenced he would be bound by the decree, for during the pendency of a suit a party cannot sell out his interest in the subject in controversy, and thus compel the plaintiffs to bring in the purchasers as new parties. They are bound by notice of the lis pendens. The decree is against the estate of Francis Gildart, Sen’r., for a debt of the estate, and his estate is assets in the hands of heirs or purchasers, for the payment of the debts.
    It is also a well settled principle, that the defendants in an execution, and purchasers under them, cannot set up an outstanding title in a third person to defeat the title of a purchaser under such execution. This rule is founded on public policy and to prevent frauds.
    In ejectment, it is enough for plaintiff’s purpose if he show right of possession. If he prove twenty years possession or sei-zin of his ancestors and descent cast, it is in general sufficient prima facie, unless defendant show better title. Hylton v. Brown, 1 Wash. C. C. Reports, 305; 5 American Common Law Reports, 24.
    The rule excluding defendant against whom there has been a judgment and execution, from defeating the purchaser’s recovery of the possession by setting up a title in some third person, is founded in justice and policy, and applies equally where defendant has transferred possession to a third person. 10 John. Rep. 223; 3 Caine’s R. 188.
    ■ Possession acquired under authority of a judgment of law, a better presumptive right, than the preceding possession. 16 Johnson’s Reports, 314, 325; 4 Wash. C. C. Reports, 693. Prior possession alone. 5 Cowen, 520; Jackson v. Regster, 16 Johnson’s Reports, 314, 325.
    A Us pendens duly prosecuted, is notice to a purchaser so as to affect and bind his interest by the decree. Murray v. Bailley, l John. Ch. Rep. 565.
    Morris purchased while a suit was pending against the heirs, for a debt of the estate, for the payment of which the lands were assets, and he is bound by the decree, without being made a party. If he had purchased before suit commenced, it would have been necessary to make him a party.
    
      Montgomery, for defendant.
    If the court regard the bill of exceptions taken at a previous trial, as exhibiting the plaintiff’s title, then we insist the sheriff’s deed was not admissible, because it recites a decree of the supreme court of chancery, and does not recite the execution correctly, .and because it recites that the land levied on was the property of the defendants, (the heirs of F. Gildart,) when the decree and the execution only authorized the sale of the property of which Francis Gildart died seised and possessed.
    Again, was a seizin in Francis Gildart, senior, shown ?
    The proof that he was in possession in his life-time, and that his heirs had so continued ever since, is not sufficient evidence to establish a seizin; a color of title or a disseisen of the freehold of the previous possessor must be shown to create a seizin in Francis Gildart, senior. See 13 J. R. 537 ; 5 Cowen, 371.
    But if it be decided' that the possession of Gildart and his heirs is presumptive evidence of seizin, then that presumption has been fully rebutted by proof that F. Gildart entered under a contract for the purchase of the land, which constituted him a tenant at will to the vendor, and he could have no seizin until performance of the conditions of the covenant on his part. 6 John. Rep. 46 ; 13 lb. 235.
    Seizin is a technical term used to denote that completion of investiture by which the tenant was admitted into the tenure, and without which no freehold could be constituted or pass. 5 Cruise on Real Estate, 332, Mansfield’s Opinion.
    Livery of seizin was the mode of passing a freehold interest, and none but a freeholder ‘ could properly be said to be seised. Coke upon Lit. 48 a. and 48 h.\ 2 Bl. Com. 311, 313.
    
    The defendant produced the record of a case in chancery (in which all the heirs of Gildart, under whom plaintiff claims, and the plaintiff himself was a party,) to prove that Gildart was not seised of the land in question; to which defendant objected.
    Records are evidence in all cases between parties and privies. Norris’ Peake, 73. An answer in chancery is evidence. Ib. 80. All the proceedings must be read to show the connection and regularity. Ib. 97, 98.
    
      We object to the court noticing any portion of the record as giving evidence of the proceedings on the trial last had, other than the bill of exceptions which appear to have been taken on the last trial; from which it appears that the title in the defendants was fully proved by descent and ancient possession. The plaintiff has shown no title whatever, and the court is not at liberty to presume he proved any: nor to infer that such title was exhibited as appears to have been offered on a former trial. The reference in the bill of exceptions to documentary evidence, which appears in another part of the record, cannot make a bill of exceptions which was taken on a former trial a part of the record. See Barry v. Hale, 1 Howard, 315.
    The bill of exceptions must show it was taken at the trial. In this case the exceptions which show the title set up by plaintiffs was taken at a previous term of the court. We therefore object to their being considered any part of the record. Phillips v. Patterson, 1 How. R. 572.
    The first bill of exceptions was nothing more than an exception to the decision of the court admitting the record of the suit in chancery between Augusta Foremau and the heirs and executors of Francis Gildart and qthers; and the recital of the state of facts which the plaintiff had attempted to prove, and on which he rested his case, amounts to nothing. The only question raised on that bill of exceptions is, was the record properly admitted? Under the authority in Norris’ Peake, above recited, it certainly was. It was not only between the same parties, (though in different rights,)' but relates to the same subject matter. It would be evidence in any case between any parties claiming title to the premises under Francis Gildart, senior; but in the present case it was certainly proper evidence to show that Francis Gildart, senr. was only a tenant at will, and was not seised, as was contended by plaintiffs.
    The second bill of exceptions only applies to the admissibility of Francis Gildart’s will. This document might have been safely left out by the defendants; but its introduction was legally admissible, and it could not injure the right of the plaintiff. If F. Gildart, senior, had been seised of the land, the will devising it to his wife for life and to his children after him, could not defeat the right of the plaintiff to recover it.
    The third bill of exceptions attacks the propriety of admitting a judgment, execution and deed, under which Morris claims to hold a part of the land. As no reason was given in the court below for objecting to this record, it is not possible to conceive what principle of law will now be urged to induce the court to believe it was erroneously admitted.
    The fourth bill of exceptions is to the charges given by the court. These charges for the most part appear to have been mere abstract points of law ; but as this court has decided that it will reverse a judgment for an erroneous charge on an abstract point, we will endeavor to show these charges were correct, whether they applied to the case or not.
    To understand the first charge, we must take it for granted the plaintiff claimed title under a decree, conferring on him the real estate of which F. Gildart died siesed. The term seizin is but little understood. Its ancient use and signification will appear fully from the case cited in Cruise on Real Estate, and Coke upon Littleton. From which it can be very clearly gathered that it did not, and could not be applied to any less estate than a freehold : and in modern times it must be considered as a technical term, denoting the possession of a freehold interest. And in this case, if the court chooses to look into the decree under which the plaintiff claims, it will appear that the term was used to denote possession of a freehold of inheritance. From the authorities cited in 6 Johns. Rep. and 13 do. it will appear that the kind of title claimed or held by F. Gildart in his life time, only amounted to a tenancy at will; a naked licence to enter on the land, not a freehold interest.
    The kind of title held by F. Gildart is explained in the third page of our abstract as a part of the amended bill of Augusta Foremau; and the decree recited on the fourth page of our abstract, shows that the court regarded it as the only title of F. Gil-dart ; and the record in this suit does not show any other title in F. Gildart, sen. On examining fuese references, F. Gildart, sen. had only entered into possession on a contract of purchase, and the title was to be made at a future day, and was not made during his life. He therefore had not such a seizin as would cast the descent upon his heirs, and make him the root or stirpes. He had only obtained the possession and right of possession, but not the right of property. 2 Bl. Com. 198-99, 312.
    As to the second charge given, it is very clear that if Gildart, sen. was not seised in his life time, no title subsequently acquired by his heirs or executors could relate back so as to constitute a seizin in him, although such after acquired title was the result of the act of the ancestor.
    The precise meaning of the third charge which was refused, is not very clear: but it is manifest the court should not have given it, although his reason for not giving it seems inapplicable to the state of case supposed by the plaintiff, in the charge requested. It is certain if the ancestor Gildart entered under the contract, he could not be said to be seised, and no length of time could make the possession of his heirs amount to a seizin in him, or evidence of such seizin; for the contract spoken of in the charge, being a part of the bill of exceptions, shows that Gildart, sen. was not seised thereby; and the decree only authorized the sale of such land as the ancestor died seised and possessed of. The charge of the court, that Gildart’s heirs would be in as purchasers in such a case, sounds a little like nonsense: but as it is altogether inoffensive and states no principle which could mislead the jury, it constitutes no ground for reversing the decision.
    The fourth charge is equally free from objection. Admitting that Gildart died seised, the land descended to the heirs with full power of alienation; and the lien which a creditor has on the effects, lands, &c. of his deceased debtor, does not follow them into the hands of a bona fide purchaser without notice. The heir is (in case of alienation by him) liable personally to the creditor, to the value of assets descended. 20 John. Rep. 414. 7 Co wen Rep. 71.
    At common law, the heir who had aliened the land descended, by pleading “ nothing by descent” might discharge himself from the debt: but chancery would subject him to pay the value of the assets descended. Most of the states have passed statutes on the subject, as will be seen by the cases referred to. 2 Bibb’s Reports, 37S. 1 J. J. Marshall’s Reports, 349. 1 Marshall’s Reports, 386-8.
    At common law, the judgment was against the heir personally, in consideration of assets descended. 4 Bacon Abr. 171-72.
    Boyd, on the samo side.
   Mr. Chief Justice Shahkey

delivered the opinion of the court.

This was an action of ejectment brought by the plaintiff in error to recover a tract of land in Wilkinson county. On the trial four hills of exceptions were taken by the plaintiff’s counsel; the first, second, and third, to the admissibility of evidence offered by defendants, and the fourth to the charges given by the court to the jury.

The plaintiff’s testimony is not set out in either of these bills of exceptions, and it is therefore insisted that it is not properly before the court. It is true, that nothing which does not properly belong to the record will be noticed unless it be placed there by bill of exceptions, but the written evidence of the plaintiff is referred to in his bill of exceptions, as being set out in another bill of exceptions on a former trial. The whole of the proceedings on the former trial are set out in the record and are made to constitute a part of it, and every thing which has been properly placed there is before us. Whatever is set out in one bill of exceptions may be referred to in another, without again inserting it at length. It is then nothing more than referring to part of the record, and does not fall within the rule that whatever is not properly in the record, cannot be made so by mere reference to it in a bill of exceptions.

The plaintiff offered in evidence a decree of this court against the heirs of Francis Gildart, by which the money decreed to the plaintiff was directed to be levied out of the goods and chattels, lands and tenements of which Francis Gildart died seised and possessed. He also offered the execution which issued on this decree, the levy, and sheriff’s deed to the plaintiff for the land in question. He also proved by a witness that Francis Gildart went into actual possession of the land in 1813 or ’14, shortly before his death, and that his heirs have continued to hold it ever since, claiming by descent, and here closed his case.

To rebut the proof of seizin of Francis Gildart, the defendants introduced the record of a suit in chancery, instituted by Augusta Foremau against Joseph Foremau, administrator of Wm. Gordon Foremau, to enforce a vendor’s lien on land sold, without security for the purchase money. William G. Foremau, the purchaser from Augusta Foremau, had sold by written contract of sale to William B. Posey, who subsequently sold by written contract to Francis Gildart. In consequence of these sales, both Posey and Gildart’s heirs were made parties. The final decree directed that the land should be conveyed to Sophia Gildart, subject to the uses expressed in the will of Francis Gildart, and in default of any such trust, then to the right heirs of Francis Gildart. And it was also decreed that they should pay the purchase money to Augusta Foremau, and that the land should be held subject to a lien for the same. The decree was not, as has been urged, that title should be made on payment of the purchase money, but it was to be conveyed immediately, subject to the lien. The payment was therefore a condition subsequent and not precedent.

On an examination of the will of Gildart, set out in the second bill of exceptions, it will be seen that no such trust as that which seems to have been supposed by the decree to exist, is contained in it; consequently the land vested in his heirs in virtue of a contract of purchase made by him in his life time. The will was made long before the land was acquired.

The second bill of exceptions sets out the will of Francis Gil-dart, and the third was taken to the admission of an execution against R. S. Gildart, and a levy and sale, and sheriff’s deed. The judgment and execution were in favor of John S. Lewis. It does not appear by the return of the sheriff, what property was sold, and his deed to Morris, the purchaser, recites several executions. It however conveys R. S. Gildart’s portion of the Ashley tract of land, the same which is in controversy. A deed from Eggleston and wife was also introduced by which they conveyed their interest in the land, and describe it as one-eighth part of the Ashley plantation, lately owned by Francis Gildart, deceased. Eggles-ton’s wife was one of the heirs, and the object of this deed was to show that they claimed by descent.

Under this state of the case, the defendant’s counsel requested the court to charge the jury, “ that if they believed F. Gildart, Sen. in his life time, was in possession of the land under a contract for a purchase by which a title was to be made when the purchase money was paid, which payment was to be made at a future day, and that the purchase money was not paid by said Gildart in his life time, such possession does not amount to a sei-zin within the meaning of the decree under which the plaintiff claims, and they must find for the defendant;” which charge was given and excepted to.

The decree under which the plaintiff claims intended no doubt to subject all the property of Francis Gildart to the payment of the money thereby decreed to the plaintiff; and such a seizin as would make his property liable to other creditors, would be sufficient to justify the levy under this decree. An actual seizin is not necessary, a constructive seizin is sufficient. Francis Gildart made the purchase of Posey on the 17th of January, 1814. Posey was not bound to convey until the purchase money was paid. The payments were to be made, in five annual instalments, commencing in January, 1815, and ending in January, 1819. Gildart died in 1814, and in 1816 the decree in Chancery was made, by which the land was decreed to Gildart’s heirs, who were to pay Augusta Foremau the purchase money, and a lien on the land was preserved to secure the payment. The conditions in the contract between Stark and Posey were therefore superceded by the decree, long before the time had elapsed for performance. Hence there is no propriety for the application of the doctrine, that if a purchase be made on condition that the money shall be paid at a future day, and no title is to pass until payment, then the vendor may consider the contract at an end. The land in this case was confirmed to Gildart’s heirs by the decree, and not by virtue of the contract with Posey. Suppose then that Francis Gildart went into possession of the land in 1814, which was the date of his purchase, under an equitable title; this equitable title was confirmed by a decree rendered in 1816, and the legal title was to pass to Gildart’s heirs, he being then dead, subject to a defeasance. His heirs have continued in possession for upwards of twenty years, and a presumption now arises that the lien has been discharged and that the estate has become absolute; and it is surely a part of the estate of Francis Gildart, and liable to the payment of his debts. The defendants themselves have shown a title in their ancestor, and that they derive title by descent. He was in under an equitable title, which was afterwards perfected. The inception of a perfect title took place therefore in his lifetime, and when it was afterwards made complete the estate vested as though it had been made perfect in the first instance. If this view of the subject be correct, then the charge of the court was wrong. The charge was evidently based on the contract with Posey, which had been annulled as to its conditions by the decree in Chancery.

[ Correction. — The word seizin is erroneously printed “seisure” in the last paragraph of the syllabus of this case.]

The other charges given were predicated on the insufficiency of the seizin, and require no additional remarks.

The judgment must be reversed and the cause remanded.  