
    Doe Lessee of Murra v. Northern.
    October Term, 1794.
    Verdicts — Findings Uncertain — Effect.—Verdict set aside, and a venire de novo awarded, the findings being uncertain and contradictors'.
    This was an ejectment brought in the District Court of Northumberland by the appellant, in which the jury found a special verdict, to the effect following, viz: That in 1666 the governor of Virginia, with the advice and consent of the counsel of state, granted the land in question to Thomas Freshwater, who afterwards assigned the patent to Robert Sisson, *who in 1698 devised the land to his grandson George Sisson in fee tail.
    That George Sisson m the year 1725, by deeds of lease and release, conveyed the' land in question to Edmund Northern, the father of the defendant, under whom the defendant claims, as heir or devisee, and that the said Edmund Northern was thereof seized and possessed.
    That in the year 1736 George Sisson sued forth a writ of ad quod damnum, and proceeded regularly to dock the intail of this land, after which he by deed of bargain and sale dated in 1737, and recorded as the law directs, conveyed the land in question to Tobias Purcell the ancestor of the plaintiff, who, by virtue of the said conveyance, entered, and was seised and possessed thereof at the time of his death, which was after the year 1747, when he, by his will, dated in 1761, devised the same to the lessor of the plaintiff.
    _That the defendant’s ancestor E. Northern was seised and possessed of the land in question after the year 1737, and that after his death, his son peaceably delivered up the possession to the ancestor of the plaintiff. That the guardian of the plaintiff was in possession of the land for many years, and continued so, till he was turned out by the defendants.
    The District Court gave judgment for the defendant, f„rom which this appeal was prayed.
    Washington for the appellant.
    The single question in this case is, whether George Sisson in 1736 could legally dock the intail, and convey to the ancestor of the plaintiff under the law of 1748, which permits a person seised of an estate in fee tail, to dock the same by a writ of ad quod damnum. It will be objected, that Sisson legallj" divested himself of the estate during his life by the deed of 1725, and consequently that he was not seised of an estate tail in 1736, so as to bar the same under the words, or under the meaning of the above mentioned law. In answer to this objection, I submit it, whether after so great a length of time, and under all the circumstances of this case the court will not presume a surrender by Sisson of his life estate, for the purpose of giving validity to the inquest and deed of 1736. In England, it is necessary for the tenant in tail, if he would suffer a common recovery, either to have a sufficient estate and power, to enable him to do it, by being tenant in tail in possession, or he must have the concurrence of the tenant of the freehold. The rule there is, that where a person has a *right to suffer a recovery omnia prassumuntur rite et solem niter acta, till the contrary appears; and a surrender of the life estate will be presumed, unless opposed by circumstances which contradict the presumption. 2 Str. 1267, 1129. So in the case of Bridges v. the duke of Chandos, 2 Burr. 1065, this principle is laid down, and fully explained. In the case from 2 Str. 1129, the presumption was rebutted by the production of an imperfect surrender. In the case from 2 Burr, the presumption was sufficiently contradicted: 1st, on account of the tenant in tail having other lands which he might bar, and upon which the recovery might operate, without resorting to presumption, in order to bar the estate tail, whereof he was not in possession. 2dly, because it was not fortified by proof of possession under the recovery. But the principle is fully established and admitted in both the cases. Now in the case under consideration, if the writ of ad quod damnum and inquisition did not operate upon the land in question, it could not operate at all, but was a nullity : No imperfect surrender appears; and seisin and possession is found in Sisson, by the inquisition taken at the time, and upon the premises. Possession is also found in Purcell, under the deed of bargain and sale founded upon the inquisition. Acquiescence on the part of the issue in tail appears: acquiescence on the part of Northern is found, by his son quietly delivering up the possession, and finally these circumstances are fortified by length of time. A stronger case for pre-sump cion cannot be imagined.
    Warden for the appellee.
    If the plaintiff’s title be in any part of it defective, it is sufficient for the tenant in possession, however destitute he may be himself of right. The objections to the plaintiff’s title are, 1st, that the patent found by the jury is not a complete one, not containing any of the formal parts of a deed, but is a mere skeleton. 2d, Prom the patentee it is transferred by assignment, which is not sufficient to convey a title to land; the law of 1748 declaring that no estate of inheritance in lands shall pass, alter, or change, from one to another, but by deed indented, &c.
    3dly, The inquisition is taken the 10th day of March in the year 1736, and the writ of ad quod damnum is dated the 3d day of March in the 10th year of the reign of Geo. the II, which is subsequent to the inquisition, and therefore it was taken without a writ to warrant it.
    4thly, The findings in the verdict are contradictory to each other. It is found that after 1725 and after 1737 Northern was seised, and yet it is found, that Purcell, after the deed to him - was seised and possessed during his life. Again — by the will of Purcell, the land is devised to his wife for life, who, the jury find, died in 1766; and yet that he guardian of the lessor of the plaintiff was turned out of possession in 1764.
    5thly, As to the point which has been anticipated, I think it too strong to be got over. By the deeds of lease and re-lease to Northern in 1725, which contains a warranty, the tenant in tail deprived himself of all interest in the premises, and, by discontinuing the estate tail, heno longer had any power under the law, to dock the intail, or to make the deed of 1737. The court will presume a great deal to support a recovery, which is a matter of record, and of course will be considered as having been rightly done, which they will not do, as to matters transacted in pais. This I consider as a full answer to the cases which have been cited.
    Washington in reply.
    As to the 1st and 2d objections, the case of Birch v. Alexander, (see ante 34) where these points were much contested, is a complete authority.
    3d objection. I have not time to examine whether Mr. Warden be accurate or not, in his calculation of dates; I am almost satisfied that he is not. But suppose it otherwise, I contend that any inaccuracy _ in this respect is supplied by the verdict, which finds, that a. writ issued, in hasc verba, that in obedience thereto an inquisition Was taken, and the deed recites both. Now the writ must in fact have issued before the inquisition was taken, and both must have existed before the deed.
    4th objection. If the verdict be so contradictory that no judgment could be rendered upon it, then the judgment of the District Court must be reversed, and a venire facias de novo awarded; a decision which I did not expect to hear pressed for by the counsel for the successful party below. But though it might be ray interest to consent to this, yet candor compels me to say, that I think the verdict may very well be reconciled, by the court’s presuming, what I have contended they ought, in order to support the deed of 1737, viz: that Purcell consented, that, if Northern would surrender his life estate, for the purpose of giving effect to the deed of 1737, he should enjoy the land during his life that Northern did so: in consequence of this, Sisson became seised again, (as the jury find he was,) and the intail being docked, Purcell became seised under the conveyance to him: after-wards Northern re-entered by courtesy, and held the possession during his life — and that his heir knowing all this, quietly delivered up the possession to Purcell the rightful owner. ' *These are the circumstances, which I rely upon, to aid the presumption arising from length of time.
    The principal part of the fifth objection has been before answered. The form of the deed to Northern is relied upon. It is of little consequence, what sort of conveyance was made, as to the point we are discussing. But if it were material, I would contend, that the deed of lease and release set forth in the record, is a statutory conveyance, as much so, as a deed of bargain and sale, and that therefore neither could work a discontinuance, nor pass a greater estate than Ihe grantor might lawfully part with. There might perhaps be a common law deed of lease and release at this day, but then the lease must not (as in this case,) be by bargain and sale, and recite that it is made for the purpose of enabling the lessee, under the statute of uses, to receive a release. As to the warranty, the jury have not found assets descended upon the issue in tail.
    I do not ask the court to presume any thing, so as to supply defects in the writ, or inquisition, but merely a fact done in pais as well in this case, as in that of a common recovery, viz. a surrender: so that the difference contended for, does not weaken the authorities cited.
   The PRESIDENT

delivered the opinion of the Court.

The question on the merits is, whether George Sisson’s deed of lease and release to Northern in 1725, prevented the operation of the writ of ad quod damnum in 1736, and his deed to Purcell in 1737. This may very much depend upon the actual seisin and possession of the parties; as to which, the findings are uncertain, and directly contradictory to each other.

1st, They find that George Sisson entered by virtue of his grandfather’s will in 1698, and was seised and possessed, and being so seised and possessed, did in 1736 sue out the writ, and in 1737 conveyed the land to Purcell. Afterwards they find, that in 1725 (an intervening period between 1698 and 1736) the same Sisson conveyed the same land to Northern, and that he was thereof seised and possessed, in contradiction to the former finding.

Again; they find that by virtue of the deed of 1737, Purcell entered, and was seised and possessed, and was so seised and possessed at his death in 1761. Afterwards it is stated that Northern was seised and possessed after 1737 and that his son after 1747 delivered up the possession to Purcell.

These might be reconciled by a strained construction, so as to avoid a contradiction, but the court do not think it right to *proceed to judgment upon so uncertain a verdict as to this fact.

The judgment of the District Court must be reversed for these reasons, and the cause remanded for a new trial.  