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preference to the sister of the whole blood: but in the case of a chattel lease outstanding, the possession of the tenant is the possession of the landlord; and there the rule of possessio fratris attaches. In this case it clearly appears that the children of Elizabeth Lemmon took estates tail under her will. But it also appears to me, if it were necessary to enter into that question, that the conveyance by Richard Lemmon one of the tenants in tail of his moiety to his sister having created a base fee, that estate so created was afterwards confirmed by the fine, which though not levied until after the death of the releasee was governed by the previous deed to lead the uses of it.

PER CURIAM. Verdict to be entered for the plaintiff for two thirds.

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DEBT on a bond, dated the 12th of November 1795, executed by John Milbourn Dixon, deceased, and Lucy Dixon, deceased. to John Bushby, deceased, in the penal sum of £360, conditioned for the payment of £180, with interest, at 43 per cent. on the 12th of November 1796. The first plea was Non est factum. The second Solvit ad diem. The third Solvit post diem. On which pleas respectively issues were joined, and found for the plaintiff. The last plea and issue thereon were as follows: that defendant ought not to be charged with the said debt, by virtue of the said supposed writing obligatory, because he, the said defendant, hath not, nor at the time of the exhibiting the bill of the said plaintiffs in this behalf, nor at any time before or since, had he any lands, tenements, or hereditaments by descent from the said John Milbourn Dixon, in fee simple; and this, &c., wherefore he prays judg ment if he, the said defendant, as heir of the said John Milbourn Dixon deceased, ought to be charged with the said debt by virtue of the said writing obligatory. Replication, that the defendant hath, and at the time of the exhibiting of the bill of the plaintiffs in this behalf, had sufficient lands, tenements, and hereditaments by descent from the said John Milbourn Dixon in fee simple, wherewith the said defendant could, and might, and ought to have satisfied the said debt above demanded. At the trial before Holroyd, J., at the Summer Assizes for Cumberland, 1823, a verdict was found for the plaintiffs on this last issue, subject to the opinion of the court on the following case. The obligor, Lucy Dixon, at the time of making her will, and also of her death as hereinafter mentioned, was seised in fee of the adjoining tenements of Catlowdy and Simeons Onset, being both of freehold tenure, and situate in the parish of Kirk Andrews upon Esk, in the county of

Cumberland; and by her will duly executed, devised her messuage or tenement, called Catlowdy, to her daughter Ann, the wife of John Milbourn, for her life with power to dispose thereof by will. Lucy Dixon died so seised, on the 15th of June 1797. At the time of making her will, and also of her death, both Catlowdy and Simeons Onset were occupied as one farm, being in the possession of the same person as tenant from year to year of the whole, under one rent; which person continued in possession as tenant until the year 1807. From the time of the death of Lucy Dixon, Ann Milbourn, and John Milbourn her husband, contending that Simeons Onset passed by this devise, received the rents of both estates during her life. Ann Milbourn died in 1801, and after her death, her husband John Milbourn received the rents and profits both of Catlowdy and Simeons Onset, as tenant by the curtesy until his death, which took place in June 1815. In 1807, the said John Milbourn granted a lease of the two tenements to John Forster and Adam Forster for nine years, under which the lessees held the possession, and paid the rent to John Milbourn during his life; the last rent which was paid by them to John Milbourn was at Whitsuntide 1815, and then due, which was subsequently to the death of John Milbourn Dixon, the other obligor, which took place on the 27th of April 1815. The obligor John Milbourn Dixon was the heir at law of Lucy Dixon, and he, in Hilary Vacation 1815, served a declaration in ejectment upon the tenant in possession of Simeons Onset, claiming it as heir at law of Lucy Dixon, but he died as before stated, on the 27th of April 1815, and no further proceedings took place therein. The defendant, after the death of his father, brought another ejectment, and after obtaining a judgment by default, recovered the possession of Simeons Onset in Trinity Vacation 1815. Afterwards one Isaac Milbourn, the son of the said Ann Milbourn, brought an ejectment for the same premises, which was defended by J. M. Dixon the present defendant, upon the trial of which a verdict was found for the defendant, and a rule nisi having been obtained to set aside that verdict, the Court of King's Bench upon argument discharged the rule, being of opinion that Simeons Onset did not pass either by the will of Lucy Dixon or of Ann Milbourn. The question for the opinion of the court is, whether the present defendant took Simeons Onset by descent from his father.

Patteson, for the plaintiff.

Tindal, contra.

ABBOTT, C. J. I am of opinion that the verdict on the last issue must be entered for the plaintiffs. It is clear that if the obligor was ever actually seised of the estate in question, for however short a time, the defendant takes it by descent from him. But the seisin of the obligor must be shown to have been a seisin in fact. That is also necessary to make a possessio fratis, so as to cause the descent of an estate to a sister of the whole blood, in preference to a brother of the half blood; and therefore whatever seisin suffices in the latter case will

suffice to charge the defendant in this action. Adverting to the doc

trine on this point in Co. Lit. 15 a, we find it laid down thus: "If the pass f

class.

father maketh a lease for years, and the lessee entereth, and dieth," the eldest son dieth during the term, before entry or receipt of rent, quardian the youngest son of the half blood shall not inherit, but the sister; vests estate because the possession of the lessee for years (and a tenant from year in heir. to year is to be considered a lessee for years for this purpose,) is the possession of the eldest son so as he is actually seised of the fee simple, Snotes in and consequently the sister of the whole blood is to be heir." This establishes that the possession of a tenant for years, being a rightful possession, is considered in law as the possession of the heir, and therefore gives him a seisin in fact. On the authority of this doctrine, which has been very often recognized in other cases, I think that we are bound to say that the obligor, J. M. Dixon, was for a time seised in fact of Simeons Onset, and consequently that the defendant had the land by descent from him, and is thereby rendered chargeable in this action.

BAYLEY, J. It is clear on which side the justice of this case lies, for as heir either of Lucy Dixon or of his father, the defendant is certainly liable to discharge this bond. But still we must see that he is properly charged as heir of his father, in order to give judgment for the plaintiffs in this action. It seems to me that the taking of the esplees by the tenant is a taking for the person seised of the freehold. In Ratcliffe's Case, 3 Co. 42, there is this passage relating to the doctrine of possessio fratris, "If the elder son enters, and by his own act hath gained the actual possession, or if the lands were leased for years, or in the hands of a guardian, and the lessee or guardian possess the land, there the possession of the lessee or guardian doth vest the actual fee and freehold in the elder brother." Where there is no one in possession at the death of the ancestor, there must be an actual entry by the heir to give him the seisin in fact. But when there is a tenant, his possession becomes that of the heir immediately on the death of the ancestor. The subsequent misconduct of the tenant in paying rent to another person, or the mistake of the heir as to his rights, cannot by relation alter the nature of the seisin which he before had. In this case, therefore, I am of opinion that the defendant took the land in question by descent from his father, and that the verdict on the last issue must be entered for the plaintiffs.

HOLROYD, J. I think that the defendant is liable to this action as heir of his father, having received lands by descent from him, bis father having been seised of them in fact. Lord Coke puts the two cases of a man dying seised of lands in his own possession, and of lands in the possession of a tenant for years. If he is in possession himself, the freehold descends on the heir, and he is immediately seised in law, but not in fact. In Co. Lit. 277 a, speaking of an abator, he says: "Abate is both an English and French word, and signifieth, in its proper sense, to diminish or take away; as

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here by his entry he diminisheth and taketh away the freehold in law descended to the heir." And again: "A disseisin is a wrongful putting out of him that is actually seised of a freehold. Ar abatement is when a man died seised of an estate of inheritance, and between the death and the entry of the heir an estranger doth interpose himself, and abate." So that if a man die seised of land in his own possession, and the heir does not enter, and a third person does, that which would have been a disseisin if the heir had entered, is an abatement. Again, in Co. Lit. 243 a, it is said, that if the ancestor leases for years, and dies, the possession of the lessee for years maketh an actual freehold in the eldest son. Thus, the case of an ancestor dying seised of lands in the possession of a tenant for years, is, in this respect, put on a different footing from his dying seised where there is no tenant; and in the former case the heir has such a seisin as renders the land descendible from him. And if there be an actual seisin in the heir, that will not be defeated ab initio by a subsequent neglect on his part to claim rent, or on the part of the tenant to pay it. The lessee was bound to pay rent to the lessor and his heirs, and therefore cannot be permitted to say that he took the esplees for any one else. The defendant in this case then must claim the land by descent from his father, the obligor, and is liable to be charged with the bond debt.

LITTLEDALE, J. I also am of opinion that the plaintiffs are entitled to recover on the third issue. If the obligor was ever actually seised, the defendant takes by descent from him. At the moment of Lucy Dixon's death, the obligor did become actually seised, for the possession of the tenant for years is the possession of the owner of the freehold. In the old entries of pleadings in real actions leases for years are never noticed; it is never said that the land descended from A. to B. subject to a term. In those days it was considered that the tenant was in the nature of a bailiff or servant, and therefore that he took the esplees for the benefit of the owner of the freehold. But stress has been laid on the fact of rent being paid to a third person. That, however, makes no difference. Although no rent was paid to the obligor, still at the moment of Lucy Dixon's death the possession of the tenant was the possession of her heir. He then became immediately seised in fact. It is immaterial to this question whether he was afterwards disseised or not, the land descended from him to the defendant, who is therefore liable to discharge the bond of his ancestor.

Judgment for the plaintiffs.1

1 Cf. Goodtitle v. Newman, 3 Wils. 516.
The English Law of Descent was changed by the St. of 3 & 4 Wm. IV. c. 106.
For the American Statutes of Descent, see Stimson, Am. Stats. §§ 3100-3155.

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