7 N.J.L. 180 | N.J. | 1824
The opinion of the court was delivered by
The lessors of the plaintiff claimed the premises in question, as heirs at law of Raudal Rickey, their father, who *died seized, and contested the legality of a sale of the premises made by the sheriff, under an execution against their father, Randal Rickey, after his decease. If the sale was valid, it, of course, destroyed the title of the heirs at law, aüd if not valid, their title must, of consequence prevail. All depends on the legality or illegality of the sále.
It is objected to it, in the first place, that the estate of the ancestor was of such a nature that it could not b'e seized and sold under the statute making' lands liable to be sold for the payment of debts. Randal Rickey claimed under a devise that was made t'o the widow “for and during her natural life, and after her decease to Randal Rickey, his heirs and assigns forever;” and under this devise he took a vested interest' in the remainder, a present fixed right of future enjoyment, depending on no dubious or uncertain event. The possession of the tenant of the particular estate is construed to be the possession of him in remainder, so that' the remainder man is held to be seized of his remainder.
*In the second place, it is objected, that the execution against Eandal Bickey was not, sealed till after his death, and therefore that it was void.
The last objection is, that the administrator committed a fraud in purchasing the real estate himself, seeing, he acted in the character of a trustee, and had assets of the personal estate wherewith he might have paid off this execution, without suffering the lands to be sacrificed at a sale by the sheriff. The answer which has been given to both branches of this objection seems to obviate them entirely. His being
Judgment for defendant.
See Watkins'¿Essay on Descents 40, where he says — “Though a person is said to be seized of a remainder or reversion expectant upon an estate of freehold, and such seizin is oiten styled a seizin in law; and so a seizin in deed and a seizin in law be supposed to exist together of the same estate; yetthis confusion seems to have arisen from the different acceptations in which the word seizin has been taken; and from using it in a general sense, when it should be taken in a strict or confined one; or in a confined one, when it should bo used in a general sense.
“ By the seizin of such reversioner or remainder man, is meant in reality, no more than that such reversioner continues, or that such remainder man is placed in the
•* But, on the other hand, when the seizin is divided into a seizin in deed and a seizin in law. we confine it merely to the present corporeal possession of the premises; not extending it to the future of an interest which is to come into actual enjovment on a future event. The seizin, not strictly in its technical sense, but in its primitive and vulgar acceptation, i. e. the corporeal or visible possession, must in the last case be really expectant upon, and postponed to the determination of the particular estate. And in this sense the reversioner cannot be seized, either in deed or in law.” See further, on this subject, p. 44, 46,47.
A remainder or reversioner expectant on an estate of freehold will admit of no mesne seizin while it continues in a course of descentand this principle presents a solution of the question, whether a remainder or reversion shall be subject to the debts of the mense remainder man or reversioner? In Robinson v. TonyeVAI3. Wins.) it is said of an advowson, that “ as it may be sold and comes to the heir by descent it is reasonable it should bo assets.” Now though a reversion or remainder on a freehold may be sold, yet it may not come to the heir by descent from the very person who contracted the debt; and therefore a distinction should be made between extending it in the debtor’s lifetime fas he has power over it) or in the handy of his devisee (as the remainder or reversion is devisable, and the devisee claims under him who contracts tlie debt) And it should seem that if judgment be had iu the debtor's lifetime, it will bind the property, though no execution be taken out till the property descend toothers. But where no judgment bo liad in the debtoi’s lifetime and the stock of descent bo not changed by such mesne, it should seem that the person faking such remainder by descent would wot be subject to the debts oí a mine- ' remainder man or reversioner: as he would not take by descent from him, but from the original donor, and so paramount the mesne’s charges. Watkins Ess. 140-1. Bro. Assets, Pl. 19. 1 Bro. Ch. Ca. 240, Marchioness of Tureedale v. Earl of Corentry.
See Center v. Billinghurst 1 Cowen’s Rep. 33. An execution tested after plaintiff’s death is irregular, but may be amended. It may be issued after his death, if tested before.