| U.S. Circuit Court for the District of Maine | May 15, 1841
This cause has been very well argued; but. upon the actual posture of tlie pleadings and evidence, we do not enter- j tain any doubt whatsoever, that our judgment j ought to be for the tenant. The writ- is a writ of entry, brought by the demandant, counting upon his own seisin within twenty years, as of a freehold; and upon the general issue of nul disseisin, the cause came on for trial. The title of the demandant may be shortly stated, as arising in this manner. Florentius Vassal (his ancestor) being on the 20th of September. 1777, seised of the demanded premises, made his will, and thereby devised the same to Lord Viscount Falmouth, Lord Viscount Barrington, and Citarles Spooner and their heirs upon certain trusts, viz. to the use of his son, Richard Vassal, and his assigns for life, and upon the determination of that life estate by forfeiture or otherwise, to the use of the trustees, during Richard’s life, to preserve contingent remainders, and, after the death of Richard, to the use of his sons, as tenants in. common, in tail male, with cross remainders among all the sons, if more than one; and upon default of such issue male, if any, and all of the sons, to William Dickenson and William Smith, and the survivor of them, his executors, administrators, and assigns, for a term of years, upon certain trusts, not necessary to be stated, and which are admitted to have been completely satisfied; with remainder, subject to the term, to Elizabeth Vassal, the then only daughter of Richard, for her life; remainder to the original trustees, Lord Falmouth, Lord Barrington, and Charles Spooner, to preserve contingent remainders; remainder to the sons of Elizabeth, as tenants in common, in tail male, with cross remainders; and upon failure of such male issue upon certain other limitations over. Richard Vassal died without leaving any issue male; and thereupon according to the terms of the will, Eliazbeth Vassal (now Lady Holland), his daughter, became entitled to a life estate. The demandant is her only surviving son, and of course is entitled, as heir in tail in remainder, subject to her life estate. Lady Holland by her deed in the ease, conveyed her fife estate in the premises to her son. Henry Webster; and he now claims title thereto under that deed in the present writ of entry.
In the first place, then, upon the posture of the facts, it is plain, that the deed of Lady Holland was wholly inoperative as a conveyance, because at the time of the execution thereof, Lady Holland was disseised of the premises; and, by the common law, which is our law, seisin is indispensable to the due validity and operation of such a deed of conveyance. But, then, it is said, that Lady Holland, in fact, never accepted the life estate in the premises under the will, but waived, or refused, or disclaimed the same; and that her acquiescence for so long a period, without asserting any right of entry or possession, is a sufficient proof thereof. We see no reason in the facts of the case, upon which such a conclusion can be legitimately founded. On the contrary, her deed to her son is cogent evidence, that she did assert her title under the will, and meant (although ineffectually in point of law) to convey that title by her deed to her son. We know of no rule of law, by which a
In the next place, if Lady Holland had renounced or disclaimed her title to the demanded premises under the devise, how could that help the demandant? The determination of her estate by such a renunciation or disclaimer, will amount to no more than a determination thereof in her lifetime, in the sense of the will. And what then would be the effect? It would vest the demanded premises in the trustees to preserve contingent remainders during her life, leaving the remainder in tail male to her issue; that is, leaving the demandant, Henry Webster, tenant in tail in remainder. There is no pretence to say that the trustees have renounced their trust estates. They, therefore, under such circumstances alone would now be entitled to maintain a writ of entry, for the recovery of the premises, founded upon their freehold. So that, in point of law, in either view, the present writ of entry brought by the demandant upon his own seisin of a supposed mere freehold, is entirely disproved by the facts; for the freehold is not in him, but in Lady Holland, or in the trastees. -
In the next and last place, (to view the case most favorably for the demandant, according to the argument,) if the life estate of Lady Holland could be treated as determined, or extinguished, and the estate of the trustees, to preserve contingent remainders, were mei'ged in the remainder vested in the demandant, there would still be a fatal objection to the present writ of entry, since it is founded upon the seisin of a mere freehold by the demandant; whereas, in point of fact, he would, if seised at all, be, under such circumstances, seised of a fee tail. The writ is not, therefore, supported by the evidence, or adapted to this case. A tenant in fee simple cannot maintain a writ of entry founded upon his supposed seisin of a freehold only; for he has no such estate separate from the entire fee. But he must declare according to the truth of the case upon his own seisin in fee simple. A tenant in fee tail is in a similar predicament. He is in no just sense seised of a freehold only; but of a fee tail. His appropriate remedy is by a writ of formedon; and not by a writ of entry, founded upon a mere freehold. The writ, therefore, varies from the title, and is not maintainable.
For these reasons we are of opinion, that judgment ought to pass for the tenant in this suit.