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its inherent strength, unaided by the law, if accompanied with continued possession, it would continue a good equitable estate ; and why should not the comprehensive words, “shall for ever give an unquestionable title against all,” be construed into a transmutation from an equitable into a legal title? How can any but a good legal title be denominated an unquestionable title? and why should not all comprise legal as well as equitable claimants? The opinion below supposes the signification of those terms to be circumscribed by the words “ during the estate.” But from this I must dissent, since these words do not necessarily convey that meaning, and are more properly applied to the distinction of estates into terms for years, estates for life, estates in fee, in tail, &c.; all which may be either legal or equitable. Neither can I acquiesce in that part of the opinion, which considers a discharge from the purchase money of the land, as a necessary consequence of giving effect to the seven years law, as agail'st the plaintiffs below in this cause; for the lien might continue, though a legal and absolute estate be vested in the defendants below. And, to prevent the operation of this law in favour of the possession, lést the claim for the purchase money should incidentally be barred, appears to be inverting the order of things; for, by the acts limiting suits on contracts, the suit for the purchase money might by possibility be barred; while the remedy to recover the land was still in full force, being of longer duration. The superior purpose of quieting estates of freehold, also would, under that , Vol. IX.

1824.

Kirk

v.

Smith.

doctrine, be controlied by the inferior one of enforcing open contracts, or implied covenants. While the most ordinary means of adjusting contracts for the sale of lands on credit remained in practice, there could be no danger, in giving credit on sales, of losing both land and money, as the Court supposes. But if that consequence did follow, non constat, but that the public interest, as well as private tranquillity, might have been promoted by it. .

To me it appears, that this seven years law has had a sovereign influence over the rights of property in that State. I have no doubt that it is under its influence the doctrine has grown up, that a possessor of the soil need not produce a patent to protect his freehold; as well as the doctrine, that those words which, on the face of the warrant, would seem a condition, shall not be held to produce n ore than a contract and a lien.

But if this se en years law did not quiet the possessic sf the defendants below, I confess I am at a loss to understand the principle upon which that effect is denied to the limitation act of 1785. Was their estate void or voidable, legal or equitable? In every point of view, the law appears to me to operate in their favour.

The opinion below is thus expressed: “ Possession, to create a bar by length of time, must be adverse, which it cannot be, if the defendant's entry was under a title derived from the plaintiffs.” That a possession, to sustain a bar under the act, must be adverse, is unquestionable. But when the Court comes, in the next member of the 1824.

Kirk

v. Smith

period, to explain what is meant by an adverse possession, we find the doctrine asserted, that a possession cannot be held adverse to the title of him from whom it is derived. This doctrine I hold to be altogether untenable; and this sentence alone, though every other idea be put out of the case, would, in my view of the subject, entitle the plaintiffs here to a reversal of the judgment. The title acquired by a vendee is most peculiarly adverse to that of him from whom he purchases.

But under what view of the subject could these plaintiffs be held mere tenants at will to the parties plaintiffs below? or their possession any other than an adverse possession? They did not hold as the agents or representatives of those through whom they derived the title. From the time of entering into possession, they held in virtue of the estate in themselves, and not that of any other. If the idea is, that the proprietaries might at any time have entered upon them, and in that sense, the estate was held at their will, the answer is, that is one of the very cases that the act of limitation provides against; for it takes away that volition in the proprietary, unless the entry be made in twenty-one years. But the fact was not so; these tenants did not hold at the will of the proprietaries, for all those who acquired under the conmon terms were taken under the care of the law, and we find act upon act to regulate the proceedings of the proprietary towards them. The right to turn them out by the shoulders never existed in the proprietary; he must have resorted to his entry, or suit, to recover possession; they were

1824.

Kirk

V.

Smith.

considered as holding a freehold, and the law did not entitle him to resume possession arbitrarily. It was the doctrine of that State, that his rights were restricted to the payment of the purchase money and quit-rents, at least until he tendered a return of advances and improvements. It cannot be imagined that the reservation of quit-rents converted the purchasers into tenants at will ; neither principle nor authority would sanction the idea. Nor can I perceive any thing either in the legal relations or contracts of these parties, that could sustain the doctrine that the possession of the defendants was permissive, and identified with that of the proprietary. A tenancy at will, must be the result of contract, express or implied.; but a freehold granted on condition, is not converted by forfeiture into a tenancy at will. Yet, had it been otherwise, surely lapse of time, general acquiescence, and received opinion, ought to be held to produce the same cansequences as to the tenure of property in this State, which were produced by the same causes in England upon the tenure by copy of court-roll. That which was in its origin nothing but a tenure at will, retains now nothing of its origin but the formula which attests its his. tory.

To conclurie · lct the estate of these defendants below be considered as either void or voidable, and I sec not how the act of limitations is to be escaped by their antagonist. If voidable, on failure to pay the purchase money, the entry is expressly taken away by that statute; and if void, they cannot be reduced lower than to the grade

1824.

Taylor

of tenants by sufferance, with regard to whom en try and suit was just as indispensable, as with regard to any other tenure. (Co. Lit. 57.) In the application of the doctrines on the statute of limitations, the incidents to the two tenures ought not to be confounded.

Mason

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R. B., being seised of lands in Maryland, made three instruments of

writing, each purporting to be his will. The first, dated in 1789, gave his whole estate to his nephew, J.T.M., after certain pecunjary legacies to his other nephews and nieces. In the second will, dated in 1800, the testator gave his whole real estate to J. T. M., during his life; and after his death, to his eldest son, A., in tail, on condition of his changing his name to A. Barnes, with remainder to the heirs of his nephew, J. T. M., lawfully begotten, for

ever, on their changing their surnames to Barnes. The third will, which was executed after the others, and probably in

1803, after some small bequests, proceeded thus: “I give the whole of my property, aster complying with that I have mentioned, to the male heirs of my nephew, J. T. M., lavofully begotten, for ever, agreeably to the law of England, which was the law of our State before the revolution, that is, the oldest male heir to take all, on the following terms: that the naine of the one that may have the right, at the age of twenty-one, with his consent, be changed to A. Barnes, by an act of public authority of the State, without any name 'added, together with his taking an oath, before he has

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