Jones v. Jones , 2 H. & J. 281 ( 1806 )

Chase, Ch. J.

I am of opinion that the decree of the. Chancellor be affirmed-, with costs.

It is certainly an established principle, that the heir or-issue in tail claims the land per formam donr, and does-not derive his title to it from the tenant in tail, who in respect of said land is nothing more than the conduit pipe, through wjiich the title to the land is conducted to the issue in tail, whose claim to it is from the donor according, to the gift. The land of the heir, or. issue in tail, is not, liable to the debts of the tenant in tail, nor is he compellable to execute or fulfill any contract made by his ancestor for t,he sale or conveyance of said land. The issue in,' tail cannot be barred of his right,, but by fine, common recovery, or deed executed according to act. of assembly. The deed to bar him must be operative in the life-time of the tenant in tail, for immediately on his death the title of the issue attaches.. If the deed had been recorded wrjjunt, the six months, it would have operated by relation, from the date of the deed, and would have barred the issue in. the life-time of the tenant in tail,.

An estate tail is, not within the aqt of 1785, ch. 72, for recording deeds.. The petition must be filed against the, Ijeir, devisee, executor, or administrator of the grantor,, ^nd with respect to the land entailed, the heir or issue in tail is neither heir, devisee, executor or administrator.

I have shown he cannot be considered as heir. If the land was devised to him by the tenant in tail, he would, not take as devisee, but by a title paramount per formam, doni, which accrues eo instante of the death of the anees-; tor.

The case of- executor or. administrator can only relate to estates for years or an estate for the life or lives of others? from all which the conclusion is fair, and irresistible, that an estate tail is not comprehended within the act of 1785.

This question was decided by the judges of- the general court, on a reference to them by the chancellor, at May term 1794, in the case of Charles Ridgely, of William, against William M'Laughlin, (3 Harr, & M'Hen. 220.) which decision was adopted by)(the chancellor, acquiesced in by the parties,, and has since been considered as thq law,^

Tii.otíman, Buchanan and Nicholson, J. concurred. Gantt, J. dissented.

DECREE AFFIRMED.