Carroll v. Norwood's heirs , 5 H. & J. 155 ( 1820 )

Chase, Ch. J.

delivered the opinion of the court. It has been conceded in the argument, that the facts and circumstances stated in the first bill of exceptions, constitute a sufficient foundation for the jury’s presuming a grant to the sons of John Israel, independent and exclusive of the fact, that a grant had issued to John Israel, the father, after his death, which fact, it has been contended, repels and precludes the presumption, on the ground that all the facts and circumstances originated from that source, and are in such manner to be accounted for. The grant which issued to John Israel was void tib initio, there being no grantee, John Israel being dead. The grant had no operation or efficacy in law, and consequently no estate or interest was or could be acquired under it. It was a mere nullity, and none of the facts or circumstances in the case could spring from it. There is a plain distinction between a void grant or conveyance and a defective deed, and on that ground the case of Keen, on the demise of the Earl of Portsmouth et. al. vs. The Earl of Effingham, 2 Strange, 1267, is distinguishable from the present. A void grant is no grant, and proves nothing. A defective conveyance may be good for some purposes, and legally inefficacious for others. In the case in Strange, although deeds were made ánd enrolled for the purpose of making a tenant to the praecipe, yet proper parties did not join; that is, the person who had the life estate did not join iii them. The uses declared were warranted and Well created. The deeds were éífectual for the purpose of declaring the uses of the recoveries, and they were also made for the purpose of making proper parties. These deeds were part of the recoveries and the foundation of them, and supposed to be effectual', but the tenant for life not joining in them, they were defective; and if the court had directed the jury to presume proper deed's; the direction would have been repugnant to the deeds appearing, and would also have concluded the interest of the tenant for life. In the case in question no grant exists. John Israel, the father, in virtue of his certificate of survey, and payment of the composition money, acquired an équitable interest in the tract of land called The Enlargement, which by his will was transmitted to his three sons. It is stated; in the case; that the lessors of the plaintiff, and thoáe under whont they claim, have been in possession of The Enlargement fever since the date of the will of John Israel, (13th of1 January 1723,) undér the title derived from the said wilt. Every fact in the case, on which, the direction to the jury was prayed, existed independent of thé void grant which issued to John Israel, and at the time it did issue the three sons were entitled to it, and not John Israel, who was dead. Here then is a clear1 equitable titlé shown in the sons of John Israel, and deduced from them to the lessors of the plaintiff, and a possession held in conformity thereto from 1723, until within ten years before the institutibii of this ejectment. The court are of opinion, that the opinion expressed hy the cbiirt below, in the first bill of exceptions, be affirmed.

It does not appear by the facts stated in the second bill of exceptions that there is any evidence of a title deduced to the lessors of the plaintiff in the land in question. The deed from John L. Israel to Tastier cannot operate as a feoffmfent, for want of finding livery of seizin. It cannot operate as a release to enlarge the estáte, for want of an estate, in law in the releasee at the time of the execution of the said deed. It cannot operate ás a deed of bargain and sale, enrolled under the decree of the court of chancery, the case not stating that Edward Norwood, the father of tbe defendants, at the time he obtained his deed, had notice of the deed from John L. Israel to B. Tasker. The court are of opinion, that the opinion expressed by the court below, in the second hill of exceptions, be reversed.

In expressing an opinion on the third MU of exceptions, the court will endeavour to state their ideas in ps concise and plain a manner as possible, as tq the grounds and prin-. ciples of the law in relation to the true location of trapt§ pf land in this state, It is the unquestionable right and jurisdiction of the courts to decide on the construction of grants and deeds, as well as to the description of the lapd which is to be transferred, as the quality and nature of the estate, subject only to the exception of the case of q latent ambiguity. The location must correspond with, and be in conformity to, the true construction of the grant as declared by the court. , In construing grants the courts are to re* gar.d, and to be governed by, the intention of the parties, to be collected from the deed, if not incompatible with, some rule or principle of law, and nothing extrinsic of de hors the deed is to be recurred to for ascertaining such intention, unless in the pase of a latent ambiguity. If there is a call in the grant and course and distance, and' they do not agree, the call is to be gratified if it is imperative or peremptory, and the course and distance are to be rejected, and the line is to be elongated or shortened to bring it to the call. It is the exclusive right and province of the jury to ascertain and fix calls according to the evidence legally admissible for that purpose, and the calls being ascertained, the lines must run accordingly, and will bp controled thereby, if the course and distance do not correspond with such calls. To show the true position of q tree, head of a creek, pr line of a tract of land called for, recourse is often Jiad to the relative situation of contiguous trqcts, and various other circumstances, having the tendency to identify the call. There certainly can be no distinction between a line of a tract of land called for, and any natural or artificial bound ary j they are all the subjects of proof, and when ascertained by the jury, are equally to be regarded, anfl the course and distance are to be governed by them, if the call is imperative. The reason which induced the courts, 'in construing grants, to give a preference to the location according to calls was, because such construction was most beneficial to the grantep in giving him more land, and that principle having been adopted, has been generally adhered to, although in some few cases if might’ operate to the dis' advantage of the grantee. Almost all locations, where there are calls as well as course and distance! are locations with a double aspect, because the course and distance seldom, if ever, agree with the calls.. If that reason was to govern the courts in their decisions, the consequence would' be, the transferring the power and jurisdiction of the courts to the jury in the exposition of grants, and the greatest uncertainty would prevail, and the greatest evils would result from it—contradictory determinations, without any power tp. control them. It is admitted that the calls in this case are imperative; indeed there can be no doubt about it; and. being peremptory, they must be complied with, and the course and distance must be controlad by them.

A procedendo being awarded, the cause was remitted to the county court for a new trial. After it was so remitted, the deaths of both the original defendants were suggested! and the heirs of EdwardNorwood appeared and were made defendants. The deaths of Nicholas Carroll, Robert Carter, Abraham Van Bibber, and William Smith, four of the lessors of the plaintiff, were also suggested; and it seems, by the bill of exceptions, although not so stated in the record, that Washington Van Bibber was made a party lessor in the place of Abraham Van Bibber. ' ■ '

^ the lleW ^le cause ^11 the County COUl't, in September 181’7, the plaintiff read in evidence the certificate. hf su rtrey °f a tract of land called Roper’s Increase surveyed for Tfomas Roper onthe 20th of October 1667, and the grant of a tract called The Enlargement, for which this action was brought, granted to John Israel' on the 10th of July 1724, for 100 acres.’ He also gave in evidence, that said two tracts were p ply located by bim on the plots. And it was admitted by the parties, that the whole of said two tracts came by sundry mesne conveyances, and the .will of the said John Israel, their father, to, and were legally vested in, John Lacón i 7 . 7 ° J ■ rael, Gilbert Talbot Israel, and Robert Israel, in equal por- * i previous to the 1 ,, „„ of 7 r iions, in fee simple, as tenants in common, year 1751, except two tracts of 100 acres each, parts Tates his Forbearance, which had before that time been legaily vested, in fee simple, one in Joshua Sewell, and the other in Robert Chapman, by two several deeds from «/o/jn "Tale, which are located by' the plaintiff on the plots, and which he offered evidence to prove were truly located. further gave in evidence a deed from J. L. Israel to George Buchanan, for 150 acres, part of the tract called Tates his Forbearance, dated the 7th of July 1731; and dence that said deed was truly located by him on the plots, J r rT1 r 7 \ He also read m evidence a aeed írom G. I. Israel, ana a . ■ .. certain Charles iiidgehu dated the 26th oí June 1732, to ° 07 Charles Carroll, surgeon, of and for all the said G. T. r 7 ® 7 raePs part of the tracts of land called Yates his Forbear-X anee, and The Enlargement-, and a deed from C. Carroll, surgeon, to Benjamin Tasker, Daniel Bylany, Charles Carroll, of Jlnnapolis, and Daniel Carroll, of Buddington Ma- > of the land so conveyed to him by G. T. Israel, dated the He also gave in evidence, some time after the execution of the deed last mentioned, and before the 26th of August 1743, C. Carroll, of ,. . , _ -«Ti dmgton Manor, m the last mentioned deed named, died, and that all'his right and interest under said last mention- ° t . ed deed, to the lands therein mentioned, descended to Daniel Carroll, his eidest sen and heir at law, and his heirs. ft or, of and for four undivided fifth parts, one fifth to each, of the land so conveyed t 25th of'September 1733. He also read in evidence a deed from R. Israel to C. Carroll, of Annapolis, purporting to be for the use of ■and of C. Carroll, surgeon, C. Carroll, son of Daniel, I). Dulany, and B. Tasker, dated the 26th of August 1743, for all the said R,TsraePs part ofilie landp called Enlarge-merit, and Tatés his Forbearance. ‘ ilc also 'read in eviSebee abend of conveyance 'from/. L. Israel to John ° - _ Hurd, for 100 acres ot land, part or the tract called Yates 7 1 his Forbearance, dated the 24th' of December 1730, and assignment of said bond to B. Tasker, dated the 25th í'ebrnáry 1745, and a deed from/. L. Israel" %o £. Tas purporting tobe for the use of himself and C. Carroll, Esq. of Annapolis, C. Carroll, surgeon, D. Dulany, and C. Carroll, son of Daniel, by the name of Charles Carroll, of Duddington, of and for the land mentioned and describ-. ed in said bond to Hurd, being all the residue and remainder of any or all the lands devised to him by his father, John Israel, except 151 acres conveyed to, G. Buchanan, which deed bears date on the 15th of June 1750, and was recorded by a decree of the chancellor on the 18th of December 1794. And the plaintiff and defendants admitted that the said deed must be so located as to lie entirely within the lines of Yates his Forbearance as truly located. And that all the undivided part, estate and interest, of C. Carroll, of Annapolis, in the said lands, or any of them, Under and by virtue of said deeds, or any of them, descended to, and became legally vested in, Charles Carroll, of Carrollton, one of the lessors of the plaintiff, and bis heirs;, and that all the undivided part, &c. of B. 'Tasker, in and to the said lands, or any of them, became legally vested, by sundry mesne conveyances, in Robert Carter, one of the lessors of the plaintiff, and his heirs; and that all the undivided part, &c.of<7. Carroll, of Duddington, in and to the said lands, or any of them, descended to, and became, legally vested in, Daniel Carroll of Duddington, one of the lessors of the plaintiff; and his heirs; and that all the undivided part, &c. of C. Carroll, surgeon, in and to the sard lands, or any of them, became vested, by sundry mesne conveyances, in Nicholas Carroll, one of the lessors of the plaintiff, and his heirs; and that said lessors, so far as they had any title to or estate in said lands, or any part of them, held the same as tenants in common at the time . of bringing this action. And the plaintiff, to prove that all the interest and estate of D. Dulany of- and in said lands, or any of'.hem, became vested, by sundry descents and mesne conveyances, in Abraham Vanbibber, Isaac Vanbibber, and William Smith, lessors of the plaintiff, and their heirs, and that they held the same as tenants in; common with each other, and with the other lessors of the. plaintiff, at the time of bringing this action, read in evidence the last will and testament of the said D. Dulany, dated the 26th February 1752, in which will no mention is made of the land in dispute, nor is there any residuary devise, which the plaintiff relied on as evidence that said ' Daniel Dü-, lany died intestate of said lands, and left Daniel Dulany, 'barrister, of Annapolis■, his eldest soñ and heir at law. And also a deed from Walter Dulany, in said will mentioned, bearing date the 26th of November 1759, to D. Dulany, barrister, in the said will mentioned, son of Daniel, of and for one moiety of the part of the said lands, to which D. Dulany, the father, had been entitled by virtue of the aforesaid deeds, or any of them. And also a deed from D. Dulany, barrister, son of Daniel, to said Walter, for one moiety of said lands, bearing date the Same day with the deed last above mentioned, but executed after it. [¡See these deeds recited in 1 Harr. Sf Johns. 170, 171.] And also a deed from D. Dulany, barrister, to his son Daniel Dulany, for the other moiety of said lands, 'which deed is dated on the 16th of September 1772. -He-also gave in evidence, that D. Dulany, (the third,) the grantee in the last mentioned deed,'‘being entitled under said deed to the said moiety, and possessed thereof, joined and 'adhered to the king of Great Britain in the war of the revolution, in the year 1777, whereby all his estate and interest of and in said moiety became confiscated to this state, and was, on the 4th day ofMay, 1785, sold by the intendant of the revenue of the state, claiming to act by authority of and according to law, to William Smith, one of the lessors of the plaintiff, Josias Carvill Hall, and Ayuila Hall; which said J. C. Hall and A. Hall, afterwards assigned and transferred their parts and interest, Under said sale, to said W. Smith, and I. Vanbibber, two of the lessors of the plaintiff, to which said W. Smith and I. Vanbibber, the chancellor of the state, claiming to act for and on behalf of the state, and by authority of law, conveyed the moiety last above mentioned, by two several deeds, one to W. Smith, bearing date on the 12th of December 1792, for four fifth parts of said moiety,- and the other to I. Van 'Bibber, bearing date the lltli of October 1792, for one fifth part of said moiety. He also gave evidence, that before the war of the revolution, and after the date of the above mentioned deed from D. Dulany, of Annapolis, barrister, to W. Dulany, his brother, the said W. Dulany died, leaving Daniel Dulany, his eldest son and heir at law, otherwise called Daniel Dulany, of Walter, to whom all the said Walter’s right, interest and estate, in the said land called The Enlargement, and Tates his Forbearance, being the right' demised as aforesaid from D. Du* tany, (the first,) in and to one undivided moiety of the one undivided fifth, part, which originally belonged as aforesaid to D. Dulany, (the first,) descended and became vested in him in fee simple; and that D. Dulany, soli Of Walter, during said war, adhered to arid joined the king of Great Britain against the United Slates of America, whereby his interest in said lands became and was confiscated to this staté) -arid was afterwards sold by the Intendant of the Revenue of the State, claiming to act by authority of law, to Abraham Van Bibber, one . of the original lessors of the plaintiff, and to Thomas Stone and Daniel of Saint Thomas Jenifer, whose rights under and by Virtue of said sale; were, afterwards legally transferred to A., Van Bibber, to whom the chancellor of the state, claiming to act for and on behalf of the State, and by authority of law, Conveyed the last mentioned moiety in fee simple, in and by two several deeds dated, one on the 5tli of February 1787, and the other the idth of September f-792, for one half o'f the said mpi¿ty^(a). He also gave in evidence, that W. Dvlány and D. Dulany, sons of the first named D. Dulany, and those claiming under them, were in the actual possession of the said undivided tenth parts held by their said father as above mentioned, holding the* Same under the title derived from their said father, as tenants in common, with C. Carroll of Annapolis, C. Carroll of Duddingtonj B. Tasker, and C. Carroll, surgeon, and those claiming under'them respectively, till they were turned out of possession, as hereinafter mentioned, by E. and S. Nor-wood. He also gave in evidence, that A. Van Bibber died on or about the 11th of June 1805, having first made and duly published his last will and testament in writing, by which he devised all his right, interest and estate, of and in the said undivided moiety of a fifth part, or undivided tenth part, to Washington Van Bibber, and his heirs, who hath since been made a party in this cause as the law directs^(b). The defendants then read in evidence.the patent of a tract of land called The United Friendship, granted to John Larkin, on the 1st of September 1687, for 700 acres; and a deed from the aforesaid J. L. Israel to- Edward Norwood, dated the 28th of March 1760, for a tráct of land called The Land of Goshen, another called Addition, and another called Cannon’s Delight-, “also all other rights, titles, interests, claims and demands, and unto any tracts or parcels of land devised to said J. L. Israel by his father’s will, or that as heir at law became the property of him the said /. L. Israel.” And gave in evidence that said patent and deed were truly located by the defendants on the plots in this cause. And also gave in evidence, which was admitted by the plaintiff, that É. and 8. Nor-wood, formerly defendants in this cause, were at the time of bringing this action, and long before, seized in fee, as tenants in common, of and in the tract of land called The United Friendship, and of and in all the estate, right, title and interest, in and to the lands called The Enlargement and Yates his Forbearance, which vested in the first mentioned E. Norwood undér the deed to him from J. L. Israel and that all the estate, title and interest, of E. and S. Nor-wood, the former defendants, in and to said lands, or any of them, hath passed to, and is now legally vested in, the present defendants in this cause. They also gave in evi - dence, which was admitted by the plaintiff, that a bill in ' chancery was filed by the lessors of the plaintiff against J. L. Israel, for ordering the recording of the deed from J. L. Israel to B. Tasker, and a decree thereon made, which is herein above set forth. They also read in evidence the act of assembly of 1815, chapter 147, which it is admitted was passed at the instance' of the lessors of the plaintiff, who then composed the Baltimore Company, hereinafter mentioned, which act, it was agreed, should be read from any of the printed copies of the acts of the general assembly of this state. They also gave in evidence, and it was admitted by the plaintiff, that a bill in chancery, since the institution of this Suit, was filed by a part of the lessors of the'plaintiff against the remaining lessors of the plaintiff, which parties were known by the name of The Baltimore Company, for a division of the lands held in common by them, upon which bill and proceedings thereon, a partition was decreed and made of the tract of land called Yates his Forbearance, in and by which decree and partition all that part of the said tract which, according to its true location, covers and includes any part of the tract called The Enlargement, as located by the plaintiff on the plots in this-'cause, was decreed and assigned to Washington Van Bib-her, in severalty. The plaintiff then gave in evidence, that the original lessors of the plaintiff, or those under whom they claim under and by virtue of the several deeds from J. L. Israel, G. T. Israel, and R. Israel, were, before the time of bringing this action, actually ousted and turned out by E. and S. Norwood, the original defendants in this cause, of and from all that part of the tract of land called The Enlargement, for which this action was brought, as located on the plots in this cause, which is included within the lines of the tract called Tates his Forbearance, as located by him on said plots, and held the same till the present time. He also gave in evidence, that at the time of the execution of the deed from J. L. Israel to E. Norwood, of the 28th of March 17"6,0, the said E. Nor-wood, the grantee, had -notice of the said deed’ of the 15th of June 1750, from J. L. Israel to B. Tasker, and others. He also gave in evidence, that at the time of making the several deeds from R. Israel to C. Carroll, Esquire, of Annapolis, and others, and from J. L. Israel to B. Tasker, Esquire, and others, the persons to whom, or for whose use the said deeds and each of them were severally executed, received actual possession and livery of seizin of and in the lands purported and intended to be conveyed in and by those deeds severally and respectively. And the evidence which he offered to. prove livery of seizin from J. L. Israel to Tasker, and others, consisted in this, that he produced the bond from J. L. Israel to Hurd, and the assignment thereof to B. Tasker, and company, and proved, that soon after the date of that bond, Hard was in possession of the land in said deed mentioned, and remained in possession till the time of the assignment, or some short time after, when he delivered the possession thereof to the agent of B. Tasker, C. Carroll, of Annapolis, C. Carroll, surgeon, G. Carroll, of Duddington, and I). Dulany, who, and those claiming under them as aforesaid, remained in the actual possession and occupancy of said land till the execution of the deed last mentioned, and from that time till they were turned out of possession by E. and S. Norwood as aforesaid,* and that E. Norwood, father of E. and S. Norwood-, lived on The United Friendship, in the neighbourhood of the land mentioned in said bond, and set up a claim thereto at the timé when possession was delivered to the agent as aforesaid, and from that time to the date of the deed of the 28th of March 1760, And the evidence which he offered to prove livery of seizin with the said deed from R. Israel to C. Carroll, of Annapolis, for the use of himself, and others, consisted in this, that he gave evidence to prove, that from the time of 'the execution of said deed the grantees, or the cestui que use therein mentioned, .and those claiming under them, down to the lessors of the plaintiff, were in possession of said land, claiming it under the title derived in manner aforesaid, from J. L. Israel, R. Israel and G. T. Israel, until they were turned out of possession by E. and S. Norwood in manner aforesaid. And the evidence which he offered to prove that at the time when the deed from J. L. Israel to ft. Norwood was made, the said Nonvood had notice of the deed from J. L. Israel to B. Tasker, for the use of himself, and others, consisted in the depositions heretofore taken and filed in this cause, and given in evidence by consent. The defendants then prayed the court for their direction to the jury, that under the evidence aforesaid, the plaintiff was not entitled to recover; which direction the court, ¡'Dorsey, Ch. J.] gave. The plaintiff excepted; and the verdict and judgment being, against him, he appealed ■^o this court.

*epaiaíeetldem res pits Ofo’fiamu nUtiie lBsorsfralSted “ail thenInland1,‘S* the terest6 hid ^'been tindivided portim

The court are of opinion, that the fifth, sixth and seventh lines of The United Friendship, must run with and bind on the’lines of the land of George Fates, and that the fourth' line of The United Friendship must be controled’ by the said fifth, sixth and seventh lines of said land, and terminate on the line of Fates’s land, wherever the jury may find it will strike the same by elongating or shortening the said fourth line. The court are of opinion, that the opinion expressed by the court below in the third bill of exceptions be reversed- ■

JUDGMENT REVERSED.

the whole, to a several ami entire interest m part—iíeia, Chat although the plaintiff can jre|MS ,h!>n Jl.e claims, yet it consist mturg. ™'e<l; HeIPdedy’dl“"du,"^iy |¡,V.etüuiV<imded a-°romety;SbnthS undivided claims Z'cnHreiv, nov an entirety «iwn he tiemanus an undivided pm'* non If an ejectment by the name of JS, 'vhith »? covered by another tj-aot J“^led A rec<,,ei?e de«is\°L’’med in 1750, under which the plain-^-.a “o,!S!ue &OT-¿ÜS “ÚÍtJ® «bií-g %• "lUhñ™!g ofllretl evidence, that iw>iuihetn.« ol tlniV execution, theg.annistheie. in numed, and thl’?e , {¡¡L,u1dll]“ft-r PO>Sl Sajen of whiXi ufe pilin' j? the 7>1 unuft’, were in po>sisajcn of the fund, caim{j¡c®weree]é“t¿a ¿redfrom»'tl>d, a^eilSe'iUx'afa have bee» extent-ed lo them by \heir íhll‘tír. f0,r the same laud, as 10 “d,"te ¡£¿"¿£.'“¡5 üii!í ‘“¡¡Ji “«S’ tal was not evidence of the land having been convcyed to them by the vecited deed? ’Vo recover in an action of ejectment, the lessors of the . plaintiff* must have a legal title in the land at the commencement and trial of 'the cause The cause was ai'gued in this court,- at this term, before JBuchanan, Earle and Johnson, J. Harper, for the appellants,

cited the act of 1785, ch. 72, ?. 11. Carroll’s lessee vs. Norwood, 1 Harr, Johns. 174, 175, 179. Norwood vs. Carroll’s lessee, ante__Griffith’s et al. lessee, vs. Moore, in the General Court May . term 1791. Runnington’s Eject. 227, 410. 1 Mod. 9,59. 5 Mod. S3. 2 Blk. Cam. 324. Gilb, Com. PL 104. Hob.. 5, and Moale vs. Howard;

Winder and Pinkney, for the appellees,

referred to 3 Bar,, Ab. tit. Feoffment, (A.) 145, (B: 2) 151. Ibid tit. Joint-tenants, Sfc. (L.) 708. Phill. Evid. 356, and Co. Litt. 273.

Johnson, J.

delivered the opinion of'the court. This was an action of ejectment brought to recover two tracts of land called Brown’s Adventure and The Enlargement. The plaintiff having made out no case for the recovery of Rrovm’s Adventure, the question was, whether he had a title to the whole of The Enlargement, or any part thereof, for which he was competent to recover in this action?

In the discussion of this case several points have been ably and ingeniously argued, on which it is not necessary for this court to form an opinion. The first was, whether two deeds, the one by Robert 'Israel to Charles Carroll, bearing date the 26th of August 1748, and the other from John L. Israel to Benjamin Tasker, dated the 15th of June 1750, under which deeds the plaintiff claims, could operate otherwise than as deeds of bargain and sale; and secondly, whether the recital contained in the deeds of in-1 denture between Walter Dulany and Daniel Dulany, and e converso, was evidence of the existence of the deed executed, purporting to have conveyed the land, so as to exclude their father from having died intestate as to that-land;--and yet, that the same' recital was not evidence ofthe land 'having been conveyed to them by the recited deed.

In the view the court has taken of this case, these points need not be determined. For if the plaintiff is incompetent to recover, supposing the deeds from the two Israel’s to pass the land, and to vest the legal estate therein in the manner contended for on the part of the plaintiff, and supposing the recital in the deed from Walter Dulany to be adequate to cause full efficacy to the deeds of partition between Daniel and Walter Dulany, still giving them such effect, the plaintiff cannot recover in this action; and as the opinion of the court below was in general, that on the facts as stated, the plaintiff had no right to recover, 'the judgment must be affirmed-

The lessors of the plaintiff derive their title to the land through the deeds from Robert and John L. Israel, and it is contended that those deeds passed the land to five persons equally in fee as tenants in common. The portion of the land that Daniel Dulany was entitled to, having become liable to confiscation, was sold as confiscated land to Jlbrat ham Van Bibber, one of the lessors of the plaintiff, wh’o having died pending the suit, on his death being suggested, his son Washington Van Bibber was made a party to the action.-

Pending the present action a bill was filed in the court of chancery, by part of the lessors of the plaintiff, against the rest of them, (all of the parties being known by the. name of The Baltimore Company;) and a decree was obtained, by which all that portion of The Enlargement, which was owned in common by the company, and comprehended in Yates Ms Forbearance, was vested in, severally in Washington Van Bibber. Subsequent to that partition, The Baltimore Company applied to the legislature, and obtained the passage of the act of 1815, ch 147, to vest in Henry W. Rogers, Samuel J. Bonaldson, and Thomas L. Emory, all the land which belonged to The Baltimore Company, and had been sold by them, but not conveyed, and all the land that their remained unsold and undivided, in trust, for them to give deeds to those to whom any land had been sold and not conveyed, on compliance with the terms of sale, and to lay off, sell and convey, the residue of the land for the benefit of the company. Had this act preceded .the application to the court of chancery for a partition, or before the partition took place, the whole of The Enlargement, in which the company had an interest, would have been transferred to the trustees, but as the division separated Washington Van Bibber’s part, it is unaffected by this act of the legislature.

’ It thus appearing, that all the lessors of the plaintiff had, before the trial of the cause, parted with their legal interest in the land, except Washington Van Bibber, and the nature of his interest being converted from an undivided portion in the whole, to a several and entire interest in part, the question is, was the plaintiff competent to recover?

. An action of ejectment, although in form a fiction, is in substance a remedy pointed out to him who has a right to land, of which he' is wrongfully deprived; it is the title of the lessor, and not of. the nominal lessee, that is to be decided. If pending the action the nominal lease expires, the term may be enlarged; if the lessor dies, his representatives are to be made parties. But if the cause was to ,depend on the validity of the nominal lease, the term could not be enlarged, nor could the cause be affected by the death of the lessor; and yet before the passage of a recent act of assembly (1801, ch. 74, s. 38,) the death of his lessor, (there being but one,) abated the suit, although the nominal lease had a long time to run. To recover iii'this action of ejectment, the lessors of the plaintiff must have a legal estate in the land at the commencement and trial of the cause, and therefore, as all the lessors had parted with their legal estates before the trial, except Washington Van Bibber, no recovery could be had, unless fop his portion, if it be com* petent to recover that in the present action. The declara». tion has no count on a demise claiming the entire part of any . ° ■* J Por^lon °f the laud5 and although in actions of ejectment the plaintiff can recover less than he claims, yet it must consist of the same nature with that claimed. If he claims 100 acres, less than 100 may be recovered; if he claims an. undivided moiety, an undivided third may be recovered, or any undivided portion less than a moiety; but he cannot recover an undivided part when he claims an entirely, nor an entirety when he demands an undivided portion.

JUDGMENT AFFIRMED.