The opinion of the court was delivered by
Gibson, C. J.
The authorities distinctly show that the feoffment and livery of a lunatic or madman, are not void but voidable, and that as they work a divesture of his seisin, they preclude the possibility of an escheat by his death, because seisin must be found by the inquest, as' well as a failure of heirs, devisees, or known kindred. His feoffee holds discharged, because an avoidance of the act would not restore the seisin of the lunatic, at the time of his death, which is essential toan escheat of his estate to the immediate lord of the fee. It is true that our property is allodial, and that *113escheats with us, take effect, not upon principles of tenure, but by force of our statutes to avoid the uncertainty and confusion, inseparable from the recognition of a title founded in priority of occupancy ; yet these statutes equally, and in terms, require the decedent to have been seized at his death. So far the argument made for the defendant in error, seems to be unassailable. The defect in it is, that it fails to prove the deed of bargain and sale, by which he holds, to be equivalent in all respects to a feoffment. It is not a feoffment in form or in fact, nor has it at all the qualities or consequences of one, as was determined in M‘Kee’s Lessee v. Pfouts, where it was not suffered to work a forfeiture like the feoffment of a tenant for life. But granting it, as it undoubtedly has by the express words of the statute, the force and effect of a feoffment and livery, for the purpose of “ giving possession and seisin, and making good the title and assurances,” yet in order to do so, it must be a deed; for the legislature .certainly never intended to impart the prescribed effect to an act in pais which should at the same time be a nullity. At common law the feoffment of a madman, as shown by the argument, is only voidable, but his deed is absolutely void; so, that unless we can infer a legislative design, to alter the common law in the latter particular, we must hold that his conveyance by bargain and sale is void, and unattended with the consequences attempted to be attributed to it. This design could be inferred, but from the' clause which gives a deed of bargain and sale, the force and effect of a feoffment in “makinggood the title and assurance.” But, in that aspect, it must, in M‘Kee’s Lessee v. Pfouts, have created a tortious fee in the grantee, and produced a forfeiture of the grantor’s life estate: a consequence which was denied to it. The obvious purpose of the provision was to dispense wdth actual investiture, without imparting to its substitute the feudal and almost inconceivable effect of displacing lawful estates and turning them to a mere right; or giving to it any quality or consequence beyond the one specified. The object was to give without the aid of feudal ceremonies, the legal seisin for lawful purposes. In treating the conveyance therefore, as an actual feoffment, which transferred the seisin without regard to the sanity of the grantor, the judge who tried the cause gave it an effect, never intended to be imparted to it. The capacity of the Commonwealth to contest its validity, was settled in Crawford v. The Commonwealth, 1 Watts, 484, where she was adjudged to be the ultima hceres; and succeeding as such to the rights and remedies of the heir and next of kin, she may, on the strictest principles of the common law, be let in to show the grantor’s insanity.
Judgment reversed, and a venire de novo awarded.