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Ill. Delivery ofwhat constitutes.

3. A deed for land executed and acknowledged by the grantor, but retained

by him by consent of parties as a security for the consideration, held not
to convey the title because there was no actual delivery nor acceptance of

the deed. Jackson, ex dem. M'Crea v. Dunlap, 433.
See vol. 1, p. 114, 116, n. (a), 253, n. (b.)

IV. Relation of, to previous Contract.
4. A deed in pursuance of a previous contract of sale, good by relation from

the time of the contract; so as to render valid every intermediate sale or
disposition by the grantee.

Jackson, ex dem. Loan Officers of Rensselaer v. Bull, 428.
See vol. 1, p. 81, 85, n. (a), 90, n. (a.)

V. Sheriff's Deed.

5. A subsequent deed from the sheriff will not help if such road was not

known at the time of the sale, and understood to be part of the premises

sold. Jackson, ex dem. Jones v. Striker, 451.
See vol. 1, p. 284, 286, n. (6.)

VI. Of land where an adverse possession.

6. By the common law, a conveyance of land by a person against whom

there is an adverse possession at the time, to a third person, is void ; but
the title of the grantor is not thereby extinguished or divested; nor will
such conveyance enure, by way of estoppel, for the benefit of the defend-
ant in possession. Jackson, ex dem. Jones v. Brinckerhof, 101, 540.

VII. Estoppel under.
7. A stranger or third person cannot avail himself of an estoppel by a mere
· writing or a matter in pais.
No person can be technically estopped by a conveyance under the statute of

usos. Jackson, ex dem. Jones v. Brinckerhoff, 101, 540.
Cases and authorities, 103, n. (a), 106, n. (a), (b) and (c.)

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DEMURRER.

Practice on Frivolous.
Motion to withdraw a frivolous demurrer, and to plead, on an affidavit of

merils, denied. Griswold v. Haskins, 432. See vol. 1, 135.

DEMURRER TO EVIDENCE.

On a demurrer to evidence, every fact which the jury could legally inser

from the eridence, is admitted by the demurrer.
Insurance on the cargo of a Prussian ship, froin New York to St. Andero in

Spain.
The order for insurance mentioned that the ship would have a clearance for

Hamburgh. In an action on the policy, the only evidence given at the
trial was the bill of lading and the protest of the captain, admitted by con-
sent. The former stated that the goods were shipped for Hamburgh, on
account of persons in Stettin ; and the captain stated, that the ship sailed
from New York, bound to Hamburgh, and that she continued in such in.
tended voyage, until being off Cape Ortegal, and meeting with contrary
winds, he resolved to put into St. Andero, as safer than to attempt to reach
Hamburgh, at that season, and while proceeding towards St. Andero, the
ship was capiured by the British and carried into Guernsey. On a demur.
rer to this evidence, it was held, that the vessel sailed on a voyage for
Hamburgh, and not for St. Andero, and that the policy not having at.
tached, the plaintiff could not recover, but was entitled only to a return of

premium. Forbes v. Church, 159, 548.
Cases and authorities, p. 160, n. (6.)

DEPOSITIONS DE BENE ESSE.

A deposition admitted to be read, which was taken de bene esse, on the same

day on which an order for that purpose was obtained, and notice thereof
given to the opposite party, under circumstances which did not admit of
delay, and were previously not known, and this before declaration filed, but
after the writ was returned. Mumford v. Church, 441. See vol. 1. p. 147.

See EvideNCE.

DEVIATION

See INSURANCE.

DEVISE.

I. Construclion of
11. Proof of

I. Construction of.

1. N. in August, 1778, devised land to his son William, for life, remainder to W.

the son of William, living at the time of the devise, for life, with remainder
to the first and every other son of the first son of William successively, in
tail male, with remainder to the second son of William, (then in esse,) with
remainder to his first and every other son, successively in tail male ; with
remainder to every other unborn son of William successively, in tail male ;
remainder to the first and every other unborn daughter of William succes-
sively, in tail male; remainder to the testator's second son Samuel for life ;
Temainder to the first and every other son of Samuel, successively, in tail
male ; with remainder to the testator's three daughters, in tail general, as
tenants in common; with remainder to the same three daughters, in fee ;

and devised to trustees to preserve contingent remainders.
The testator died 1st March, 1780, leaving issue two sons, William and Sam-

uel, and three daughters. William, the eldest son, entered under the will,
and died seised, in April, 1796, leaving two sons, William and Henry; and
William, the grandson of the testator, entered on the death of his father,
under the will, and died seised in June, 1799, leaving issue a daughter, and
his wife privement enseint, who was delivered of a son, also named William,
in October, 1799. It was held, that the posthumous son took the estate in
remainder, by the devise, in the same manner as if he had been born in the

life-time of his father. Steadfast, ex dem. Nicoll v. Nicoll, 18, 529.
2. Infant in ventre sa mere treated as a living child.
Cases and authorties, 29, n. (c.)
3. A. by his last will and testament, among other things, devised as follows :

“ And whereas I have conveyed to my son C., my lands at C., and to my
son D. my lands at F. I give and devise all my remaining lands and tene-
ments, and real estate whatsoever, to my sons C. and D. and my daugh-

ter,” &c.
It was held that the recital in the will was evidence of a conveyance of the

farm in F. to D. and that C. as heir of the testator, was estopped by the
recital, to deny that the farm was conveyed to D. and that the necessary in-
lendment from the language of the clause in the will, was, that it was a
conveyance in fee to D.

Denn, er dem. Colden v. Cornell, 174, 506, 547.
See cases and authorities on estoppel by recital, 178-1-5, n. (b.)
4. A devise to the use of another till Thomas shall be of age, to whom the

estate was previously devised, after the death of his mother, is not a
condition precedent to the vesting of the estate in Thomas. It vested on

the death of the mother. Jackson, ex dem. Beach v. Durland, 510.
See vol. 2, p. 314.

11. Proof of
5. A devise to a wife, her husband being a witness to the will, is void.
Jackson, ex dem. Beach v. Durland, 510. See vol. 2, p. 314.

See LIMITATION.

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I. In lands of Attainted Husband.
II. Of British Subject in lands of an Antenatus.

I. In lands of Attainted Husband.

1. Attainder of the husband, not a forseiture of the widow's dower.

Palmer v. Horton, 425. See vol. 1, p. 27.

II. Of British Subject in lands of an Antenatus.

2. In dower. The demandant had always been a British subject and resided

in Ireland; her husband an American before the revolution ; adjudged that
she may recover duwer on all the lands whereof her husband was seised
before the 4th July, 1776, and no other.

Kelly v. Harrison, 476. See vol. 2, p. 29.

DISABILITY.

The court will not intend a disability. st lays with the party interested to

show it. Per Kent, J., in Jackson, ex dem. Gansevoort et al. v. Lunn, 109.

EJECTMENT.

1. Actions by Co-parceners.
II. Action for mesne profits.
III. Title required to maintain.
IV. Declaration.

1. Striking out demise of Deceased Lessor.

2. Effect of service of second.
V. Entry-when not necessary.
VI. Evidence in.

1. For Plaintiff.

a. Agreement for lease.
b. Acknowledgment of Defendant that lands belonged to

Lessor.

2. For Defendantunaccepted request to be considered a ten-

ant.
VII. Hab. Fac. Poss.
VIII. Improvements.
IX. Judgment.

X. New Trial.
XI. Practice-Default.
XII. Recovery.
XIII. Vacant possession.
XIV. Verdict.

I. Action by Co-parceners.

1. Co-parceners may demise severally in ejectment. A mere servant or bailiff
in the possession of lands is not entitled to a notice to quit.

Jackson, ex dem. Fitzroy v. Sample, 449. See vol. 1, p. 231.

II. Action for mesne profits.

2. For mesne profits; nominal damages in ejectment no bar to this action.
The judgment in ejectment entitles the plaintiff to recover in this action from

the time of the demise laid.
No deduction from the damages for improvements made before the plaintiffs
title accrued. The remedy for them would be against the owners.

Van Alen v. Rogers, 457. See vol. 1, p. 281, 283, n. (b.)

III. Title required to maintain.

3. A grant to A. and B. for themselves and their associates, being friends,

&c., does not convey an estate at law to the associates, and their interests
cannot be noticed by this court.
Jackson, ez dem. Potter v. Sissons, 510. Seo vol. 2, p. 321, 326, R. (a.)

IV. Declaration.

1. Striking out demise of Deceased Lessor.
4. The demises of a lessor in ejectment, who was dead at the commenco-
ment of the suit, struck out on motion.

Butler y. Deitz, 453. See vol. I, p. 392.

2. Effect of service of second.
5. The service of a second narr. on the tenant in ejeciment, is a waiver of
the first, and proceedings on the first set aside.

Kemble v. Finch, 466. See yol. 1, p. 414.

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