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;
remainder 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-
tendment from the language of the clause in the will, was, that it was a
conveyance in fee to D.
Denn, ex 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.
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.
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 forfeiture 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 dower 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.
The court will not intend a disability. It lays with the party interested to
show it. Per Kent, J., in Jackson, ex dem. Gansevoort et al. v. Lunn, 109.
EJECTMENT.
I. 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
2. For Defendant—unaccepted request to be considered a ten-
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, ex dem. Potter v. Sissons, 510. See vol. 2, p. 321, 326, n. (a.)
1. Striking out demise of Deceased Lessor.
4. The demises of a lessor in ejectment, who was dead at the commence-
ment of the suit, struck out on motion.
Butler v. Deitz, 453. See vol. I, p. 392.
2. Effect of service of second.
5. The service of a second narr. on the tenant in ejectment, is a waiver of
the first, and proceedings on the first set aside.
Kemble v. Finch, 466. See vol. 1, p. 414.
V. Entry-when not necessary.
6. An actual entry not necessary in any case except to avoid a fine.
Jackson, ex dem. Bronk v. Crysler, 436. See vol. 1, p. 125.
1. For Plaintif.
a. Agreement for lease.
7. A verbal agreement to take a lease from the lessors not carried into exe -
cution, is not sufficient evidence of seisin.
Jackson, ex dem. Southampton v. Cooley, 492.
b. Acknowledgment of Defendant that land belonged to Lessor.
8. The written acknowledgment of the defendant that the land belonged to
lessor, is prima facie evidence of a right to recover; but such acknowledg-
ment may be explained, &c., by defendant, and shown to be founded in
mistake. Jackson, ex dem. Viely & Clark v. Cuerden, 519.
See vol. 2, p. 353, 355, n. (a.)
2. For Defendant—unaccepted request to be considered a tenant.
9. An offer or request to be considered, the tenant of the lessor not accepted
or answered, does not create a tenancy, or the relation of landlord and
.tenant, the defendant then and before holding under a different right.
Jackson, ex dem. Viely & Clark v. Cuerden, 519.
See vol. 2, p. 353, 355, n. (a.)
VII. Hab. Fac. Poss.
See Infra, X., New Trial.
VIII. Improvements.
See Supra, II.
10. In ejectment there can be no judgment by default against the tenant;
it must be against the casual ejector.
Van Alen v. Vischer, 468. See vol. 2, p. 106.
11. Where a landlord, in 1786, brought an action of ejectment against his ten-
ant, holding under a lease containing a clause of re-entry for non-payment
of rent, and recovered judgment against the casual ejector, by default, un-
der the statute, and possession was thereupon delivered to the landlord,
who executed a lease and gave possession to another person; and the ten-
ant under the first lease, afterwards brought an action of ejectment, in
1790, for the same premises, against the tenant under the second lease, it
was held, that the judgment by default was, prima facie, regular, and a
sufficient bar; and that the defendant was not obliged to show an affidavit,
or any of the prerequisites to a recovery, required by the statute. (Sess.
24, c. 36, s. 23.) Jackson, ex dem. Smith and others v. Wilson, 295, 566.
Cases and authorities, 297, n. (a.)
12. The plaintiff upon the evidence was entitled to a moiety only undivided,
but a general verdict was taken; a motion to set it aside on that ground
plaintiff ordered to take possession of the moiety only
Jackson, ex dem Moore v. Van Bergen, 426.
13. In ejectment the consent rule, new narr., common bail and plea, are
simultaneous acts, and if no plea be given, a default may be entered against
the casual ejector instanter, under the first rule. No new rule is requisite.
Woodward v. Quackenboss, 470. See vol. 2, p. 110.
XII. Recovery.
See Supra, II.
14. Unsettled lands cannot be proceeded against as for a vacant possession.
Saltonstal v. White, 443. See vol. 1, p. 221.
XIV. Verdict.
See Supra, X., New Trial.
I. Adverse not presumed.
II. Entry into part of a Tract.
1. Where the legal possession of lands was in the heirs of A. under a claim
of title, and a descent in 1752, and B. afterwards entered on the land, and
made improvement, and his possession was continued for 37 years; but it
did not appear that he entered under claim or color of title, or hostile to
the heirs of A., whose title was not disputed until after 1783, it was held
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