roffe, descended to his sister Hester Caverley, as co-heir in tail under the settlement of 1710, and is the subject of the first writ of error.

The reasons assigned on behalf of the lessors of the plaintiff, in the first writ of error, were as follow:

the lifetime of Hester, his ancestor, the recovery deed and recovery must be taken together, and construed as a common assurance, operating simply as a conveyance by George, to his own use, of the estate vested in him under the deed-poll; for unquestionably a tenant in fee, whether absolute or base, was competent to convey by recovery; and it was never apprehended, that, by adopting that mode of conveyance, he was estopped from alleging, at any time afterwards, that he had, subsequently to the recovery, become tenant of an estate in the land, other than the estate which he had at the time of the recovery. Fourthly, the doctrine, which attributes so conclusive an effect to the recovery, would go even to deny the capacity of George, after the death of Hester, when he became heir in tail in possession, to create a discontinuance by feoffment, or to acquire the absolute fee, by suffering another recovery, or by any means whatever to determine the base fee. Fifthly, the principle already stated, that where an assurance is opeestoppel, applies also to the recovery. Sixthly, as respects both assurances, (that is to say, the deed-poll and recovery), admitting that there might be an estoppel, yet estoppels operate only as between parties and privies, and there must be a person to be estopped as against another person entitled to the benefit of the estoppel; but, on the death of Hester, there ceased to be any person in whose favour the supposed estoppel could possibly operate. Seventhly, again, as respects both assurances, the plaintiff in error derives title under the issue in tail, who cannot be bound by estoppel; but to affirm that the plaintiff in error is precluded from alleging that George, on the death of Hester, became seised of an estate tail in possession, is in effect to bind the issue in tail by estoppel: and, as respects the recovery, when the defendant in error admits (as he is obliged to admit) that it is void as against the issue in tail, but at the same time insists, that by reason of such recovery the base fee must, in a contest between a claimant under that fee and a claimant under the estate tail, be deemed to have continued after the death of George, so as to prevent the claimant under the estate tail from recovering, the argument involves a manifest contradiction. Eighthly, nothing having been done to discontinue the estate tail, or take away the right of entry in respect of it, that right devolved, on the death of Hester, upon George, who, being then in the actual possession, was, by a necessary consequence of law, in of the estate tail, independently of the learning of remitter, properly such, which was applicable only where the estate tail had been divested and turned to a right to be asserted by a real action.

1. Because George Woodroffe, the testator of 1778, had not any devisable estate in the premises in question, other than an estate in reversion expectant on an estate tail, which was afterwards barred. 1. By the special verdict it is found, in substance and effect, that Hester Woodroffe, being seised of the tenements whereof an undivided moiety is now in question, for an estate tail in possession, did, in September, 1735, by deed-poll, convey the same tenements to George Woodroffe (her only son and heir apparent in tail) and his heirs; that George thereupon entered into possession; that in November, 1735, he (living Hester) by bargain and sale, inrolled, conveyed the same tenements to a tenant to the præcipe in a common recovery to be suffered by him, which recovery was suffered accordingly in Mi-rative, by passing an interest, it has no operation as an chaelmas Term, 1735, the use being declared in favour of himself in fee; that, in 1767, Hester died, leaving George her heir in tail; that, in 1779, George died, without having done any further or other act to affect the estate tail, the possession taken by him in 1735 having continued down to his death;-by necessary construction of law upon which facts, George died seised of the same tenements for an estate tail in possession, and consequently had not, at the time of making his will or of his death, any devisable estate or interest whatever therein, except the aforesaid reversion. 2. The estate tail not having been barred or discontinued by any act of Hester or her son George, the only ground upon which it has been or can be contended, that any estate or interest in the tenements in question passed by the will of George, is, that his entry under the deed-poll of 1735 was the acceptance of a base or determinable fee, and estopped him from asserting, either before or after the death of Hester, any other title; or that if his entry under the deed-poll did not produce that effect, yet the recovery suffered by him in 1735, though ineffectual to bar the estate tail, (George not being then tenant in tail), was an estoppel by matter of record, whereby he was precluded from setting up any claim to the estate tail; and that, according to either view, the base fee continued after his death. But each of these propositions has to contend with insuperable difficulties; for, first, as respects the deed-poll, (assuming that a deed, followed by entry under it, was capable of working an estoppel, but which the plaintiff in error does not admit), it discloses, upon the face of it, the actual state of the title, by reciting the deeds creating the entail, and the death of Robert, leaving George, the only son of Robert by Hester, and then proceeds, (erroneously, indeed, but not so as to affect the present argument), that, "by means thereof, and by virtue of the said settlement, the said tenements became and then were well vested in the said Hester Woodroffe for and during the term of her natural life, and that the immediate remainder thereof belonged to the said George Woodroffe, son of the said Robert and Hester;" so that the estoppel and conclusion, if any, would go to exclude any averment contrary to the allegation of the plaintiff in error, viz. that on and by the death of Hester, without more, the base fee absolutely determined. Secondly, the deed-poll shews, upon the face of it, that Hester was seised of an estate tail in possession, and consequently capable of passing, by way of ordinary conveyance, an estate founded upon ownership; and the argument of the defendant in error admits that it did actually pass a base fee; but it is clear law, that, where the instrument itself shews an interest in the conveying party, so as to render it sufficiently operative by way of conveyance, the doctrine of estoppel is excluded. Thirdly, as respects the recovery suffered by George in

2. Because, if the said George Woodroffe, the testator, had any such other devisable estate, such estate was not in existence when the action of ejectment was brought.

3. Because no act done or statement made, subsequently to the death of the said testator, could, at law, have the effect of bringing the premises in question under the operation of his will. Even assuming that the base fee continued after the death of Hester, and passed by the will of George, still, as the right of entry in respect of the estate tail was not taken away, that fee was determined by the entry of William Woodroffe in 1790, such entry being, by construction of law, an entry on behalf of himself and Ann Walker, as co-heirs in tail; for sect. 12 of stat. 3 & 4 Will. 4, c. 27, on which alone the defendant in error can found any answer to this argument, did not make any alteration, either prospective or retrospective, in the law, with respect to the effect of entry of a co-tenant for any purpose not within the purview of the act, but left the general doctrine as to its constructive operation wholly undisturbed; and if the entry of William admits of no other construction than that for which the plaintiff in error

does not affect to determine the character and consequences of an entry by one of several co-tenants. In answer to the other of the above propositions the plaintiff in error submits, first, that, as regards general principles, without some act on the part of William amounting to an ouster or denial of the title of the coheir, (and it is clear that his mere possession or receipt and retention of the rents of the entirety would not have that effect), the unity of the title of the coparceners was not disturbed; but the special verdiet furnishes no evidence of any such act ;-secondly, that, as regards the statute, the consequences which would obviously result from construing it as an ex post facto declaratory law, by which the aspect of titles resting upon transactions concluded at any antecedent period, however remote, by parties competent to bind all the interests, may be wholly changed, and that too in favour of third persons not claiming under the common title, demonstrate that such a construction was not within the contemplation of the Legislature, which, while studious to circumscribe the assertion of rights, could not have intended to restore rights which, independently of the effect of possession continuing at the time of passing the act, had, before the passing of the act, been destroyed by the acts and deeds of parties competent by such acts and deeds to bind all the interests; and, thirdly, that, assuming William to have gained, by the effect of his continued enjoyment of the moiety in question, a wrongful estate, that estate was not a continuance or an enlargement of the base fee alleged to have been devised by the will of George, but a new and substantive acquisition in fee-simple, which could not, without an actual conveyance by William, become subject to the limitations of the will of George, on which limitations the defendant in error founds his claim.“

contends, then the estate tail in the entirety was to all intents restored, and the defendant in error is reduced to confine his argument to the character and effect of the subsequent enjoyment. Now, though it is true, that, with respect to exclusive enjoyment by a co-tenant, the above enactment negatived, both prospectively and retrospectively, the presumption of the former law, yet it must be understood to have so done for the purpose only of limiting, as between co-tenants or those claiming under them, actions or suits concerning matters which, down to the period when the statute came into operation, continued to be litigable. But, in the present case, the contest is between a person claiming through both the co-heirs in tail, and a person claiming adversely to their common title; and moreover every possible question as to the state of the title, from the period of the entry by William in 1790, down to the arrangement in 1818, under which the then co-heiress in tail suffered a recovery of the moiety in question, was finally disposed of by that arrangement; or if, notwithstanding the relative position of the present litigant parties, and notwithstanding the transaction of 1818, the actual title in regard to that moiety can be considered as depending upon the nature of the enjoyment, as being adverse or non-adverse during the above interval, yet, were it adjudged to have been adverse, the result would then be, that William thereby acquired a wrongful fee, to which the plaintiff in error would now be entitled. To meet this, the defendant in error will be driven to contend, first, that, either on general principles of law, or having regard to the retrospective effect of the new Statute of Limitations, 3 & 4 Will. 4, c. 27, the entry of William was insufficient to determine the base fee in the moiety in question, the title to which moiety, therefore, continued to be referable to that fee; or, failing in this argument, secondly, that, either on general principles, or having regard to the retrospective effect of the above enactment, the continued possession of William was not the possession of his coparcener, and not only that the effect of such possession was to gain a wrongful fee in the moiety in question, but that the new fee so acquired became, by construction of law, impressed with the uses to which the will of George limited the base fee. In answer to the first of these propositions the plaintiff in error submits, first, that, as regards general principles of law, admitting that where an estate tail had been discontinued and turned to a right to be asserted by 1. Because, upon the facts stated in the special verformedon, the remitter (which operates independently dict, the lessors of the defendant in error are not, nor of entry) of the one co-heir in tail coming to the wrong-are or is any or either of them, entitled to recover any ful estate in the entirety, did not extend to the moiety of which he was in by a different and adverse title, and in respect of which the other co-heir might have had his formedon, yet that where, as in the present case, the right of entry in respect of the estate tail remained in full force, and the issue in tail had one and the same title to enter, the same reasoning does not apply; but the entry generally of the one coparcener was, as in the common case of a descent to coparceners, the entry of the other, who could not, without a subsequent ouster, have maintained an ejectment against her companion and that to reason, in the present case, by analogy to the doctrine of remitter, would be to confound a wrongful estate in fee-simple, defeasible only in two ways, viz. either by operation of law upon the concurrence of the estate and right, or by a real action, with a base or qualified fee, determinable by the act of the party entitled; and, secondly, that, as regards the statute, it simply operates to abrogate the former doctrine, that where one of several co-tenants had been in the possession or receipt of rents of more than his share to his own use, such possession or receipt, unexplained, was referable to the common title, so as to keep alive for an indefinite period the right of the one party out of possession against the other in actual possession; thus establishing (for its own purposes only) the converse presumption; but it

4. Because, by virtue of the deeds of lease and release of 1814, and the recovery suffered in Easter Term of that year, and of the deeds of lease and release of March and May, 1818, and of the recovery suffered in Easter Term, 1818, and the several other assurances stated in the verdict, the lessors of the plaintiff in the action of ejectment, or some of them, were or was entitled to recover the undivided moiety in question in this writ of error.

1

The reasons assigned in support of George Woodroffe's writ of error were as follow:

part of the premises in question.jeftochow I stand 2. Because the entirety of the premises in question is now vested in the plaintiff in error as tenant for life in possession under the will of George Woodroffe, the testator of 1778, from the time of whose death, in 1779, the devisees claiming under his will have been in the uninterrupted possession and enjoyment of all the said premises, without any entry by the issue in tail claiming under the settlement of 1710, or any remitter to such issue, who, at the death of the said testator, George Woodroffe, were under no disability, mid da

3. Because, if the effect of the conveyance by Hester Woodroffe, in 1735, was not to accelerate or bring into possession the reversion in fee then vested in George Woodroffe, her son, as the heir-at-law of Robert Woodroffe, subject to a right of action only to accrue on the death of Hester Woodroffe, to the issue then entitled under the entail created by the settlement of 1710, (which, it is submitted, was the true effect), then the effect of such conveyance was to vest the entirety of the premises in question in the testator, George Woodroffe, for an estate in fee-simple, determinable on failure of issue of Robert and Hester Woodroffe, and defeasible by the entry of the issue in tail under the settlement of 1710, within the time prescribed by the Statute of Limitations, 21 Jac. 1, c. 16, which estate continued

vested in the testator, George Woodroffe, till the time - of his death, and passed by his will, and afterwards became and is now indefeasible.

4. Because the period from which the Statute of Limitations began to run, against the estate tail created by the settlement of 1710, ought to be computed from the death of Hester Woodroffe in 1767, at which time either a right of action or a right of entry accrued to the testator, George Woodroffe, as heir in tail; but the said George Woodroffe, being then in possession of the entirety of the premises under his title, either to the reversion in fee-simple or to the base fee, created by the oconveyance of Hester Woodroffe in 1735, was estopped by the several deeds of 1735, the recovery of 1735, and the deeds of 1765, or by some or one of them, from being remitted to his estate tail under the settlement of 1710; and inasmuch as the operation of this estoppel was only to prevent him from taking advantage of his right of action or entry, and not to prevent the right of action or entry from accruing, it could not, and did not, suspend the running of the Statute of Limitations during his life.d

covery suffered by him, were cited the following textwriters and authorities:-Co. Litt. 348. b., 357. a., 357. b., (Butler's note); Litt., "Tenures," ss. 659, 693, 695; 3 Co. Rep. 84 a, 84 b; Cruise's Dig., "Deed," cap. 10, s. 32, White's ed.; Br. Rem., pl. 10; 2 Bac. Abr. 125; 9 Vin. Abr., tit. "Entry, (Congeable)," ss. 15, 18; 18 Vin. Abr. 441, 443, 447, "Remitter," B.; Wood v. Shurley, (Cro. Jac. 488); The Earl of Arundel v. Lord Dacres, (1 Leon. 91); Machell v. Clarke, (Ld. Raym. 778; S. C., 2 Salk. 619; S. C., 7 Mod. 18); Took v. Glascock, (1 Saund. 260); Seymour's case, (10 Co. Rep. 96 a); Walsingham's case, (Plowd. 557); Sheffield v. Ratcliffe, (Hob. 338); Stone v. Newman, (Cro. Car. 429); Stapleton v. Stapleton, (1 Atk. 8); Goodright v. Mead, (3 Burr. 1703); Doe d. Neville v. Rivers, (7 T. R. 276); Hawtrey's case, (Dyer, 191, s. 22); Curtis v. Price, (12 Ves. 89); The Attorney-General v. The Corporation of Cashel, (3 D. & W. 294); Doe d. Lloyd v. Jones, (15 Mee. & W. 580); Bryan v. Winwood, (1 Taunt. 208); Doe d. Cooper v. Finch, (4 B. & Adol. 283); Doe d. Callnor v. Davies, (1 Esp. 461); Barton's Points on Conveyancing, (Mr. Booth's opinion), 92; Doe d. Coode v. Martin, (8 B. & C. 497, 526); Lampon v. Corke, (5 B. & Ald. 606); Hermitage v. Tomkins, (Ld. Raym. 729); Shepperd's Touchstone, 52; Horewood v. Holman, (2 Bul.‍ 29); Duncombe v. Wingfish, (Hob. 254); Townsend's case, (Plowd. 111); 6. Because, even if the right of the issue in tail, 3 Preston's Conveyancing, "Merger," 257; Baker v. under the settlement of 1710, was not absolutely barred Willis, (Cro. Car. 476); Sackvil v. Ernsby, (Finch, 5, when William Billinghurst (afterwards William Wood-citing Compton v. Lord Morley); Massy v. Batwell, (4 roffe) took possession of the premises, still the effect of D. & W. 58). On the question of an entry by one his entry was not to remit the said William Billing- coparcener, the following authorities were cited:-Co. hurst (afterwards Woodroffe) to his estate tail in a Litt. 163. b., 246. b., 273. b., 373. b.; Doe d. Marmoiety of the premises, remitter being, in such cases, riott v. Keen, (7 T. R. 386); Doe d. Gill v. Pearsubject to election, and no remitter taking place where son, (6 East, 173). On the question of estoppel :-Doe the party is in possession by virtue of the Statute of d. Coode v. Martin, (8 B. & C. 497, 526); Lampon v. Uses. In the present case, the facts stated in the spe- Corke, (5 B. & Ald. 606); Hermitage v. Tomkins, (Ld. cial verdict furnish proof, amounting to estoppel, of the Raym. 729); Shepperd's Touchstone, 53; Co. Litt. election and intention of William Billinghurst (after- 352. a.; Right v. Bucknell, (2 B. & Adol. 278). On the wards Woodroffe) to take possession of the entirety of question of merger :-Co. Litt. 357.a., and Butler's note the premises, as devisee for life, under the will of (1); Preston on Merger, passim; Shepperd's TouchGeorge Woodroffe; and, previously to his entry in 1790, stone, Surrender," cap. 17; Stone v. Newman, (Cro. he was already in possession of the same premises, as Car. 429); Doe d. Rawlings v. Walker, (5 B. & C. such devisee, under the will of George Woodroffe, by 111). On the question of what estate passed by the virtue of the Statute of Uses. deed-poll of 1735 were cited:-Smith v. Packhurst, (3 Atk. 135); Moore v. Magrath, (Cowp. 9); The Earl of Clanricarde's case, (Hob. 277); Culley v. Doe d. Taylerson, (Cowp. 217).

5. Because, at the time when William Billinghurst (afterwards William Woodroffe) took possession of the premises in question in 1790, the right of the issue in tail, under the settlement of 1710, was absolutely barred by the Statute of Limitations.

7. Because, under the circumstances of the present case, there could no be remitter, unless there was a right of entry at the time, and not a mere right of action; but by the union, in the person of the testator, George Woodroffe, of the base fee acquired under the conveyance from Hester Woodroffe in 1735, with the immediate reversion expectant on the failure of issue in tail under the settlement of 1710, a merger took place, which turned the right of entry of the issue in tail into a mere right of action; and when William Billinghurst took possession in 1796, he had no right of entry as heir -or co-heir in tail.

8. Because, even if the right of the issue in tail under the settlement of 1710 was not absolutely barred when William Billinghurst (afterwards Woodroffe) took possession in 1790, it was, at all events, so barred before the date of the recovery suffered in 1814.

The reasons assigned by each side, in answer to the other's writ of error, are easily deducible from the reasons assigned by that party in support of his own writ*. G. Turner and Bethell, ( W. Hayes and Peacock were with them), in support of the first of the above writs. Humphry and R. Palmer, in support of the second writ of error.

66

Lord BROUGHAM.-My Lords, this case has now occupied in argument four days, and very usefully and instructively, because we have heard the case very ably argued by very able and learned counsel. It is a case of very considerable importance to the law, because principles are vented and argued founded upon opinions which are in the nature of first impressions; and it requires, therefore, a more careful consideration on the part of your Lordships, before you finally dispose of this case; and I therefore congratulate your Lordships, that we should have the assistance of the learned judges to guide our inquiries into those points. My Lords, I shall propose that you shall put this question to the learned judges, which I think embraces the whole case "In the state of the titles and facts generally found by the special verdict, did the defendant in error take?" This will, I think, embrace the whole argument; but, at the same time, I should not be dealing fairly with the case and with your Lordships, if I did not add, that there are certain points upon which I should wish to have the opinion of the learned judges, though I do not look to them to answer those questions as if they were questions administered to them by your Lordships; but I will throw them out for the learned judges, and will furnish them with a copy of them. They are points that have arisen in the course of the argument and consideration of this case,