CH. 178. Art. 18. Register, 232. -3 Com. D. 314.-2 Com. D. 92. Register.228. mentioned, in which the plt. claims to recover the lands because parted with when he or she was not of a capacity to convey them when the conveyance, or supposed conveyance, was made. § 2. In cui in vita, the demandant demands seizin and possession of certain lands, &c. described, which she claims as her right and inheritance, and into which the said D. (deft.) hath not entry but by C., formerly husband of the demandant, who demised the same to the said D., whom (said C.) the demandant could not in his life time oppose. So she may declare in the per and cui, and in the post, as in article 15, this chapter, mutatis mutandis. §3. Dum non compos mentis. Here the plt. demands land, -3 Com. D. &c. which he claims as his right &c. which lands &c. the Wood's Con. demandant while he was not of sane mind demised to the said 437,438. 555.-4 Register, 228, D. 554 --4 437. D. (deft.) §4. Dum fuit infra ætatem. In this case, the plt. demands 229-3 Com. lands &c. as his right and inheritance, which lands &c. the Wood's Con. demandant, while he was within age, demised to the said D.; and if any conveyances between the person to whom the non compos, or minor, conveyed, and the tenant of the land at the time of the action brought, declarations may be framed in the per, per and cui, and post, as in the books of entries and article 15, above. § 5. So in entry sur disseizin, with title; the plt. claims the lands as his right and inheritance, and of which the deft. unjustly, and without judgment, disseized C., father (or other ancestor) of the demandant, whose heir he is, &c. So in the the per, per and cui, and post, as above. §6. Other technical ancient forms might be added, in which the tortious entry into the lands, made by the deft. or by some one under whom, or after whom, he claims, is thus particularly, and according to our present use of the English language, peculiarly described; that is,-hath not entry but by F., to whom G. demised the same, who intruded himself into the same &c. beginning with the last wrongdoer, and running back to the first. Probably this peculiar arrangement of words in English has arisen from translating the Latin forms and words according to the order in which those words were written, and not as is usual in most translations of Latin according to the sense; but be this as it may, it is not necessary or material to pursue these ancient forms further, because by attending to our modern forms, we shall find we follow these ancient ones but in substance, not in words; and especially not in any such peculiar arrangement of words or sentences. § 7. In these cases of inability in the plt. or demandant, it Swett v. will be observed, that a conveyance in form is admitted, but CH. 178. this inability is insisted on. Hence the deft's. plea must be Art. 19 formed to come to issue on this. If he cannot safely demur to the allegations of disability, perhaps the deft. may safely demur to a declaration alleging the pit. conveyed dum fuit non compos mentis, if the opinions of Coke &c. cited Ch. 35, a. 6, are correct; so Ch. 127; but these may be doubted, for reasons there stated. In Swett v. Boardman, stated Ch. 93, Boardman. a. 3, the heirs pleaded the testator was not of sound mind; the devisee answered and pleaded that he was of sound and disposing mind, and on this point was the issue to the jury. So in the case of Mrs. Norris' will, Ch. 127, a. 6; and in the case of infamy alleged in a dum fuit infra ætatem, the deft. may plead, the plt. was of age, and come to issue on this point. So in cui in vita, the defi's. plea will be formed according to the circumstances of the case. § 8. Though we adopt the principles of these writs so far to enable those wives, minors, and persons non compos, or their heirs &c. to avoid such conveyances as are complained of in these writs, yet we never have adopted their peculiar forms; but usually, these disabled persons or their heirs, to avoid such conveyances, sue in common form, and demand the lands as their right; shew such titles as they had before such conveyances made in fact good titles; and of course the defts. are driven to disclose their titles, or grounds of defence, and so to plead these conveyances by husbands alone, of wives' lands, by minors and persons non compos, or, as is usual, defts. are driven to give such in evidence on the general issue in their defence; and then the question is made upon their validity, and decided commonly in a trial on this issue, or a case stated or reserved; for when the demandants declare generally on a seizin in fee, as in themselves or in some one from whose seizin in fee they derive their lesser estates, as in tail &c. the defts. must necessarily plead generally, or the general issue, for till the trial comes on, on the issue joined, they cannot know that their conveyances will be questioned; and by a settled rule all matters must be in evidence that cannot be timely pleaded. ART. 19. Advancement pleaded in bar and allowed. 680,692, This was a writ of entry in which the demandants counted 4 Mass. R. on their seizin within twenty years, and on a disseizin by Quarles, jun the tenant; and claimed in fact their father's moiety in & al. v. his father's estate in Hamilton. This cause of the first im- Quarles. pression was argued at great length by the counsel; and in deciding which, as appears by the report, the judges were divided. To understand this cause correctly, the substance of the Ch. 178. pleadings must be stated: 1st plea was the general issue, mere Art. 19. form; the 2d plea special; and the tenant pleaded that his father, Francis Quarles, August 17, 1785, had children, namely, Francis, the tenant; Elizabeth, wife of N. P.; and Samuel Quarles, father of the demandants; and the father having assigned and delivered to his son Samuel, "his full portion of the estate of the said Francis, the father, by advancement," he, the son, on that day, "in consideration of such advancement, by his deed of that date, sealed" &c. in court &c. acknowledged that he was fully satisfied his full share and portion of his father's estate, and did therein fully acquit and discharge all claim he or his heirs might have thereto; plea stated the deaths of father and son; and gave colour, saying the demandants, claiming by a colour of a deed of feoffment, made by the father, said Francis, to them, when no right passed by it, entered &c. on whom the tenant entered,-hoc paratus. Demandants prayed oyer of said deed, and had it; this was, "whereas, I have this day received of my honoured father, Francis Quarles, of that estate which he bought" of T. Patch &c. "of which he hath given me a certain part, in consideration of which I am fully satisfied and contented, as my share of his estate; furthermore do fully acquit and discharge my father's estate forever hereafter, from having any demand thereon as an heir to any part thereof; in witness" &c. August 17, 1785. Being read &c. the demandants said, precludi non ; because, they said, the father, August 17, 1785, by his deed &c. produced &c. for a valuable consideration &c. (£233. 6s. 8d.) gave, granted, sold, and conveyed to said Samuel Quarles in fee, a certain tract of land in the same deed described, being the same deed received of the said Francis Quarles, the father, by the said Samuel Quarles, and the same land which was bought of Timothy Patch aforesaid, in the plea aforesaid mentioned,"-hoc paratus. Rejoinder. The tenants prayed oyer of this the father's deed, and had it; by which, in common form, for £233. 6d. 8s. lawful money, he gave, granted, sold, and conveyed to said Samuel in fee, this Patch farm in Wenham, with the usual covenant and warranty, dated August 17, 1785, all which being read &c. the tenant said, that as to the replication, the father on that day conveyed to said Samuel in fee, said farm described &c. "not only in consideration of the sum of mo ney therein expressed, but also as, and for a full advancement to the said Samuel, as his part and portion of the estate of the said Francis, the father; and he, the said Samuel, then and there, by his said deed, did accept (said farm) as such advancement, and in full satisfaction of his said share and por tion of the estate of the said Francis, the father"-hoc paratus. To this rejoinder the demandants demurred generally, and joinder; rejoinder adjudged good. Counsel made three points: 1. As to the pleadings: 2. Has the tenant proved a legal advancement? 3. Did the son's deed bar him? CH. 178. Art. 19. Ekins. 1. The demandants urged that the advancement was not well pleaded &c.; the tenant urged that a full advancement was well pleaded, and relied on Willes, 131; 2 Burr, 332, Eaton v. Rix . Royall; demandants denied their demurrer, admit- Southy. ted this Patch farm to be accepted as a full advancement, as they denied this matter was well pleaded; tenant on this point relied also on Stra. 817; 1 Com. D. 348; 4 Com. D. Palmer v. 73, 74; 3 D. & E. 474; 5 D. & E. 465, Burleigh v. Stibbs; and argued that his plea was not traversed, answered, or avoided; that the conveyance of the farm was for the son's portion as well as the £233. 6s. 8d.; and relied on 4 Co. 176; Mildmay's 2 Co. 76, Cromwell's case; 4 Co. 1, Vernon's case, to prove that a further consideration may be proved when it stands with that named in the deed; so the portion in addition to the £233. 6s. 8d. case. 379.-4 Co.: 2. The demandant contended the tenant had not proved 8 Mod. 78.-a legal advancement; as since the act of March 9, 1784, there 10 Mod. 345, can be admitted no evidence of advancement but that mentioned in it; the tenant contended that the act did not exclude other evidence, and went largely into the construction of the act, and other laws on the subject. So was decided. 3. Did the son's deed bar him? The demandants contended it did not, as when he made it, he had no interest in the lands demanded, hence his deed could not operate as a grant, a feoffment, or as a release. The tenant answered, that is like many other new cases; it must stand on its own ground, and be governed on general principles;-relied on 4 Burr. 2312, Justice Willes' opinion; and the opinion of Lord Mansfield, Dougl. 277; the authority of several courts in construing contracts in law and in equity, also statutes; Dougl. 22; 2 Com. D. 480 to 484; there was no question as to the parties' intentions; and if ever to be carried fairly into effect, they must be in these family affairs; the son clearly barred in equity, not on the ground of a release, nor of estoppel, for there are none in equity; but on general principles, and because a person Lampet's never can have two things rightfully, when one has been given case, 10 Co. him, and accepted by him, in lieu of the other. The tenant 46--3 D. & did not rely on the deed as release, aware that merely as title v. Morse. E. 370,Goodsuch, it could not operate, as the son, living the father, had no interest in the estate; 3 D. & E. 370; Co. Lit. 353; but as to an heir's barring himself when he has only a hope of suc 3 D. & E. 88-8 Mod. 258.-1 Com. D. 197. CH. 178. Art. 20. Mass. act, June 18, 1791.Maine act, B. 148. cession, an expectancy, the law had been long changing to favour the intention; and to bring the case nearer to that of dower, living the husband. The heir's feoffment bars him, made living his ancestor, because he shall not claim against it. So his deed with warranty bars so made, formerly held on the ground of circuity of action; but modern cases state, that deeds without warranty equally bar as those with. The cases cited, Co. Lit. 353, 365; 2 P. W. 445, were cases in which the heir's deed was viewed as a mere release, and no bar; as a release, as such in law can have no operation, but on an existing interest, and its operation in law is to pass or extinguish an existing interest or right; hence when neither can. exist, this kind of deed can have no effect; and if no deed of an heir can operate but as a release, on some interest to bar him, when the estate descends to him, then his feoffment or deed with warranty would not bar him; but the authorities are otherwise. ART. 20. Pleadings in inquests of office, or informations of intrusion. § 1. In such suits brought to cause the State to be reseized of lands granted by it, on conditions to be performed by the grantee, there is often occasion for special pleas in bar, on account of such conditions alleged by the deft. to be per formed. § 2. As proceedings in these cases are grounded on certain statutes, it may be material to state the substance of them. § 3. This act provides, that if the commonwealth grant lands &c. on condition mentioned in the grant, and the State shall claim to be revested, by reason of the breach of conditions, an inquest of office shall be taken in the Supreme Judicial Court, in the manner pointed out in the act, in the county where the land lies. The attorney-general, on the directions of the legislature, shall file an information, stating the cause, and such breaches of conditions as the legislature shall order, and the court shall issue a scire facias to those who are said to hold the land, to be served thirty days before the court; and the act points out the further process and judgment. If decided for the State, the judgment is, that the State be reseized, and execution issues for costs. § 4. By this act it is left to the attorney-general to assign the breaches. By the act of 1791, if it be only alleged, June, 1796. that the deft. holds more land than he ought to hold, and this be found by verdict or confession, the court may appoint proper persons to set off as much as he ought to hold under the grant, at his expense, and on their return made, the court Mass. act, |