itance of the said S and T, in fee tail general; whereupon they complainand say, that S H, on &c., was seized of the tenements &c., with the appurtenances, in his demesne as of fee; and being so seized thereof, then and there made his last will and testament in writing, which since his death, hath been duly proved, approved, and allowed; and therein and thereby, among other things, gave and devised the tenements &c. to his nephew, I, viz. one half when he should arrive at the age of twenty-one years, he being then a minor, and the other half thereof, upon the death of S H and S, his wife, the said I's father and mother, to have and to hold the same to him, the said I, and the heirs of his body begotten, in fee tail general. And afterwards, on &c., the said testator died at &c., seized of the tenements &c. And afterwards, on &c., the said I, being then arrived at the age of twenty-one years, and said S H and S being then both dead, entered into, and became, and was actually seized of the tenements &c. in fee tail general. And afterwards, on &c., the said I, at &c., died, leaving O, P, Q, R, and a daughter, M, the wife of E, all subjects of the king of Great Britain, and aliens to the commonwealth of Massachusetts, and to all the United States of America, and incapable by law of inheriting or holding any lands, tenements or hereditaments within said commonwealth; and leaving, besides said four sons and one daughter, at said time of his decease, the said S and T [plaintiffs] his daughters, then, and ever since, and yet citizens of this commonwealth, and the only issue of his body lawfully begotten, besides four sons and one daughter, aliens as aforesaid; whereupon the right to the tenements &c. descended to the demandants, to have and to hold the same to them, in fee tail general; and they ought to be in the actual possession thereof; yet the said X [defendant] hath unjustly, and without judgment of law, entered thereinto and holds, &c.

2. Formedon in Remainder.

Where land is given to one in tail, remainder over; and the tenant in tail aliens in fee, and dies without issue; or the tenant in tail dies without issue of his body, and a stranger abates; he in the remainder shall have a writ of Formedon in Remainder. F. N. B. 499.

So, if lands are given to R for life, remainder to S in tail, and R dies, and a stranger abates and deforces S, S or his heirs may have a Formedon in Remainder. Ibid.

But, if he in the remainder, or his heir, is once seized of the lands by force of the remainder, he shall never have a Formedon in Remainder of that land. But the issue of such remainderman so seized, may have Formedon in the descender, or the tenant who has once been seized under the remainder, if put out, may have an assise of novel disseizin, or writ of Quibus. See F. N. B. 5C2.

Of the Count in Formedon in Remainder.

It is necessary in the count, to set forth all mesne remainders; and to show that the donee died without issue. 8 Co. 88, a.

But it is not necessary to name the issues of the donee in tail; to say "because the donee died without issue," &c., is sufficient.

In a Formedon in Remainder, it is not necessary to allege the taking of esplees by the donor; it is sufficient if they are alleged in the donee. F. N. B. 492, n. c.

COUNT IN FORMEDON IN REMAINDER.

Whereupon the said P P says, that the said A A gave the messuage &c., with the appurtenances, to the said B B, and the heirs from his body issuing, so that if the said B died without heirs from his body issuing, the messuage aforesaid, with the appurtenances, should remain to the said P P and his heirs; by virtue of which gift the said A A was seized thereof in his demesne, as of fee and right, by the form of the gift aforesaid, in a time of peace &c., taking the esplees &c., and from the said B B, for that he died without heirs from his body issuing, the right by form &c. remained to the said B B, the demandant, and which [*after the death of the said B B, ought to remain to the said P P by the form of the gift aforesaid, for that the said B B died without heirs from his body issuing.] Booth, 152,

153.

NOTE. If the Formedon be brought by the heir of him in remainder, it is thus; "And from the said B B, for that he died without heir of his body issuing, the right remained to the said P P, and from the said P the right remained by form, &c. to the said Q, as son and heir, &c." Rast. 369, b.

If the Remainder be once executed, viz. if the remainderman be once seized of the estate tail in possession, and right descend to the heir, the heir shall never make mention of the remainder, but shall have the general writ of Formedon in descender; for it is a rule in the Register, that brevia nunquam faciant mentionem de remanere quando breve est in le descender. As if A gives lands to B in tail, remainder to C in tail, and B dies without issue, Č enters and aliens in fee, and has issue, D ; D shall not have a Formedon in remainder, because C, his father, was seized, and the right descended to him, but he shall have a general writ of Formedon in descender, &c., " which A gave to C and his heirs of his body

66

*In the writ, but in the count it is by an " &c."

issuing, and which, after the death of said C, ought to descend to the said D, as son and heir of the said C." Reg. 244; 8 Co. 88, a, Buckmer's case; F. N. B. 546, b.; Booth, 152.

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But a demandant in Formedon in Remainder ought to make mention of all the precedent remainders in tail. 8 Co. 88. But it seems, that all that were seized in the precedent remainders need not be named; viz. the issues of the remaindermen; and the remainderman who counts, need only say, eo quod" the precedent remainderman died without issue. And the reason seems to be, because it is not requisite in a Formedon in reverter, for the remainderman's title depends upon the precedent remainderman's dying without issue, as his in reversion, upon the donee's dying without issue. Booth, 153, 154. (MSS.)

Formedon in Remainder by devise stating the title especially.

In a plea of land, wherein the said P demands against the said B the possession of one undivided fourth part of &c.; whereupon the said P complains and says, that his grandfather F, on &c., was seized in his demesne, as of fee, of the said &c., with the appurtenances, taking the profits &c.; and being so seized thereof, on the same day, duly made and executed his last will and testament in writing, and therein and thereby devised the same tract of land &c., to his son D, and the heirs of his body issuing. And in and by the same will, the said F devised, that if the said D should die without heirs of his body issuing, the same tract &c. should remain to the said F's four daughters, viz. S, A, R and M, to hold to them and their heirs, as tenants in common, and in equal parts, from and immediately after the death of the said D, without heirs of his body issuing. And thereafterwards, on &c., the said F died so seized. And thereafterwards, on the same day, the said D entered into the said tract &c., and by force of the said will, became seized thereof in his demesne, as of an estate in fee tail general, taking the profits, &c. And thereafterwards, on the same day, the same will was duly proved, approved, and allowed; by reason whereof, and by force of said will, the said S, A, R and M, then and there became seized, as of fee and right, of and in the remainder of the said tract &c., expectant upon the death of the said D, without heirs of his body issuing, and as tenants in common as aforesaid. And thereafterwards, on &c., the said D died so seized of his said estate, in fee tail general, and without heirs of his body issuing; whereupon the said tract &c. remained to the said S, A, R and M, by the form of the gift aforesaid, as aforesaid. And the said S became entitled and seized in her demesne, as of fee, of one undivided fourth part of the

said tract &c. And thereafterwards, on &c., the said S being so seized thereof, duly made and executed her last will and testament in writing, and therein and thereby devised the same undivided fourth part &c., to the plaintiff, his heirs and assigns. And thereafterwards, on &c., the said S died so seized. And thereafterwards, on the same day, the plaintiff entered into the same undivided fourth &c., and became seized thereof in his demesne, as of fee; and there on the same day, the said will of the said S was duly proved, approved, and allowed; and the plaintiff ought now to be in quiet possession and seizin of the demanded premises; yet the said B hath illegally entered into the same, and continues to keep the plaintiff out, &c. DANA.

3. Formedon in the Reverter.

Where there is a gift in tail, and afterwards by the death of the donee, or his heirs, without issue of his body, the reversion falls in upon the donor or his heirs, a writ of Formedon in the Reverter lies, for such reversioner. F. N. B. 503; 8 Co. 88.

So if, after the gift in tail, the donor or reversioner makes an assignment, and afterwards the estate tail determines, for want of issue in tail of the donee, the assignee of the reversion may have a Formedon in Reverter. lbid. But if the reversion is assigned in tail, and not in fee, such reversioner may have a special writ, the form of which is given in F. N. B. 503, a count on which may readily be framed.

The time limited by statute, within which writs of Formedon in Descender, in Remainder, and Reverter, must be brought.

It is generally thought, that a clear adverse possession of land, for the term of limitation of a writ of right on the seizin of an ancestor, will make a clear title against all the world; but this is denied by Sugden in his treatise on the law of Vendors and Purchasers. He says, it is possible that an estate may be enjoyed adversely for hundreds of years, and may at last be recovered by a remainderman. He puts the case of an estate tail, with remainder over in fee, and supposes the tenant in tail to be barred of his remedy by the statute of limitations, and then remarks," it is evident that as his estate subsists, the remainderman's right of entry cannot take place, until the failure of issue of the tenant in tail," &c. See also, 3 Cruise's Digest, 541; Ballantine on Limitations, 10; Lutw. 770; Brown's Parliamentary Cases, 67; Salk. 422.

All actions of Formedon, whether in Descender, Remainder or Reverter, under the Massachusetts Statute, 1786, chapter 13, section 4, must be brought within twenty years after the title or cause of action first descended, &c. There is, however, a proviso in the same section, that a person, under age, a feme covert, non compos, imprisoned, or beyond seas, or without the limits of the United States, at the time when the

title first descends, may bring such action within ten years after the expiration of the twenty years. By the Statute, 21 Jac. 1, chapter 16, persons laboring under similar disabilities, must bring their suits within ten years after the removal of the disabilities. Note the diversity.

Where the statute of limitations once begins to run, it never stops on account of any subsequent event; and, therefore, if after an estate tail has determined, the remainderman or reversioner, suffers ten years of the twenty to elapse without bringing his suit, his heir, whether laboring under a disability or not, will have no more than the remaining ten years of the twenty, to bring an action. 6 Massachusetts Reports,

328.

P P demands against D D one messuage &c., whereupon he says, that R R, the grandfather of said P R, &c.* was seized of the (tenements aforesaid,) with the appurtenances, in his demesne, as of fee and right, in a time of peace &c., taking &c.; and being so thereof seized, afterwards gave the tenements aforesaid, with the appurtenances, to the said C C, and the heirs of his body issuing, in form aforesaid, by virtue of which gift the said C was seized thereof in his demesne, as of fee and right, by the form of the said gift, in a time &c., taking &c.; and from the said C C, for that he died without heir of his body issuing, the right by the form &c. remained to the said W W and the heirs of his body issuing; and from the said W W, for that he died without heir of his body issuing, the right by the form &c. reverted to the said P P, the now demandant, as cousin and heir of said R R, to wit, son of B B, son of said R R, and which after the death, &c. Booth, 156; Rast. 375, a.

NOTE. This count is for the grandchild of the donor, where a gift is made in tail, remainder in tail, and both die without issue.

By this count, the father never had any right descended to him, because the demandant makes himself heir to the grandfather. Booth, 156.

It is a rule in Formedon in Reverter, that the esplees must be alleged both in the donor and donee, as in the above count. F. N. B. 549 ; Booth, 156.

In this writ none of the ancestors of the donor, that were seized of the reversion, or to whom a right to the reversion descended, are to be omitted in the pedigree; and, therefore, the omission of the eldest son who survived the father shall abate the writ; as, if there be grandfather, father and son, and the grandfather gives land to R in tail and dies, and then the father dies, and then R, donee in tail, dies without issue, and a stranger abates, the son, in a formedon in reverter, must say, "and which, after the death of R, to the said C, son and heir of L, son and heir of M, the grandfather, ought to revert by the form, &c., for that the said R died without heirs of his body issuing." 8 Co. 88, Buckmer's case; Booth, 155.

But on the part of the donee, the demandant need not name any of the issues in tail in the pedegree, either in the writ or count, but shall say,

* Whose heir he is, in the writ.