Bertie County NcArchives Court.....Gilliam, V. Jacocks 1826
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Source: Nc Court Reports Vol 11, 1826
Written: 1826

June Term 1826

Doe on dem. GILLIAM v. JACOCKS. 

From Bertie.

These words are found in a deed of bargain and sale, viz: "Furthermore, I, the 
said M. H., for myself, my heirs, executors and administrators, do covenant 
and engage, the above demised premises, to him, the said J. H., his heirs and 
assigns, against the lawful claims or demands of any person or persons 
whatsoever, forever hereafter to warrant, secure and defend." It seems that 
this is a personal covenant, and not a warranty.

M. H., the grantor in the deed, was tenant in tail, and supposing the clause 
above cited to be a warranty, still no discontinuance of the estate tail is 
worked by reason of such warranty occurring in a deed of bargain and sale; nor 
is the heir in tail put to her formedon. Quere: Can the writ of formedon be 
now brought?

The first heir in tail after the death of M. H., the grantor in the foregoing 
deed, when the right devolved on him was an infant, and died before the 
disability was removed, leaving an infant heir, who became covert before full 
age, and brought her action within three years after discoverture; she is not 
barred by the statute of limitations—she comes within the saving of the act.

Specal verdict as follows:—The jury find, that the lands demised to the 
plaintiff were granted to John Hardy in the year 1717, and were by his will in 
writing, duly executed to pass lands, dated 1719, devised to his daughter 
Elizabeth Hardy, in the words following, "Also I give unto my daughter 
Elizabeth another tract of land, lying on the east side of Rogues Pocoson, 
containing four hundred (311) and twenty-four acres, excepting the one hundred 
acres given to my brother Thomas." And after giving other lands, he devises as 
follows, "All which said lands I give unto my said daughter Elizabeth and her 
heirs lawfully begotten of her body." The jury further find, that after the 
death of John Hardy, the said Elisabeth Hardy intermarried with one Nathaniel 
Hill, and that there was only one child of that marriage, who was born October 
20, 1726, and was called Michael. The jury find that Michael Hill, by his deed 
bearing date 5th of May, 1748, and duly proved and registered, conveyed to 
John Hill the premises, in the words and figures following, that is to say: —

North Carolina.—To all people to whom these presents shall come, greeting: 
Know ye that I, Michael Hill, of Bertie county, in the province aforesaid, for 
and in consideration of sixty pounds, current money of Virginia, to me in hand 
paid bv John Hill, of the province and county aforesaid, the receipt whereof I 
do hereby acknowledge, and myself therewith fully satisfied and contented, 
thereof and of every part and parcel thereof do exonerate, acquit, and 
discharge the said John Hill his heirs, executors and administrators forever, 
by these presents, have given, granted, bargained, aliened, conveyed and 
confirmed, and by there presents, do freely, fully and absolutely give, grant, 
bargain, sell, alien, convey and confirm unto him, the said John Hill, his 
heirs and assigns forever, one messuage or tract of land, situate, lying and 
being in the province and county aforesaid, containing, by estimation, four 
hundred and twenty-four acres, lying on the east side of Roques Pocoson, and 
beginning at a poplar on the side of the Pocoson, then north 60, east 320 
poles to a pine, then south 74, east 216 poles to a pine in John Hardy's line 
of Brewer's Quarter, then along his line one hundred poles to a rod oak, his 
corner tree, then south 50, west one hundred and sixty poles to Roques 
Pocoson, then the said course 60 poles to a chestnut, then through the 
Pocoson, north sixty-six degrees west to the first station; to have and to 
hold the said granted and bargained premises, with all appurtenances thereto 
belonging or in any way appertaining, to him, the said John Hill, his heirs 
and assigns, to his and their only proper use, benefit and behoof forever. And 
I, the said Michael Hill, for me, my heirs, executors and administrators, do 
covenant, promise and grant to and with the said John Hill, his heirs and 
assigns, that before the ensealing hereof, I am the true and sole owner of the 
above bargained premises, and am lawfully seised and possessed thereof in my 
own proper right, and of a good, perfect and absolute estate of inheritance in 
fee simple; (312) and have in myself a good right, full power and lawful 
authority to grant, bargain, sell, convey and confirm the add bargained 
premises, in manner as above said, and that the said John, his heirs and 
assigns, shall and may, from time to time, and at all times hereafter, by 
force and virtue of these presents, lawfully, peaceably and quietly, have, 
hold, use, occupy, possess and enjoy the said demised and bargained premises 
with the appurtenances, free, and clear and freely, and clearly acquitted, 
exonerated and discharged of, and from all manner of former and other gifts, 
grants, bargains, sales, leases and mortgages, wills, entails, jointures, 
dowries, judgments, executions, incumbrances and extents. Furthermore, I, the 
said Michael Hill, for myself, my heirs, executors and administrators, do 
covenant and engage the above demised premises to him, the said John Hill, his 
heirs and assigns, against the lawful claims or demands of any person or 
persons whatsoever, forever hereafter to warrant, secure and defend. In 
witness whereof, I have set my hand and seal, the 5th day of May, A. D. 1748.

(Signed,) MICHAEL HILL, [Seal.]

The jury further find, that John Hill, the grantee in the above deed, entered 
into and was peaceably possessed by actual occupancy, of the premises therein 
bargained and sold, immediately on the execution of the deed, and continued so 
possessed until he departed this life about the year 1770. John Hill died 
intestate, and left Henry Hill, his son and heir at law, who upon the death of 
his father, entered into the possession of the premises which descended to 
him, and continued his possession by actual occupancy, until the 3rd day of 
May, 1791, when he by deed of bargain and sale of that date, duly proved and 
registered, in consideration of Ł679 10s. to him in hand paid by Moses 
Gilliam, conveyed the premises to said Moses and his heirs, by the description 
set forth in the above deed of Michael Hill, and the said Moses, in and by 
virtue of said deed, and by virtue of the statute transferring the possession 
to the use, was seized of the premises in fee, and entered into possession and 
continued in actual occupancy thereof until -- of May, A. D., 1819, when he 
was turned out of possession by a writ of habere facias possessionem, to the 
sheriff of Bertie directed, which issued in a suit in ejectment, wherein there 
was judgment in the Supreme Court of North-Carolina, that one Joe Doe should 
recover (313) damages for a trespass of the said Moses, in ousting the said 
John from a term of years, which he held on the demise of Elizabeth Jacocks, 
from the first day of January, A. D., 1813, to the full end and term of seven 
years, thence next ensuing. And the jury further find, that the said 
Elizabeth, by the sheriff aforesaid, was placed in the possession of said 
premises, and continued in the quiet and peaceable occupancy thereof, until 
the first day of January, 1820, when she departed therefrom, and John Doe, in 
and by the demises set forth in the declaration in ejectment, in this suit 
entered, and was possessed of his term as therein set forth, until the 10th 
day of January, A. D., 1822, when the said Elizabeth entered in and upon the 
said John, and ejected him from his term aforesaid. The jury futher find, that 
Michael Hill and Elizabeth Hill, had one son, Hardy, who was born 21st 
February, 1756, and died 5th of September, 1777, intestate, aged twenty-one 
years six months and fourteen days, leaving his daughter Elizabeth his only 
child and heir at law. The jury find that she was born February 18, 1776, and 
was married to Jonathan Jacocks March 17, 1791. The jury find, that she came 
of lawful age on the 18th February, 1797, and that Jonathan Jacocks departed 
this life the 2d day of December, in the year 1810, and that she brought her 
action of ejectment in Bertie Superior Court, on the -- day of April, 1818, 
against Moses Gilliam, on which there was a judgment in her favor, and an 
appeal to the Supreme Court, in which the judgment was affirmed at May term, 
1819, and she was placed in possession as before mentioned.

Nash, Judge, who presided, on this special verdict, considered that the law 
was for the defendant, and gave judgment accordingly, from which plaintiff 
appealed.

It was in this court admitted, that Michael Hill died 1760, and it was agreed 
the fact should be part of the case.

Hogg, for plaintiff.—The deed of Michael Hill to John Hill, of 1746, created a 
discontinuance of the estate (314) tail of which Michael was seized, so that 
the issue of Michael could not revest the estate by entry, but must recover 
the freehold by writ of formedon.

A discontinuance may be effected by any deed from a person having "the right 
of possession," which hath validity to transfer that right; but not the right 
of property. It is the alienation of the "right of possession," leaving the 
right of property in another, which must be asserted by an action, and not by 
entry. A deed of feoffment from a person having the right of possession (a 
tenant in tail for instance) divests his own estate in possession, and 
transfers a fee-simple to his feoffee, determinable by the formedon of his 
issue, whose right of action is saved by the stat. dedonis. This 
discontinuance is produced by feoffment, partly because of the notoriety of 
the transfer of possession from the feoffor to the feoffee, which was 
completed by solemn livery of seisin, and which the policy of the ancient law 
would not permit to be annulled by entry in pais, and partly because, in the 
simplicity of the common law, a warranty was implied in every feoffment which 
robutted the right of the heir of the feoffer; and the benefit of rebutter 
could not be had upon an entry, but only by a plea insisting on the warranty 
as a bar of the real action.

It is not pretended by us, that the deed of Michael Hill is a feoffment, or 
has the effect of a feoffment. It is a deed of bargain and sale, operating 
under the statute of uses, by passing the me only of the lands to the 
bargainee, to which the possession and seisin of the bargainor are transferred 
by the operation of the statute: The deed itself operating without "livery of 
seisin," passes only what the feoffer may lawfully pass, to wit, his own life-
estate. The residue of the estate will descend to the issue of the bargainor, 
and upon his decease, they may enter on his bargainee, or his heirs, whose 
estate terminated with the life of the bargainor. But as it is lawful for the 
tenant in tail to convey the whole of the inheritance of which lie is seised 
(315) provided he leaves lands of equal value to descend to the heirs of his 
body in fee, in lieu of the estate tail; he may, by any conveyance, bar the 
right of his issue in tail, by leaving them real assets, and by binding them 
in a real covenant to warrant the estate made by him to an alienee and his 
heirs; whereby the alienee and his heirs will have a fee-simple estate, 
determinable on the extinction of the issue in tail, when an entry or action 
will accrue to him in the reversion. By force of a warranty therefore, and 
real assets descended, the right of the issue in tail, may lie effectually 
barred, notwithstanding the statute de donis.

Upon this ground it is, that the warranty itself, without assets, creates a 
discontinuance of an estate tail—because the law intends, that no man will 
bind his heirs to warranty without assets, but especially because, if the 
entry of the issue in tail was permitted, the alienee and his heirs could not 
have the benefit of their warranty without being put to their writ of 
Warrantive Charta (if that lay upon any disturbance besides that of a 
stranger), whereas if the formedon be brought, the warranty with assets might 
be plead in bar of the right of the issue in tail.

As the discontinuance is imputed by us to the operation of the warranty solely 
in the present deed, it will be well to enquire into the use of that covenant. 
It was originally an incident of the feudal relation of lord and tenant. Upon 
every gift of a fee, the vassal or tenant was bound to render fealty or 
service to tho donor or lord, and the lord was bound to defend the fee against 
all acts of strangers, and if the tenant was evicted, to give to the tenant 
lands Df equal value. This was technically called a "warranty." If the tenant 
was sued by a stranger, he vouched the lord to defend the suit, and if he was 
evicted, he recovered his recompense by his warrantiae chartae. If he was sued 
by the lord, or his heir, he rebutted the suit, by pleading the warranty in 
bar of the lord's right of action. These were originally the only warranties, 
as the fee was given (316) by livery of seisin, and not by deed. When charters 
of feoffment were introduced, they had the effect only of preserving evidence 
of the gift, which yet derived its force and effect from the livery. And every 
charter which contained the word "dedi," implied a warranty, without an 
express clause binding the grantor and his heirs. On the introduction of feuds 
into England, a vassal could not alienate his fee, and therefore the warranty 
and services were reciprocal between the donor and donee. Subinfeudations 
nevertheless were soon attempted, and the services being of right due to the 
lord, to whom the reversion belonged, the grantor was not bound to warranty by 
implication of law, but only for his own life. This will appear from the Stat, 
de Bigamis 14, Edw. 1—Stat. 4, sec. 6, which is declaratory of the common law. 
It became therefore necessary for the sub-tenant to have an express warranty. 
Subinfeudation becoming universal by Stat. Quia emplores (18 Edw. 1), a clause 
of warranty became also a necessary part of the assurance by feoffment; and 
hence the only distinction between implied and express warranties. The express 
warranty by deed came instead of the incident to the feudal investiture. By 
the operation of the warranty, implied, and afterwards expressed, the heir of 
the donor upon whom the warranty descended, was barred of any right of action 
for the lands warranted, whether he claimed the inheritance from his father, 
or by gift from another; and whether assets descended to him or not—the 
services due upon the gift, being doomed an equivalent for the land. This 
continued until it was restrained by the statute law.

The first restraining law was passed, 6 Edw., 1, and is called the Stat. of 
Gloucester. By this statute, a husband seised in right of his wife, shall not 
bar his heir claiming ex parte materna, by warranty without assets. But the 
father, tenant for life, was still at liberty to bar his heir of an 
inheritance claimed from his mother by warranty and assets. The next 
restraining statute, was the Stat. (317) de donis (13 Edw. 1), which 
prohibited the alienation of tenant in tail, to the prejudice of his issue and 
the donor.

This statute does not mention warranty; but it was construed by analogy to the 
stat. of Gloucester passed seven years before, and the conveyance of tenant in 
tail with warranty, was held not to be a bar to the issue on whom it 
descended, but his conveyance with warranty and asset was held to bar the 
issue; nay so far was warranty respected, that the warranty of any ancestor 
(except the tenant in tail, who was within the words of the statute) was held 
to bar the issue, without assets. These warranties descending from other 
ancestors (not tenants) were afterwards called collateral. In all cases where 
the issue by virtue of this statute would avoid the force of his ancestor's 
warranty, he must resort to the remedy granted by the statute, his formedon in 
descender; for except by that writ, the warranty of the ancestor was 
conclusive of the right of his heir, on whom it descended; and upon that writ 
only, could the alienee of the tenant have benefit of his plea of warranty and 
assets descended, or of his collateral warranty, if he had one.

The effect of express warranty by deed, is to bind the grantor and his heirs 
to make recompense to the grantee and his heirs and assigns in case of 
eviction. If a stranger evict, the remedy of the grantee is by action or 
voucher. If the grantor, or his heirs, bring suit, to prevent circuity of 
action, the warranty must be plead in bar; and where by the statute law the 
warranty is not a bar without assets, the descent of assets must be averred in 
the plea, and proved on the issue. This plea in bar, is to prevent circuity of 
action, which by the law of warranty was anxiously avoided; for at the suit of 
a stranger, voucher was given, and at the suit of the grantor, the plea in 
bar, technically a Rebutter, was a defence, whereby, in each case, the rights 
of the party are settled in one action, instead of two.

A rebutter differs from an estoppel in this: that (318) the conveyance of the 
ancestor estops himself, and those claiming lands under him as his heirs, to 
claim against his deed, but does not at all estop his heirs not claiming by 
descent from him, but by descent or gift from some other person, to claim 
against the deed. A rebutter would bar the right of the heir however acquired. 
As if the ancestor has the right of possession in himself, and the inheritance 
is in the heir, either by descent from his mother, or by purchase from 
another; if the father convey the lands, the heir claiming by descent from the 
mother, or by purchase, is not estopped to claim against his father's deed; 
but if the father, before the restraining statute, had annexed a warranty, or 
since had left assets to descend with a warranty, the heir shall be rebutted 
of his own right. Coke on Lit., 365.

Before the statutes of 6 Edw. 1, & 13 Edw. 1, the heir was barred by the 
warranty of his ancestor, in all cases, without assets descended, and since 
those statutes with assets descended and the issue in tail, by collateral 
warranty without assets. See Butler's Note, 2. Coke Lit. 373. Bole v. 
Haughton, Vaughan's Rep. 375. Gilbert's Tenures 373.

The deed of Michael Hill to John Hill, doth contain a warranty, and the 
warranty although in a deed of bargain and sale, will, if assets have 
descended from Michael to his heirs at law (issue in tail) bar the right of 
the issue. By force of the warranty in the deed of bargain and sale from 
Michael (if assets descended) a new estate in fee is vested in John and his 
heirs, determinable in the extinction of the issue in tail, by the action of 
the donor in reversion. If assets descended from Michael to his heirs, the 
issue in tail is barred of his right of property, and cannot bring his 
formedon. And because the deed of bargain and sale, with warranty and assets, 
will convey the estate of which Michael was seized, so as to vest in John, and 
his heirs, a determinable fee simple; the same deed and warranty without 
assets, will convey to John and his heirs the right (319) of possession, as 
against Michael, and his heir. If assets have not descended, the issue in tail 
are entitled to their formedon, under the statute de donis; but as Michael 
might rightfully, by deed of bargain and sale, with warranty and assets, 
divest the right of property from his heir (issue in tail) who is not, if 
assets have descended, protected by that statute, so by the deed and warranty, 
he may wrongfully divest their right of possession from his heirs and convey 
it to John and his heirs, leaving the issue in tail, if they have not assets 
from him by descent, to revest their estate by action, by the formedon given 
them by the statute. This is a discontinuance, the deed and warranty conveys 
the possession and right of possession, which was in Michael, to his warrantee 
and his heirs; but the right of property is in the issue in tail, for which he 
has an appropriate remedy given him by the statute de donis.

It is objected, that the covenant in the deed of Michael is not an ancient 
warranty, but a modern covenant for quiet possession only, and this objection 
is rested on the phraseology of the covenant which is not in the precise words 
of the ancient charters of feoffment—the deed witnessed "that the said Michael 
for himself, his heirs, executors and administrators, doth covenant to 
warrant." The ancient clause is, the said Michael, for himself and his 
heirs, "doth or will warrant." It is said, that if the present be a warranty, 
the word executors must be rejected, as the personal representatives were not 
privies to the ancient warranty, and that the bargainor intended to enter into 
the covenant for quiet possession, as he has covenanted for his executors. It 
would be a very unsafe construction to allow the word "to warrant," which has 
a technical sense, to be restrained, because the bargainor attempted to bind 
his executors, even if no reason could be rendered why executors were 
inserted; but it would be very absurd when the executors were properly bound.

The remedy in this country on the ancient warranty (320) being altered, and 
the personal remedy of covenant (in case of the eviction of a stranger) being 
substituted for the ancient one of voucher and warrantae chartae, the 
executors are properly privies, and may be sued. But as to the heir, he is yet 
liable to be sued in covenant, on the eviction of a stranger, and to be 
rebutted if he bring an action, and it is therefore proper that, whilst the 
grantor binds his heirs to the ancient warranty, so that his grantee may have 
the benefit of rebutter, that he should bind both his executors and heirs to 
warrant against the eviction of a stranger. As to the supposed distinction 
between "a covenant to warrant" and "a warranty," and a difference between "I 
do warrant" and "I do covenant and engage to warrant," it is verbal only.

"We know the wording of the covenant is resorted to by the highest authority, 
Lord HardwicKe, in Williamson v. Codrington, 1 Vesey sen. 512. But that case 
turns not on a verbal distinction, but on the broad ground that the covenant 
applied to personalty and realty, and therefore, could not be taken to be a 
real warranty, which would not apply to the personalty at all, and the 
phraseology was merely referred to in aid of the rule of construction "propter 
subjectam materiem," we must construe the covenant in the deed of Michael, 
therefore, so as to give the bargainee the advantage of the warranty in his 
deed, operating by rebutter, that is the legal result from the words used, is 
applicable to the subject matter, because that is the subject matter, and is 
most beneficial to the grantee. But if we could go in search of the meaning of 
the individuals, parties to this deed, we must suppose that they knew they 
were creating a rebutter, because they have inserted in their deed a covenant 
for quiet possession against all former titles and incumbrances, immediately 
succeeding the warranty, and unless they intended to give to the warrantee a 
rebutter, by the warranty they were doing an idle thing.

It is said, that if it be a warranty proper, yet as it is in a bargain and 
sale, that it will not create a discon-(321)tinuance. It is conceded to us 
that a feoffment will pass the right of possession, and therefore creates a 
discontinuance, although a feoffment without warranty and assets will not bar 
the estate tail; and it is not pretended by us that a conveyance that passed 
the mere right, will affect the possession, as a release to a disseisor; the 
release itself only remitting the right to the disseisor. If tenant in tail, 
therefore, releases to his disseisor, he passes only his own life estate, and 
on decease of the tenant, his issue may enter; but if he release with warranty 
and assets descend, he bars his heir, notwithstanding the statute de donis in 
the same manner as if he had infeoffed the disseisor originally, with 
warranty, and assots had descended, and if no assets descend, yet the warranty 
in the release, repels the entry of the heir, and puts him to his formedon. 
Gilbert's Tenures, 53, 54—Litt. Sec. 598, 599, 600, 601.

So a bargain and sale without warranty, passes the life estate only of tenant 
in tail, in possession, and on his decease, his heir, the issue of the donee, 
may enter; but the warranty express in a deed, having the force of a feudal 
contract, may be part of bargain and sale, and by such warranty and assets 
from tenant in tail in possession, notwithstanding the statute de donis the 
issue in tail may be barred. By operation of the statute of 27 Henry VIII, 
chap. 10, called the statutes of uses, the bargainee of a use, hath by the 
statute, the seisin and possession of his bargainer transferred to him; the 
whole estate that was in his bargainor; not a seisin in law, but in fact not a 
right to enter and have the profits, and to call for a conveyance, but the 
actual legal estate of the bargainor; now we have seen that by means of a 
warranty and assets, the tenant and tail may lawfully bar the issue in tail 
his heirs; he may as to them alien the estate tail. He may do so by bargain 
and sale with warranty and assets descended, and if there be bargain and sale 
and warranty, it will create a discontinuance, because the fact of assets 
descended, or not, can be tried only in the real action, by formedon, and 
until tried, the law will intend that the deed of the (322) tenant is lawful, 
and that he has given a recompense to his heir; for the estate of which the 
bargainee is seised, by 27 Henry VIII. See Bacon's Reading ---- 176. Sander's 
on Uses and Trusts, 114 last edit. Cruise, 1 vol., 423, 424, & Vaughan's 
Reports, 384. The cestui que trust is so in of the old estate of the 
bargainor, that he may as assignee of bargainor, avail himself of a warranty 
in a former deed.

That a bargain and sale will create a discontinuance, see Butler's note, 1. 
Coke Litt. 330. Gilbert's Ten., 117, 120.* It is said however, that the 
question of discontinuance is not open, that the present defendant, tenant in 
tail, recovered a term for years in an action of ejectment, and was thereupon, 
remitted to his ancient estate. If there was a discontinuance (and it is 
supposed in the argument) the recovery of the term would not remit the 
discontinuance to her estate tail. The discontinuance had a right remediable 
by real action only, whilst the freehold, in contemplation of law, was in John 
Hill and his assignees. If an entry congeable be in one person (that is the 
right to the possession) and the actual possession be in another, and the 
person having the right to possession get the actual possession, either by 
entry in dais, or by recovery in ejectment, he shall be remitted to his old 
estate. So it is if a person have a right remediable by real action, if the 
freehold be cast on him by act of law, or by recovery, he shall be remitted to 
his ancient estate; but one having the actual possession merely for a term of 
years, where the freehold is tortiously in another, cannot be remitted to his 
ancient estate by operation of law. He must, by recovery or otherwise, destroy 
the tortious freehold. By the recovery in ejectment, Elizabeth Jacocks showed 
only that she (323) had a term for seven years from the day of her demise, 
which had expired before the present suit brought. Co. Lit. 349, a. 8 Bl. Com. 
19, Gilb. Rimitter. Preston's Law Tracts, 45.

The plaintiff's entry or formedon was barred by the act of 1715, before Mrs. 
Jacocks brought her ejectment in 1818. Michael Hill by deed conveyed the 
estate in 1748, to John Hill and his heirs; Michael died in 1760. If there was 
a discontinuance, the heir of his body issue in tail of Elizabeth Hardy, had 
his formedon, if there was no discontinuance, his heir issue in tail, had his 
right of entry in 1760, and in seven years would have been barred by the 
statute of limitations of 1715, unless within its savings; Hardy Hill, the 
issue in tail, having the right in 1769, was born on the 21st of February, 
1756, and was at his father's death an infant of four years of age, and was, 
therefore, within the saving of the statute, and had three years after he came 
of age, that is after 21st February, 1777, to bring his suit. He died 5th 
September, 1777, being of full age, leaving Elizabeth Jacocks, his daughter 
and heir, and issue in tail of Elizabeth Hardy, born 15th January, 1776, and 
the question is, whether this second tenant of the right of action or entry, 
is within the saving of any statute—she married Jonathan Jacocks 17th March, 
1791; he died in 1810, and she brought her suit within less than three years 
after her discoverture. This Court having decided that cumulative disabilities 
supervening; as coverture upon infancy in the same person having a right to a 
personal action, are within the saving of the act of 1715, section 9, so that 
the person must be entirely free from disability before the three years will 
run in a personal action; we will not enquire into the effect of her marriage, 
but pass it over with the single remark that the proviso in personal actions, 
and that as to the right to land is differently worded; and confine the 
argument to show that Elizabeth Jacocks (personally) was never within saving 
of the statute; but as the representative of Hardy Hill, was obliged to enter 
or bring suit; as Hardy her father was. But (324) for the act of 1783, chap. 
187, N. R. Hardy Hill must have brought his action 21st February, 1780, in 
three years after he came of age; by this last act he and his heirs might 
bring it within three years after 1st June, 1784, that was first of June, 1787—
does the fact that he died 1777, having a right by the statutes of 1715 and 
1783 to bring his suit any time before 1st June, 1787, give the defendant 
Elizabeth, the next tenant in tail, a right to bring her suit within three 
years after all her disabilities removed? The purview of the statute of 
limitations intends only to bar the remedy of him whose estate is turned to a 
right by the commencement of the adverse possession—and to bar the remedy of 
him, who by some former gift hath a right expectant upon some outstanding 
particular legal estate for years or for life, from the time such legal estate 
expires and such expectancy vests in right of possession or action so as to 
entitle him thus in remainder or reversion, or being issue in tail, to make 
his entry or bring his suit against him in the adverse possession. For 
instance, if John Hill had taken tortious possession with color of title 
against Michael, the statute would have begun to run upon Michael and his 
heirs, and in seven years, their remedy would have been barred, and if Michael 
had died before seven years, his heir, although an infant, must have claimed 
by suit or entry within seven years—as Michael had a life estate and 
transferred it to John—-Hardy, the issue in tail, having right of entry or 
suit expectant upon Michael's life estate; if Hardy had been at the death of 
Michael (1760) of full age, his heir Elizabeth, must have entered or claimed 
within seven years from 1760. We admit that Hardy being at his father's death 
an infant, had until his full age and three years thereafter to enter, and 
that if he died under age, his heir, if under no disability, should have at 
least three years from his death, to enter or claim, and if less than four 
years of the seven had expired then he should have the residue. At least seven 
years are required for a bar, and in case of disability, the per-(325)son 
disabled and his heirs, shall have seven years, and if the seven years or four 
of the seven be expired, shall have three years added—except a person beyond 
seas, who must by himself or his heir, enter in eight years.

Our argument is, that there is no saving for the heir of a person not under 
disability, whose estate was turned to a present right of possession before 
his death, but that his heir, though under disability, at the time of the 
descent, must enter, and this has never been denied. Further, we insist if a 
tenant under disability die, having a present right of entry, and his right 
descend to an heir under disability that there is no saving for this second 
heir, because of his disability; but he must enter under the saving in favor 
of his ancestor, within three years of his death, if seven years have elapsed 
in all, as his heir of full age must do;—we insist that this is the true 
construction, because in the act his heir not under disability and those under 
disability, are put on the same footing. The purview of the statute clearly 
proceeds on the common law notion, that "heares est pars anticessoris" and 
therefore the non-claim of the ancestor, bars the heir, and the saving is 
framed on the same notion that the non-age or other disability of the ancestor 
shall have the right of entry to the ancestor and his heirs: but the 
disability of the heir of a disabled ancestor is not mentioned in the statute; 
but he, as an heir not under disability, must take advantage of the saving as 
the ancestor himself might, the saving is personal to the ancestor, and the 
heirs are within the saving, as his representatives. If the ancestor be an 
infant under fourteen years, he may have his minority and three years after; 
if he be eighteen years or more, he shall have full seven years from the time 
the possession was adverse to his right—so his heir, whether under disability 
or not, if his ancestor died having less than four years, no claim against him 
shall have the full seven years, although it be more than three from the death 
of the ancestor; but if seven years (326) have expired more than four years 
thereof, before the death of the disabled ancostor, his heir shall have three 
years from the death of the ancestor. Although there be not in our statute any 
thing about the death of a person under the saving, it must be construed that 
the disability terminates by the death as well as by the efflux of time, 
otherwise the heir being under no disability of a person dying under age, or 
other disability, must have seven years after the death of his disabled 
ancestor, although the ancestor himself surviving, his disability would have 
but three, which could never be the intention of the legislature.

The distinction, that persons having a present right and a disability to make 
claim, shall be saved from the operation of non-claim, and that persons 
acquiring a subsequent right, and being under the disability at the time such 
subsequent right, first accrues, shall be also saved from the operation of non-
claim, and that no other persons but as representing such disabled persons, 
shall be within the saving, in common to all the statutes made for the 
limitation of suits and for quieting possessions; and in none of the acts is 
the saving extended to but one disabled person claiming in the same right, and 
to his representatives claiming within the same time given to him. By the act 
of 4 Hen., 7, c. 24, a fine and five years non-claim, concludes all strangers, 
except women covert, infants, persons non compos, in prison and out of the 
realm, who have right at the time of the fine levied—they and their heirs to 
claim in five years after full age, discoverture, &c., else to be barred—other 
persons (not having a present right) to be concluded by the fine and five 
years non-claim of such rights as may first accrue to them after the fine, by 
force of any gift in tail or other matter before the fine; and if any such 
person, at the time of such action accrued, be under twenty-one, covert, non 
compos, in prison or out of the realm, such persons and their heirs to have 
five years next after they be of age, discovert, &c., to bring suit, and if 
suit be not brought by them and their heirs, the line to be a perpetual bar.

By this statute, a person having right at the fine (327) engrossed, and being 
under disability, is excepted, so that he and his heirs bring suit in five 
years after such person be free from disability.

The same of a person first acquiring right after the fine if under disability; 
suit to be brought by him and his heirs after he came to the age of 21, &c. By 
this statute, it is not material in what condition the heir of the person 
disabled be, there is no farther saving for such heir—personally, he must 
claim in five years after the disability of his father. The purview concludes 
all strangers; the saving extends only to the first tenant of any line of 
persons entitled to the right, and to his heirs who may enter in the time 
allowed to them by the saving.

The act of the 32 Henry VIII, c. 2, limited writs of right to sixty years of 
seisin in fact from the test of the writ-formedons to fifty years—and writs of 
assize on the disseisin done to an ancestor, to fifty years—and to the person 
suing for a disseisin done to himself, for thirty years. There is a saving of 
six years only to the persons having right, and being at the passage of the 
act under twenty-one, covert, in prison, or out of England, so that such 
persons sue within six years after such person now being within age, shall 
attain twenty-one within six years after such person, now being covert de 
baron, shall be un-covert, &c.

And there is an express proviso, that if such person die under the disability 
saved, or within six years allowed him or her, that his next heir shall have 
six years after the death of such person.

The statute is remarkable for the express shutting out, cumulative 
disabilities of the persons within the saving, and for giving the next heir by 
express enactment, six years to bring suit, after the death of his ancestor, 
dying under the disability, or within thr six years allowed. If not helped by 
thr express proviso, the next heir would have been barred.

By the statute of 21 James, 1, c. 16, from which (328) our act was probably 
taken, writs of formedon and entry are limited to twenty years after the then 
parliament, or within twenty years after such right of action or entry should 
accrue. The act contains a proviso, that if any person shall be, at the time 
such right or title first accrued, within twenty-one, &c., then such person 
and his heir shall, notwithstanding the said twenty years be expired, bring 
his action, or make his entry, as before the act, so as such person and his 
heirs, within ten years next after his full age, &c., or death, take benefit 
and at no time after the ten years.

From the wording of this statute, it is manifest that the person (or persons, 
where there is more than one tenant) having a right at the time of the adverse 
possession taken, or first acquiring a right after such adverse possession, 
and being under a disability at the time of such right accruing is protected 
for twenty years as all other persons, and for ten years after the termination 
of the twenty years (notwithstanding the said twenty years be expired), so 
that he and his heirs bring his suit or enter in ten years after the 
disability removed or terminated by the death of the party and at no time 
after the ten years, the word death being inserted in this act, from the 
greater caution, it having been omitted in the statute 4th Henry VII.

Then comes our own act, which does not provide that the person under 
disability and his heir, may enter or sue within three years after full age, 
&c., but that the party himself personally shall enter, nor does it provide by 
express words, that the disability shall terminate by the death of the party, 
but provides that the party after full age. discoverture, &c., may claim; but 
we must necessarily give the same construction to our act as if it had been 
provided like the statute of James, as it would be too rigid not to allow the 
heir to enter if his immediate ancestors should die under disability, and too 
loose to give an heir, being of full age and under no other disability, (329) 
seven years after his ancestor's death (the seven years having expired), then 
the ancestor himself would have had but three years. In this act as in the 
British acts, from which it was doubtless borrowed, the right is saved to a 
tenant, having disability at the time of the adverse possession commenced, or 
to the ancestor of a line of inheritable heirs, such ancestor first acquiring 
the right and being under disability at the time of the acquisition; but no 
notice is taken of the disability of any "heir" in the succession to the right 
from such ancestor in any of the acts, and in our statute the legislature 
expressly declares that their object in passing the act is "to prevent the 
expectation of heirs leaving much land unpossessed and titles perplexed."

The argument submitted by us on the operation of the statute, will be 
supported by the reasoning of the majority of the Court in Stowell v. Zouch, 1 
Plowden, 355—which was a case arising under the statute of 4 Henry VII., chap. 
24, before referred to, and by Doroure v. Jones, 4 Term, 300.

It is laid down as law expressly by the King's Bench, in Doe v. Jessup, 6 
East, 80—that the disabilities of successive tenants are not within the saving 
of 21 James I., and it is held by them the second being heir of the first 
tenant must bring suit within ten years of the first tenant, twenty years in 
all having expired.

There is a case, 4 Taunton, 326, Cotterell v. Dutton, where, as in Doe v. 
Jessup, the demandant did not bring his action (a formedon) until more than 
ten years after his non-disability ceased. The Court are reported in Cotterell 
v. Dutton, to say, that the ten years do not run at all where there is a 
continuance of disabilities. It will be found in looking into that case, that 
it is very badly reported, that the Court were clear on the point, that the 
demandant was barred by his own laches and non-claim so that they would not 
hear the argument for the tenant, and that although the case of Doe v. Jones 
is found fault with by Lens, counsel for the demandant, the Court in-(330)
timate no opinion that they would overrule it if necessary, and that the 
opinions delivered by the Judges are very short (and as reported), carelessly 
worded; so that this case, in which the Judges give no reason for their 
construction of the proviso in 21 Jac., 1, chap. 16, will not weigh against 
the opinion of the Court of King's Bench, in 6 East, given at length, and 
apparently with deliberation.

The construction we have put upon the statutes, derives great support from the 
opinion of Kent, in Demarest v. Wyncoop, 3 John., c. c. 129, and from that of 
Parsons, in 4 Mass. 182, and from 4 Day, 280 and 300, which decide that the 
cumulative disabilities of one tenant are not protected—and it would seem, 
from the statutes themselves, that it is much more apparent that the 
disabilities of successive tenants are not protected. If we were permitted to 
consult the policy of the law, since the abolition of primogeniture, and 
permitting all the children to take lands by descent, it is more necessary to 
give a rigorous construction to the statute; as titles will be so perplexed by 
the disabilities of numerous tenants, that scarce any length of possession 
will be free from the claim of persons protected by successive and cumulative 
disabilities of some unknown heirs. In the present case, through a succession 
of single heirs, there has been an adverse possession of fifty-three years, 
before the first suit brought, from 1769, and the defendants had purchased in 
fee and been in possession twelve years before 1760. The quiet of titles is a 
sufficient answer to the many supposed cases of hardship, and the heir of a 
disabled person is under no greater hardship than the heir of a person not 
under disability, against whom the statute does operate confessedly, although 
the adverse possession commenced one day before his ancestor's death—besides 
the disability of the heir is not absolute in fact, there being almost always 
persons interested to take care of his rights, and the eviction of a purchaser 
for full price after sixty-seven years improvement, is one of no small 
hardship nor will it be of infrequent occurence if the statute (331) be 
extended by equitable construction to save the disabilities of sucessive 
tenants.

Taylor, C. J.—Having formerly given an opinion in this case, which I do not, 
on reflection, see sufficient reason to change, I can only refer to it. I 
still think that the deed contains nothing more than personal covenants, and 
no one of them could have the effect of rebutting the plaintiffs. On the point 
of successive disabilities, I concur entirely with my brother Henderson. I am 
therefore relieved from the necessity of giving an opinion on the question, 
whether a bargain and sale can, under any circumstances, operate a 
discontinuance. Following in the course of instruction transmitted to us by 
those men who have written on the subject, I should think that if a warranty 
is annexed to a bargain and sale, covenant to stand seised, or release, it may 
produce a discontinuance. Yet, as I have heard no argument on the subject, I 
am not prepared to say, what alteration may have been effected by our 
particular system. In this case, I am of opinion the judgment should be 
affirmed.

Henderson, Judge.—In this case, it is not pretended that the right of the 
defendant is bound, the objections go to the remedy only.

It is objected, first, that the deed of bargain and sale from Michael Hill, 
the tenant in tail to John Hill, of 1746, created a discontinuance of the 
estate tail on account of the warranty attached to it, and that thereby the 
heir in tail is put to her formedon to recover her estate tail, and cannot 
regain possession thereof by entry or action of ejectment.

It is objected, secondly, that the defendant is barred by the statute of 
limitations.

A bargain and sale is a rightful conveyance; the statute transfers the seisin 
of the bargainor to the bargainee; (332) such a seisin, such an estate as the 
bargainor had, is transferred to the bargainee. I speak not as to parties, but 
as to strangers—that is, those not claiming under either of them. A feoffment 
is called a wrongful conveyance, because it passes, even as to the whole 
world, what it professes to pass. It is true, if the feoffor had not the 
rightful estate, the estate which he passed, may be put an end to by him who 
has the rightful ones but it continues till it is put an end to. If tenant in 
tail, therefore, bargain and sell the entailed lands in fee, it is not a 
discontinuance of the entail tail, for that is a separation of the right from 
the state; for the issue in tail claims not from the tenant in tail, but per 
formam doni; he is therefore a stranger to the bargainor, and as to him, the 
bargain and sale passes only an estatefor the life of the bargainor, his 
estate remains still in him, he is not put to an action to recover it, for he 
has not lost it—he may enter, which is the touchstone by which is ascertained 
whether an estate is lost or not; for if the tenant is disseised, and has not, 
by a descent or otherwise, lost his right of entry, he may compel the lord to 
avow upon him, and in all respects recognize him as his tenant, as one having 
an estate; nor can he, so long as his right of entry remains, at his election 
throw off his estate, the lord may avow upon him as his tenant, and compel him 
to perform his services. And his right of entry will support a contingent 
remainder dependant on his estate as the precedent freehold, and as the issues 
in tail after the death of the bargainor may enter (which is not disputed by 
any one), it proves beyond a doubt, that the estate tail is in him, and not in 
the bargainee, that is, that the bargainee has no estate of any kind, for 
there cannot be two persons on the same estate at the same time, holding 
adversely; there may be titles innumerable, but more than one estate at the 
same time there cannot be; and if it is in the issue in tail, it is not in the 
bargainee. There is then no separation of the right from the estate, they both 
are united in the issue, there is no discontinuance. (333) These principles 
are not controverted by a single writer that I know of. But a feoffment made 
by a tenant in tail, is a discontinuance; for a feoffment passes not only what 
the feoffor can rightfully pass, but what it professes to pass. The estate is 
therefore in the feoffee, and if in him it is not in the issue in tail, who 
has nothing but a right to the estate tail. There is a separation of the right 
from the estate, there is a discontinuance, and if a warranty is added to the 
feoffment, and it descends on him who is issue in tail, as heir of the 
warrantor, unaccompanied with fee simple assets, equal in value to the 
entailed lands, the issue in tail is barred by means of the warranty and 
assets combined—not upon principles of strict right, but of policy and 
convenience, for the sake of quiet and repose, to avoid circuity of action. 
The discontinuance does not affect the right, but affords to the party an 
opportunity of showing that which does. That the warranty and assets form no 
bar to divest, is clearly proven by this: If the issue in tail should enter, 
an action cannot be sustained against him on the warranty and assets; and even 
where there is a discontinuance, and the entry of the issue unlawful, yet if 
the feoffee brings a writ of right, in which action the true right is tried, 
the issue will prevail; which proves, that it is the avoidance of circuity of 
action which forms the bar. This accounts for such expressions as those to be 
found in all books, that it works a discontinuance— that it amounts to a 
discontinuance—if it only barred it—it is not one of itself—if it is not one 
of itself, it is made so by construction for particular purposes—when those 
purposes are answered, or when they were never active—the thing is as it is—it 
is itself.

I will next endeavor to show, that it derives no aid from the warranty in 
discontinuing the estate; a warranty is a covenant annexed to an estate. 
Without an estate there cannot be a warranty. When no estate passes by a deed, 
and the grantee had no estate before, the warranty is a nullity. If an estate 
is made to a man for life, with (334) a warranty to him and his heirs forever, 
the warranty determines with the life estate. A warranty is that which 
protects the estate, it entwines itself around it, and must fall to the ground 
with it. It is true, that it is not necessary that a warranty should be 
annexed to a deed which passes, or even professes to pass an estate, even 
right, provided the warrant has at the time an estate to which the warranty 
can attach itself; it may have passed from the warrantor before, or even from 
a perfect stranger.

It may be now safely asked, does the discontinuance arise from the warranty or 
bargain and sale, or both combined? It does not arise from either separately, 
and there is no estate in the bargainee after the bargainor's death, with 
which the warranty can combine or unite; in truth, it cannot be a 
discontinuance, unless we entirely change the nature of the thing. I am not 
unapprised of what is said by Chief Baron Gilbert in his Tenures, on this 
subject; but with deference to the learned Judge, I think he is mistaken. Let 
his remarks pass for as much as his argument is worth. He says, that the 
statute de donis, by prescribing the action for formedon, intended that the 
issue in tail should be put to his action, and if so, I have already admitted 
it as a discontinuance, for then there is a separation of the right from the 
estate. This is a strained construction, entirely unwarranted either by the 
letter or spirit of the act. It is true the formedon is prescribed; but that 
is where the issue has lost the estate, and seeks to recover it, not where he 
has not lost and may enter. It is a remedial act, intended to redress the 
wrongs whioh were committed on those conditional fees; and it would be 
strange, by a forced construction, to deprive them of a right secured to them, 
or if you choose given, de dono, by the statute, this is of entering whenever 
they have the estate. It is further to be observed, that when the statute was 
passed, there was then no conveyance of an estate but those which operated by 
way of transmutation of possession, (335) either such as carried the 
possession and estate with them, or such as recognized a previous possession 
and estate in the grantee.

I am therefore satisfied, that a warranty attached to an estate, created by a 
bargain and sale, made by a tenant in tail, is not a discontinuance, nor in 
this country does it work one, it does not work one for the inconvenience is 
the other way, for if she has right, and a discontinuance, if worked against 
her, she cannot enter, she cannot bring an action of ejectment; for when she 
cannot enter she cannot bring ejectment; let her bring her formedon it is 
said, or some other real action. I should ask where, before what judge, what 
attorney shall she employ, what clerk apply to for process, for there is not a 
man in North-Carolina who ever brought such an action as lawyer, or tried one 
as judge, or issued process as clerk, or was present when one was tried, or 
knows any thing about the manner of proceeding, and all these difficulties the 
defendant shall encounter, rather than put the plaintiff to his action, upon 
the warranty against the heirs or executors of, I will add, Michael Hill; and 
although in this particular case, there would be great difficulty in reaching 
the assets of Michael Hill, from the great length of time, if he left any, and 
it does not appear that he did, yet the abstract question is now before us, 
and if it is a discontinuance in this case it is so in all. I mean not to 
express an opinion whether any of these old real actions can now be brought, 
it is sufficient in settling a question of convenience, that these 
difficulties are to be encountered. In truth, it would be a more mockery of 
justice to say to the defendant, you have a right, but for tne convenience of 
a person who does not show as yet that he has any title, you must resort to 
some of those old remedies. We must conclude that either she has great 
demerits or that her adversary has great merits. The point made by her counsel 
open the effect of her late recovery in ejectment against the now plaintiff, 
to-wit: that she is remitted thereby to her former or (336) rather better 
estate, were it necessary to express an opinion on it, I should say that she 
is not, for if a person has lost the right of entry, by any means acquires a 
term for years in the land, there still remains a tenant of the freehold to 
answer to his action, the law is not reduced to the dilemma of saying either 
that he must abandon his right or sue himself, there still remains 
notwithstanding the term of years, a freeholder against whom he may bring his 
action, which puts an end to the claim for a remitter.

On the second point, the statute of limitations, I think that the English 
authorities as far as they go, even on the construction put on the statute of 
James, which is somewhat different from our statute, are in favor both of 
cumulative and successive disabilities. I know of no case in point, for the 
question did not arise either in the case of Doe v. Jessup, 6 East, 89, or in 
Cotterell v. Button, 4 Taunton, 826, in both those cases, more than ten years 
had elapsed after the disabilities had ceased; but it must be admitted, from 
what was said by the Court in the case of Doe v. Jessup, that the disability 
of the plaintiff would have been disregarded. Although the right had descended 
from an ancestor who had been under a continued disability, yet in the case of 
Cotterell v. Dutton, the whole Court expressed themselves in very decided 
language to the contrary. Chambre, Justice, saying, that the ten years do not 
run during the disabilities, and Lens, Sergeant, who argued for the plaintiff, 
said that the case of Doe v. Jessup was decided contrary to the apprehension 
of the profession. In Stowell and Zouck (Plvwden), it was decided, after much 
argument, and not without a diversity of opinion on the bench, that when the 
statute begins to run, it continues to do so, notwithstanding any supervenient 
disability. If supervenient disabilities are entirely disregarded, the statute 
would run over them whether it had commenced running before they arose or not. 
The maxim would then be, that the statute disregarded all supervenient 
disabilities—not when it begins to run it continues to run, regardless of 
(337) such disabilities. The maxim as it stands, presupposes a time when there 
was no disability; it then commences and having commenced it continues, for to 
prevent the operation of the enactment there must be a disability at the time 
the cause of action accrued. If there then was, the time allowed in the 
saving, looked to the removal of the disability; for disability, and not the 
lapse of time, was regarded in the saving—the lapse of time had been provided 
for in the enactment. To show that disability, and not time, was regarded in 
the saving, a person who was only one day old when the cause of action 
accrued, has the same period after full age to assert his claims, as one who 
was twenty years and eleven months old. To any one who will read the case of 
Stowell v. Zouch (and that case has never been charged with favoring 
disabilities—it has indeed been many times struggled against on the other 
side), will perceive, I think, that the infant heir would not have been 
barred, had not the statute commenced during the time of his ancestor, that 
is, at one period after the cause of action accrued, his ancestor was not 
under any disability; the time in the saving then began to run. and but for 
that, the unanimous opinion of the Court would have been the other way; and 
from analogy to the common law on the subject of disabilities, I think the 
Court would have been well warranted in such opinion.

At common law, a feme sole of full age is disseised--and then taketh husband, 
and a descent is cast, neither she and her husband, nor she after his death, 
shall enter on the heir of the disseisor—for before her marriage she was under 
no disability, and might have entered. But if an infant feme be disseised, and 
before full age take husband, and then descent is cast, she shall after 
discoverture, enter upon the heir of the disseisor, and so may her heir if she 
die during her coverture, Coke Lit. 246. It is admitted, that the analogy is 
not perfect, but it is sufficiently so to warrant the Courts in saying, that 
disability, and (338) not time, is regarded in the saving of the statute.

The case of Stowell & Zouch, was decided on the saving in the statute of 
fines, and it was never formally applied, I believe, to the statute of James 
until the time of Lord Kenton, 4 Term, and in the case of East, it was charged 
by one of the Court, that the words or death, was inserted in the statute of 
James, which is not in the statute of fines, and that it was inserted in the 
statute of James to do away all doubt, but even those expressions had no 
effect in the case of Cotterell v. Dutton. They are not in our statute, the 
statute of James also saves the right to the heirs, ours does not, it is given 
to them by construction, and very properly, for it surely could not be 
intended to make the right purely personal, and if it is right to modify it by 
construction in one particular, it is in another; it has been modified by 
construction in another part, and universally approved of: By the words of the 
statute, an infant has three years after arriving at full age, to make his 
entry or claim, should he die before he arrives at full age, is his right lost 
to his heir, or is the defendant never to be quieted in his possession? The 
case mentioned in the statute, arrival at full age, has never occurred—yet it 
was never doubted but that his heir, if under no disability, had the balance 
of three years yet to run to assert the claim, and if under disability, I have 
endeavored to show three years after the disability was removed.

The first heir in tail after the death of the ancestor, who aliened Michael 
Hill, and who was the last person seised of the estate in tail, being when the 
right devolved on him an infant, and that heir dying before the disability was 
removed, leaving an infant heir, who became covert before full age, who having 
brought her action within three years after her discoverture, I am of opinion 
that she is not barred by the statute of limitations—that is, that she comes 
within the saving of the act.

I shall not examine the question, whether the (331)) deed of 1746 contains a 
pure warranty, or only a covenant? This opinion is given on the supposition 
that it is a warranty; but on this point I express no opinion.

I have said, in the foregoing part of this opinion, that he who has the right 
of entry has the estate, and by a disseisin, the disseisee does not lose the 
estate. I should have added, unless at his election, which he makes by 
bringing an action for it—for by demanding the estate of another, he allows 
that the other has it, and thereby admits that he has it not himself.

I have viewed this case as if there was a warranty in the deed; whether the 
covenant amounts to one, or not, I have not deemed necessary to examine.

By the Court.—Let judgment be entered for the defendant.

------------------
* Note.—After the argument, one of the Court referred the counsel for the 
plaintiff to the case of Doe v. Westwidge, 4 Maule & Selwyn, 181. It is an 
authority to show that the covenant in the deed of Michael Hill is an ancient 
warranty, and not a covenant for quiet possession, and further, that a 
warranty in a release, a conveyance operating without warranty to pass the 
right of the releasor only, will by force of the warranty create a 
discontinuance of an estate tail.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

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