Bright v. Boyd. by the true owner, Now, in the present lands of the testator, which is applicable to the present case. It is, that where a bonâ fide possessor or purchaser of real estate pays money to discharge any existing incumbrance or charge upon the estate, having no notice of any infirmity in his title, he is entitled to be repaid the amount of such payment seeking to recover the estate from him. case, it cannot be overlooked, that the now in controversy, were sold for the payment of his just debts, under the authority of law, although the authority was not regularly executed by the administrator in his mode of sale, by a non-compliance with one of the prerequisites. It was not, therefore, in a just sense, a tortious sale; and the proceeds thereof, paid by the purchaser, have gone to discharge the debts of the testator, and so far the lands in the hands of the defendant (Boyd) have been relieved from a charge, to which they were liable by law. So, that he is now enjoying the lands, free from a charge, which in conscience and equity, he and he only, and not the purchaser, ought to bear. To the extent of the charge, from which he has been thus relieved by the purchaser, it seems to me, that the plaintiff, claiming under the purchaser, is entitled to reimbursement, in order to avoid a circuity of action, to get back the money from the administrator, and thus subject the lands to a new sale, or, at least, in his favor, in equity to the old charge. I confess myself to be unwilling to resort to such a circuity, in order to do justice, where upon the principles of equity the merits of the case can be reached by affecting the lands directly with a charge, to which they are ex æquo et bono, in the hands of the present defendant, clearly liable. These considerations have been suggested, because they 1 Dig. lib. 6, tit. 1, 1. 65. Pothier Pand. lib. 6, tit. 1, n. 43. Pothier De la Propriété, n. 343. Webster v. Gilman. greatly weigh in my own mind, after repeated deliberations on the subject. They, however, will remain open for consideration upon the report of the master, and do not positively require to be decided, until all the equities between the parties are brought by his report fully before the Court. At present, it is ordered to be referred to the master to take an account of the enhanced value of the premises, by the meliorations and improvements of the plaintiff, and those, under whom he claims, after deducting all the rents and profits received by the plaintiff, and those, under whom he claims; and all other matters will be reserved for the consideration of the Court upon the coming in of his report. HENRY WEBSTER V. CALEB GILMAN. A mere non-possession of real estate by the devisee under a devise, short of the period, prescribed by the Statute of Limitations to bar a right of entry, does not amount to a positive renunciation or disclaimer of the devise, or to proof thereof, on the part of the devisee. Quare, Whether by our law, any renunciation or disclaimer, not by deed or matter of record, would be an extinguishment of the right of the devisee. At all events, it should be evidenced by some solemn act or acknowledgment in writing, or by some such open and positive act, as will prevent all future cavil, and operate as a quasi estoppel. A tenant in fee simple cannot maintain a writ of entry, founded upon his supposed seisin of a freehold only; for he has no such estate separate from the entire fee. But he must count according to the fact, upon his own seisin in fee simple. The same is the case with a tenant in fee tail; and his appropriate remedy is by a writ of formedon, and not by a writ of entry. Where a devisee of a life estate makes a conveyance thereof, at a time when she is disseised of the premises, the conveyance is inoperative. Where a devisee in remainder in fee purchases the life estate, he becomes tenant in fee simple, and the life estate becomes merged in the remainder. Where there is a devise to A. for life, remainder to B. and C., to preserve Webster v. Gilman. contingent remainders, remainder to the issue of A. in tail male; there, if A. should renounce or disclaim the life estate, the subsequent remainders to B. and C. would immediately take effect, and so preserve the contingent remainder to the issue of A. in tail male. WRIT of entry, dated the 15th of February, 1838. The demandant, describing himself as an alien, subject of Great Britain, and averring, that he had never been a citizen of the United States, or any part of the same, in his count demanded a certain tract of land, situated in Mercer, in the County of Somerset, and State of Maine, being part of the fifteen mile lot D. 2, formerly a portion of the Plymouth Company Proprietary Lands on the Kennebec, of which the demandant claimed to have been seised in his demesne as of freehold within twenty years, and complained of a disseisin done by the defendant. The tenant pleaded, that he did not disseise, &c.; and upon that, issue was joined, and the cause was committed to the jury. At the trial, the demandant proved, that lot D. 2, which, it was admitted, embraced the demanded premises, was originally granted and assigned by the proprietors of the Kennebec purchase, whose title was deduced from the ancient colony of New Plymouth, to Florentius Vassal, of London, his heirs and assigns, December 12th, 1770, according to a copy in the case, taken from the Proprietary Records, Book 3d, page 22, in pursuance of a vote extracted from the Records, in same volume, pages 29-55. Florentius Vassal made his will, disposing of this, among other portions of his estate, September 20th, 1777, and he died in the course of the following year. The will was proved (as appears by the copy filed in the case) in the Prerogative Court of Canterbury, on September 14th, 1778; and an exemplification of it was exhibited, which had been filed and recorded in the probate office for the County of Kennebec, under the law of the State of Maine. Webster v. Gilman. By this will, the testator devised certain plantations in the Island of Jamaica, and also all his "lands, tenements, and hereditaments whatsoever, situate and being in New England, in North America, and all his estates, right, and interest therein," to the Right Hon. Hugh Lord Viscount Falmouth, the Right Hon. William Wildman, Lord Viscount Barrington, and Charles Spooner, Esquire, and their heirs, to the uses, and upon the trusts, and for the interests and purposes, and with, under, and subject to, the powers, provisoes, and declarations thereinafter limited, declared, and expressed, as to, for, and concerning one of the aforesaid plantations, called Sweet River, &c., and also as to, for, and concerning all my lands, tenements, and hereditaments whatsoever, situate, lying, and being in New England aforesaid, as follows. To the use of his son Richard Vassal and his assigns for and during his life; and from and after the determination of that estate by forfeiture or otherwise, during the life of the said Richard, to the use of the said trustees and their heirs, during the life of the said Richard, in trust to preserve the contingent uses and estates thereinafter mentioned from being defeated or destroyed; and for that purpose to make entries and bring actions, as occasion shall be or require, &c.; and from and after the death of the said Richard, to the use of all and every the son and sons of the body of the said Richard, begotten or to be begotten, to be equally divided between or among his said sons, if more than one, share and share alike, and they to take as tenants in common, and not as joint tenants, and the several and respective heirs male of the body and bodies of such son and sons, there being more than one; and on failure of such issue male of his or their body or bodies respectively, then as to the part and share or parts and shares of and in the said premises, as well originally belonging to, or accruing, or devolving upon such son or sons by survivorship, Webster v. Gilman. the same shall, so often as it shall happen, go and remain unto and to the use of the survivors and survivor and others and other of the said sons, and to the heirs male of the bodies and body of such surviving and other sons, if more than one, to take in equal shares as tenants in common, and not as joint tenants, and if the issue male of all such sons save one shall fail, or if there shall be but one son, then to such or remaining son and the heirs male of his body issuing; and for default of such issue, to the use of William Dickenson and William Smith, and the survivor of them, and the executors, administrators, and assigns of such survivor, for the full end and term of six hundred years, to commence and be computed from the failure of such issue male of the said Richard, and thenceforth fully to be completed and ended, without impeachment of waste, upon the trusts for the intents and purposes, and under and subject to the provisoes thereinafter expressed, of and concerning the same term; and from and immediately after the end, expiration, or other soever determination of the said term, and in the meantime, subject thereby and to the trusts thereof, to the use of Elizabeth Vassal, the then only daughter of the said Richard Vassal, and her assigns for and during her life, and from and immediately after the determination of that estate by forfeiture or otherwise, during the life of the said Elizabeth, to the said trustees, Lord Viscount Falmouth, Lord Viscount Barrington, and Charles Spooner, and their heirs, during the life of the said Elizabeth, in trust by the ways and means before mentioned to preserve the contingent uses and estates thereinafter mentioned from being defeated or destroyed, &c. &c,; and from and immediately after the decease of the said Elizabeth, to the use of all and every the son and sons of the said Elizabeth to be begotten, to be divided amongst such sons, if more than one, share and share alike, and they to take as tenants in common, and not as joint ten |