66 having been made to the lessor of the plaintiff, though there is sufficient to presume that Axton himself had none. Then it is allowed, that the necessity for livery of seisin was superseded, if there was any possession under the defendant; and to shew such possession, the words of the lease are referred to, stating that the lands" were in "the tenure and occupation of Chamberlain "and his undertenants." Now Lord Coke, Co. Litt. 352. b. says, indeed," neither doth "a recital conclude, because it is no direct "affirmation;" but from Rolle's Abridgment, 872, it would appear that there is a distinction between a general and a particular recital: and though a general recital will not work an estoppel, yet the recital of a particular thing will have that effect; and here is a particular recital. Taking all the circumstances of this case into our consideration, we are all of opinion that this nonsuit should be set aside; I myself for the reason I have now stated;" and the rule for a new trial was made absolute. To resume the subject. Since Littleton wrote his invaluable Treatise on Tenures, there have been successive decisions, all tending to the conclusion, that the acts of parties shall be construed in such manner that they may be operative rather than fail of effect: thus a lease by tenant for life, and by a remainder-man in fee, is in the first place the lease of the tenant for life and the confirmation of the remainderman, and after the death of the tenant for life, is the lease of the remainder-man, and the confirmation of the tenant for life (z). So, a feoffment by a tenant for life, and a remainder-man by deed, is the feoffment of tenant for life, and the conveyance or confirmation of the remainderman, since the remainder may pass by the operation of a deed as a grant; but a feoffment of the same persons without deed, is the feoffment of the remainder-man, and the surrender of tenant for life, inasmuch as the remainder could not pass from the remainder-man for want of a deed of grant, unless it passed by the operation of the livery (a). Instances of this sort might be multiplied to any extent. The point, however, which seems most relevant, is that which concerns the doctrine of feoffments. A man who enters, claiming under a void feoffment, or a void grant, is considered as entering by disseisin (b); as the only means of giving an incipient title, to become a complete title eventually under the doctrine of descents which toll entries, warranties, and the like; or the more mo (2) 1 Inst, 45. a. (a) Bredone's Case, 1 Rep. 76. dern doctrine by which the title may be rendered complete under the operation of a fine and non-claim, or under the statute of limitations. As often as a man enters with an intention to receive livery of seisin, ́ he must be in possession, either by trespass, or by disseisin, or without any wrong; and as an adverse possession in him would intercept and defeat the right of the owner to make a feoffment without first ejecting the intended feoffee, the law treats the intended feoffee as neither tenant, disseisor, or possessor. It assumes that his possession is the possession of the real owner, the intended feoffor, or is merely a permissive occupation. Nor would it be right to dismiss the section of Littleton which has called forth these observations, without remarking that the rightful owner might have treated the person thus claiming to occupy at will as a trespasser, or as a disseisor at election; for every person who enters wrongfully, is necessarily a trespasser, and the freeholder may at his election treat the trespasser as a disseisor (c), and as the trespasser cannot qualify his own wrong (d), every disseisin, (except, perhaps, as already stated, the particular and special case of a disseisin of the tenant of a particular estate, under a claim (c) Blunden v. Baugh, Cro. Car. 302. (d) Inst. 271. a. of his es'a e only,) is necessarily a disseisin of the fee-simple, and the disseisor is capable of a release from the disseisee in extinguishment of the right. Littleton must be read merely as putting a particular case, with special circumstances, and drawing his conclusion upon these circumstances, and for the sake of illustrating his doctrine by a distinction: and the case must be judged of by the facts as stated, without giving to them a new or different application, or allowing any of the inferences or presumptions of law. In this view of the case, the point of Littleton is correct, that a man who has merely the occupation of lands, without any estate, is not capable of a release. The context of Littleton sufficiently demonstrates, that in the section which has given rise to these observations, the author was treating of the possession of a wrong doer, and not of a tenant by suffer ance. Another point to be collected from the same section is, that no one can, by claiming to hold at will, become tenant at will without the consent and acceptance of the owner, for the tenancy must be at the will of both parties (e). (e) 1 Inst. 55, a. The text of Littleton is also full and explicit on the point, that a person who has merely a right of entry or of action, is not capable of this species of assurance. The language of this text writer (ƒ) is, " If a "lease be made to one for a term of life, reserving to the lessor and his heirs a "certain rent: if the lessee be disseised, and "after the lessor release to the lessee and his heirs, all the right which he hath in the "land, and after the lessee entereth, albeit . " "in this case, the rent is extinct, yet nothing "of the right of the reversion shall pass. The rent will be extinct, because of the privity of contract, for the rent is payable notwithstanding the disseisin, since there is not any eviction under an elder title; but the disseisin of the lessee, is a disseisin of the lessor, so that the lessor has no estate to grant, nor the lessee any estate capable of enlargement. It may in this place be noticed, that every general disseisin acquires a fee-simple by wrong. Hence Lord Coke (g) has this passage. " A man disseiseth tenant for life, to the use of "him in the reversion, and after he in the "reversion agreeth to the disseisin, it is "said, that he in reversion is a disseisor in "fee; for by the disseisin made by the stran (f) Litt. sect. 456. (g) 1 Inst. 180. b. |