period, to explain what is meant by an adverse possession, we find the doctrine asserted, that a possession cannot be held adverse to the title of him from whom it is derived. This doctrine I hold to be altogether untenable; and this sentence alone, though every other idea be put out of the case, would, in my view of the subject, entitle the plaintiffs here to a reversal of the judgment. The title acquired by a vendee is most peculiarly adverse to that of him from whom he purchases. But under what view of the subject could these plaintiffs be held mere tenants at will to the parties plaintiffs below? or their possession any other than an adverse possession? They did not hold as the agents or representatives of those through whom they derived the title. From the time of entering into possession, they held in virtue of the estate in themselves, and not that of any other. If the idea is, that the proprietaries might at any time have entered upon them, and in that sense, the estate was held at their will, the answer is, that is one of the very cases that the act of limitation provides against; for it takes away that volition in the proprietary, unless the entry be made in twenty-one years. But the fact was not so; these tenants did not hold at the will of the proprietaries, for all those who acquired under the common terms were taken under the care of the law, and we find act upon act to regulate the proceedings of the proprietary towards them. The right to turn them out by the shoulders never existed in the proprietary; he must have resorted to his entry, or suit, to recover possession; they were 1824. Kirk V. Smith Kirk V. Smith. 1824. considered as holding a freehold, and the law did not entitle him to resume possession arbitrarily. It was the doctrine of that State, that his rights were restricted to the payment of the purchase money and quit-rents, at least until he tendered a return of advances and improvements. It cannot be imagined that the reservation of quit-rents converted the purchasers into tenants at will; neither principle nor authority would sanction the idea. Nor can I perceive any thing either in the legal relations or contracts of these parties, that could sustain the doctrine that the possession of the defendants was permissive, and identified with that of the proprietary. A tenancy at will, must be the result of contract, express or implied; but a freehold granted on condition, is not converted by forfeiture into a tenancy at will. Yet, had it been otherwise, surely lapse of time, general acquiescence, and received opinion, ought to be held to produce the same cansequences as to the tenure of property in this State, which were produced by the same causes in England upon the tenure by copy of court-roll. That which was in its origin nothing but a tenure at will, retains now nothing of its origin but the formula which attests its history. To concluie let the estate of these defendants below be considered as either void or voidable, and I sec not how the act of limitations is to be escaped by their antagonist. If voidable, on failure to pay the purchase money, the entry is expressly taken away by that statute; and if void, they cannot be reduced lower than to the grade of tenants by sufferance, with regard to whom entry and suit was just as indispensable, as with regard to any other tenure. (Co. Lit. 57.) In the application of the doctrines on the statute of limitations, the incidents to the two tenures ought not to be confounded. Judgment affirmed. 1824. Taylor V. Mason. [DEVISE. CONDITION PRECEDENT OR SUBSEQUENT.] ROBERT J. TAYLOR and others, Appellants, V. JOHN THOMPSON MASON, Respondent. R. B., being seised of lands in Maryland, made three instruments of writing, each purporting to be his will. The first, dated in 1789, gave his whole estate to his nephew, J. T. M., after certain pecuniary legacies to his other nephews and nieces. In the second will, dated in 1800, the testator gave his whole real estate to J. T. M., during his life; and after his death, to his eldest son, A., in tail, on condition of his changing his name to A. Barnes, with remainder to the heirs of his nephew, J. T. M., lawfully begotten, for ever, on their changing their surnames to Barnes. The third will, which was executed after the others, and probably in 1803, after some small bequests, proceeded thus: "I give the whole of my property, after complying with that I have mentioned, to the male heirs of my nephew, J. T. M., lawfully begotten, for ever, agreeably to the law of England, which was the law of our State before the revolution, that is, the oldest male heir to take all, on the following terms: that the name of the one that may have the right, at the age of twenty-one, with his consent, be changed to A. Barnes, by an act of public authority of the State, without any name ́added, together with his taking an oath, before he has 1824. Taylor V. Mason. possession, before a magistrate of St. Mary's county, and have it recorded in the office of the Clerk of the county, that he will not make any change, during his life, in this my will, relative to my real property. And on his refusing to comply with the above mentioned terms, to the next male heir, on the above mentioned terms; and so on, to all the male heirs of my nephew, J. T. M., as may be, on the same terms; an all of them refusing to comply, in a reasonable time after they have arrived at the age of twenty-one, say, not exceeding twelve months, if in that time it can be done, so that no act of intention to defeat my will shall be allowed of; and on their refusing to comply with the terms above r..ntioned, if any such person may be, then to the son of my late nephew, J. T. M., named A. T. M., on the above mentioned terms; and on his refusal, to his brother, J. T. M.; and on his refusing to comply with the above mentioned terms, to the heirs male of my nephew, A. B. T. M., Jawfully begotten, on the above mentioned terms; and on their refusal, to the male heirs of my niece, Mrs. C., lawfully begotten, on their complying with the above mentioned terms; and on their refusal, to the daughter of my nephew, J. T. M., named Mary, so on to any daughter he may have or has." The testator then appoints J. T. M. his sole executor, with a salary of 1600 dollars per annum, for his life, and adds, " and my will is, that he shall keep the whole of my property in his possession, during his life." He then empowers his executor to manage the estate at his discretion, to employ agents, and to pay them such salaries as he shall think proper; to repair the houses, and build others, as he may think necessary; to reside at his plantations, and to use their produce for his support; and adds, "after which, to be the property of the person that may have a right to it, as above mentioned." Held, that the conditions, annexed to the estate devised to the oldest male heir of J. T. M., were subsequent and not precedent, and that, consequently, the contingency on which the devise was to take effect, was not too remote, the estate vesting on the death of J. T. M.; to be devested, on the non-performance of the condition. Quare, Whether J. T. M. took an estate tail? Quare, Whether the last will revoked those which preceded it? APPEAL from the Circuit Court of Mary land. The bill in this cause was filed in behalf of Taylor v. one of the coheirs of Richard Barnes, deceased, 1824. and her children; and claims an account of the profits of his estate, from the defendant, J. T. M., also a co-heir, who claims and holds possession of the estate, under the will of the said Richard. Three instruments of writing, purporting to be the will of the testator, all of them properly authenticated, were exhibited in the record. The first, dated on the 31st day of October, in the year 1789, gives his whole estate, after pecuniary legacies to his other nephews and niece, to the defendant, J. T. M. In the second will, which is dated the 16th day of July, 1800, the testator gives his whole real estate to J. T. M. during his life, and after his death to his eldest son, Abraham, in tail, on condition of his changing his name to Abraham Barnes, with remainder to the heirs of his nephew, J. T. M., lawfully begotten, forever, on their changing their surname to Barnes. The third will is without date, but is proved, by its contents, to have been executed after the others, probably in the year 1803. After some small bequests, the testator says, "I give the whole of my property, after complying with what I have mentioned, to the male heirs of my nephew, J. T. M., lawfully begotten, for ever, agreeable to the law of England, which was the law of our State before the revolution, that is, the oldest male heir to take all, on the following terms: that the name of the one that may have the right, at the age of twenty-one, with his consent, be changed to Abra Mason. |