APRIL TERM, 1750.
Charles Carroll’s Lessee against John Llewellin.
EJECTMENT for a tract of land called. Brambly-' Plantation, or Gerard’s Brambly, lying in Saint Mary’s County. Several bills of exceptions were taken at the trial of this cause:
1. The plaintiff offered evidence, that Justinian Gerard\ on the 4th of August, 1682, made his last will and testament, whereby he devised to his wife Sarah and her heirs the land in question, which will was signed, sealed, delivered and published in the presence of five witnesses, who signed their names to the will. To which will was the following probate: “ Charles, absolute Lord Proprietary “ of the Province of Maryland, and Avalon, Lord Baron 41 of Baltimore, &c. to all persons to whom these presents 5£ shall come, &c. Know ye, that before our Judges for “ probate of wills and granting administrations, the last will and testament of Capt. Justinian Gerard, late of “ Saint Many’s County, deceased, was in eommon form “ proved, which will is to these presents annexed, and ad- “ ministration of all and singular the goods, &c. was grant- “ ed and committed unto Sarah his relict, having first “'taken her oath,” &c. Signed by Henry Darnall and ilh-Mxtnt Hill, Judges or Commissaries-general for probate oí wills, with the Commissary’s seal affixed thereto, and dated the 11th January, 1688. The defendant prayed the direction .of the Court to the Jury, that the will not being proved by the witnesses thereto, as the statute of frauds and perjuries directs otherwise, or in any other manner than as mentioned in the letters testamentary, is altogether insufficient in law to prove» the right of Sarah Gerard and her heirs, and to prove the issue on the part of the plaintiff. But the Court gave their opinion, that the will was good and sufficient evidence to be read to the July. To this opinion the defendant excepted.
*1632. The defendant offered in evidence a deed of gift from Thomas Gerard to his son Justinian, which deed is dated the 27th of May, 1664, and conveys unto the said Justinian Gerard the tract of land called Brambly Plantation,, or Gerard's Brambly, “ To have and to hold, &c. to Ci the said Justinian Gerard, his heirs, to his and their pro» a per and peculiar uses and behoof for ever, thereof and a therewith to do, use and dispose at his and their will and “ pleasure, as of his and their proper estate. Nevertheless, u it is the true intent and meaning of these presents, that in “ case the said Justinian Gerard shall happen to die with-u out issue, either male or female of his body lawfully be- “ gotten, that then the above land shall revert unto the “ heirs of him the said Thomas surviving.” The defendant prayed the direction of the Court to the Jury, that the said deed from Thomas Gerard to his son Justinian, conveyed an estate tail to Justinian Gerard. But the Court gave their opinion, that the deed passed a fee-simple to Justinian Gerard,The defendant excepted to this opinion.
3. The defendant further offered a deed from Justinian Gerard and Sarah his wife to John Llewellin and Robert Foster, dated the 20th July, 1685, which deed, for and in consideration of a jointure to the said Sarah, and for her better and more sure maintenance, and for the natural love and affection which the said Justinian did bear to her, &c. conveys the land in question “ unto the said John Lle- “ zvellin and Robert Foster, their heirs and assigns for u ever, to the uses, intents and purposes, hereafter in these “ presents limited, expressed and declared, and to none “ other use, intent or purpose whatsoever, (that is to say,) il to the use and behoof of him the said Justinian Gerard u and his assigns, for and during the term of the natural “ life of him the said Justinian Gerard, without Impeachment of waste, and after the decease of the said Justitx nian Gerard, then to the only use and behoof of the said i6 Sarah Gerard his tvife, for and during the term of hei- *164“ natural life, for and in the name of her jointure, and in “ full recompense of her. dower and title of dower, which “ she the said Sarah shall or may have of or to the lands, “ tenements or hereditaments of the said Justinian Ge~ “ rard; and after the decease of the said Justinian Gerard “ and Sarah Gerard, then to the use and behoof of the heirs “ of the body of the said Justinian Gerard, and for de- “ fault of such issue, to the use of the said Llewellin and “ Foster, their heirs and assigns for ever, upon this hope, “ trust and confidence, that they or the survivor, or the “ heirs and assigns, &c. shall convey the same to such perec son, &c. as the said Justinian or Sarah (which of them “ shall survive) shall direct.” The defendant prayed the direction of the Court to the Jury, that by that deed the legal estate remains in the trustees, as no conveyance was made by the trustees or their heirs, as the said deed directs. But the Court gave their opinion, that the deed from Sarah and her husband was an execution of the power reserved to her by that deed, and that the legal estate was thereby out of the trustees. The defendant excepted to this opinion. (See an opinion at the end of the case.)
4. The defendant offered to give in evidence a copy .of an enrolment under the seal of the Provincial Court, and attested by the clerk of that Court to be a true copy of a, deed of gift from Thomas Gerard to his son Justinian Gerard, dated the 27th May, 1064, which deed was thus indorsed: “ Thomas Gerard, Esquire, did sign, seal and “ deliver the deed on the other 'side, as his real voluntary “ act and deed, together with possession of the land, in a manner and form as is expressed in the said deed, in “ the presence of us, Thomas Not ley, John Smyth, Thomas a Cukely, John Gee, Claude CornelisonS “ Thomas Notley “ and John Smyth appeared before me and made oath, “ that Thomas Gerard, Esquire, did sign, seal and deliver a the within deed as his act and deed, unto Justinian Ge~ u rard., and gave livery of seisin. Given under my hand “ the 30th day of August, 1664. Sobert SlyeS The plaintiff insisted that this office copy of a deed should not *165be given in evidence to the Jury. But the Court did allow the same to be read to the Jury. The plaintiff excepted to the opinion of the Court.
S. The defendant further offered in evidence an office copy of a patent to Thomas Gerard, the donor above mentioned, dated the 18th July, 1642, for the lands in question. Which patent the plaintiff shewed to the Court and Jury was cancelled by a decree of the High Court of Chancery, an exemplification of which decree, under the great seal of this Province, was offered, as follows;
“ At a Chancery Court held at the City of Saint Mary’s* a the 18th day of June, in the third year of the dominion “ of Charles, &c. Anno Dom. 1678.
u Present,
fThomas Notley, Esquire, Lieutenant-General and Chief-Justice.
Philip Calvert, Esquire, Chancellor.
The William Calvert, Esquire, Principal Secretary.
Thomas Taillor, Esquire.
[.Benjamin Roger, Esquire.
a. His Lordship the Lord Proprietary of this Province, 44 sendeth his writ of scire facias to the sheriff of Saint 45 Mary’s County, which followeth in these words, viz.
“ Whereas we have made inspection into the records of 44 our said Province of Maryland., in our secretary’s office a remaining, wherein it appeareth, amongst other things, u that Cecilius, our late father of noble memory, the 18th ie day of July, 1642, under the great seal of our said Pro» il vince, did grant unto Thomas Gerard., gentleman, a tract u of land, bounding, &c. (as set forth in the patent^) con-u taining 6,000 acres in the whole, or thereabouts, upon M such consideration, and under such rents and provisoes as in the same is expressed and reserved; and for that, “ upon information that the said grant to the said Thomas “ Gerard granted in the lines thereof, doth not compre- *166“ hend above 400 acres of land, but that the lines of the 44 said land are clearly mistaken; and yet, under colour, 44 the said Thomas Gerard in his life-time, and those that 44 claim under him since his death, have held as their own 44 land a very great quantity of land, by which we and our 44 said father have been deceived of our rents for the sur44 plusage lands, more than the 6,000 acres mentioned in “ the said patent; and we being willing that the truth of 44 the premises should be fully discovered, have caused the “ said tract of land to be resurveyed and laid out anew by 44 John Manley, gentleman, deputy-surveyor, under our 44 trusty and well-beloved Baker Brooke, Esquire, our 44 surveyor-general of our said Province, reputed to be 44 passed by the said grant to the said Gerard, deceased, 44 which said deputy-surveyor hath made return of the re-44 survey, under his hand, unto our' said office, that the said 44 tract of land containeth 11,400* acres, by which it is evi44 dent and apparent, that our said father of noble memory 44 hath been deceived in the said grant, and that patent for 44 the same was unduly, illegally, and surreptitiously ob-44 tained to the disinherison of us and our heirs ; and the 44 said Thomas Gerard being deceased, and the possession 44 of the premises being in Justinian Gerard, gentleman, 44 son and heir of the said Thomas, deceased: We there-44 fore command you, that by good and lawful men of your 44 bailiwick, you make known and give warning to the said 44 Justinian Gerard, that he be and appear before us in our 44 Court of Chancery, the 18th day of this instant, June, 44 wheresoever it shall be holden, to shew cause, if any he 44 hath, why the said letters patent for the said land so sur44 reptitiously obtained, ought not to be revoked, annulled, 44 and made void upon record, and the same into our hands 44 be seised, and to do and receive what our said Court 44 shall consider of in this behalf, and in what manner you 44 execute this precept, you make known unto us the day 44 aforesaid, and have you there this writ. Witness our-K self at the City of Saint Mary's, the 17th day of June,
*167in the third year of our dominion, Annoque Domini, “ 1768.
“ At which said 18th day of June, in the year afore- “ said, the same sheriff maketh return of the precept afore- “ said indorsed, That by virtue thereof he had made " known unto Justinian Gerard, before Henry Bonner and “ John Heard, good and lawful men of his bailiwick, that “ he should make his personal appearance here at the day “ and place aforesaid, as by the said precept he was commanded: Whereupon the said Justinian Gerard, being “ solemnly called, appeared by Nehemiah Blackiston, his “ attorney; and whereupon Kenelm Cheseldine, Esquire, “ his Lordship’s Attorney-General, on the behalf of his M Lordship, offered himself against the said Justinian Ge- “ rard, and desired that the patent aforesaid, for the rea- “ sons aforesaid, should be annulled, vacated, and made “ void j and the said Justinian Gerard, by his attorney “ aforesaid, nothing in bar thereof allegeth, but the said “ patent so surreptitiously obtained as aforesaid, to this Court delivered and surrendered: Whereupon, after “ due and mature consideration had and taken of and “ upon the premises, and the said patent and certificate of a resurvey being duly pondered and considered, This “ Court doth order, adjudge and decree the said patent “ and all and singular the entries thereof, to be null and li void to all intents and purposes whatsoever, and that the “ same patent be immediately cancelled in open Court by w the Honourable Philip Calvert, Esquire, Chancellor “ of this Province, and that the entries thereof be vacated a upon record, and the same lands into his Lordship’s “ hands, to be' seised: Which said patent was in open w Court by the said Chancellor cancelled and made void, “ according to the order and decree aforesaid.”
The plaintiff also produced in evidence a patent to Justinian Gerard, the eldest son and heir at law of the aforesaid Thomas Gerard, which patent was dated the 29th June, 1678, and, reciting the grant to Thomas Gerard, and *168the facts set forth in the scire facias, and the decree re«yoking the patent, and that Thomas Gerard had sold out divers parcels of land to sundry persons, notwithstanding the revoking decree, granted the land in question to the said Justinian Gerard.
The plaintiff then insisted, that any estate conveyed by the aforesaid copy of an enrolment under the seal of the Provincial Court, was defeated by the original grant or patent of the said lands being as before, annulled and can-celled. But the Court declared their opinion, that the estate limited by the aforesaid gift was not defeated, but in full force, notwithstanding the vacating the grant. To this opinion the plaintiff excepted.
Verdict for the defendant, and judgment of nonsuit.
Lib. E. J. No. 13. fol. 47.
The plaintiff brought a writ of error to the Court of Appeals; and at May Term, 1753, the Court of Appeals affirmed the judgment of the Provincial Court.
S. Bordley and Dulany, for appellant.
T. Dorsey, for appellee.
The following is an opinion by Wtn. Cooke, Esquire, given many years after this case was decided, when it was in agitation to bring a new ejectment:
Justinian Gerard of Saint Mary’s County, being seised in fee of a tract of land called St. Clement's Manor, by his last will and testament in writing bearing date the 4th of August, 1682, devised the same to his wife Sarah and her heirs for ever. On the 29th July, 1685, the said Jus- ' tinian and Sarah, by a deed indented and enrolled, purporting to bp made as well for and in consideration of a jointure to the said Sarah, and for her better and more sure maintenance and livelihood in time to come, as also for the natural love and affection which the said Justinian had and did bear to her, and for the settling and establishing of the inheritance of the lands and tenements, thereafter men*169tioned, to and in John Llewellin and Robert Foster and their heirs, to the uses, intents and purposes therein specified, did grant, &c. among other things, the said manor to the aforesaid John Llewellin and Robert Foster, and their heirs: To hold the same to them the said John Llewellin and Robert Foster, their heirs and assigns for ever, to the use of the said Justinian and his assigns during his life, and after his death, to the use of the said Sarah-during her life, and after the decease of the said Justinian and Sarah, to the use of the heirs of the body of the said Justinian lawfully begotten, or to be begotten, and for default of such issue, to the use of the said John Llewellin and Robert Foster their heirs and assigns for ever in trust, to make such grants and conveyance of the same, and dispose, distribute and employ the rents, issues and profits thereof to such person and persons, and in such manner and form as the survivor of the said Justinian and Sarah, by his or her will in writing, executed in the presence of three witnesses, or by any other writing subscribed and sealed by him or her in the presence of three witnesses, shall nominate, declare or appoint, and for default of such appointment, the trustees aforesaid to- convey the same to the right heirs of the said Justinian for ever, with power reserved to the said Justinian to make leases, alter, or revoke all or any of the uses aforesaid.
In 1687 Justinian died without issue, and without revoking the uses aforesaid, or making any new will; Sarah survived and intermarried with Michael Curtis. On the 29th Mg.y, 1710, the said Michael and Sarah, by deed indented and enrolled for a valuable consideration, reciting the will aforesaid, and the devise of the premises aforesaid to the said Sarah in fee, conveyed the same to Henry Peregrine Jowles and his heirs, to the use of the said Curtis and wife and their heirs for ever, and executed the same in the presence of three witnesses. On the 30th May, 1710, Jowles reconveyed (by deed-poll not acknowledged) to the said Curtis and wife in fee, of whom Charles Can rail, father of Charles Carroll, Esquire, purchased and con-*170turned in the possession thereof, by the actual occupation of part and paying quit rents for the whole, till he was lately ousted of part by John Llewellin of Saint Mary’s County, a descendant (I suppose) of Llewellin, before-mentioned, who, till his said entry, had never been in possession of any part of the said land for upwards of years.
From the above state of facts several material questions, or rather objections, may be made to Mr. Carroll's title.
1. If the deed from Gerard and wife to Llewellin and Foster, is not a revocation of the will aforesaid of the said Justinian Gerard.
2. Whether the consideration expressed in the said deed is sufficient to raise the uses therein mentioned.
3. If it is, whether the power of appointment therein given, (to the said Sarah, who eventually survived Justinian,) be well pursued agreeable to the intention of the parties.
4. If such appointment of the use be well made, -whether the possession be executed to the use, or whether the legal title still remains in the heirs of the trustees aforesaid. And
5. Whether the long possession of Mr. Carroll be a sufficient title for him to support an ejectment, if it should appear that he has not a legal right to the said tract of land, called St. Clement's Manor.
I am of opinion, as to the first quere, that the said deed from Gerard and wife to Llewellin and Foster, is in construction of law a revocation of the will of the said Justinian Gerard. Every will is ambulatory and of no efficacy till the death of the party; it may be added to, revoked, in the whole or in part; in short it is considered only as an instrument declaratory of the intention of the testator as to the disposition of his estate. Every alteration of the mind if sufficiently notified is therefore a revocation. A bargain and sale not enrolled will not pass the estate, yet, manifesting an alteration of the intention of the testator, it *171is a revocation. So for the same reason a deed of feoffment, if no livery of seisin is made, will not pass the estate, yet it is a revocation. So if a man after making his will transfers by any way or means the whole estate, though he takes the same estate back to himself in fee, it is a revocation. Carth. 81. 1 Wils. 308. It is, therefore, I apprehend, immaterial to this question, whether any thing passed by the deed to Llewellin and Foster or not. Sufficient appears tipon the face of the deed itself, to shew Justinian Gerard had changed his mind, and intended to make a different disposition of the estate from that mentioned in his will. But the present case, in my opinion, is much stronger 5 for the deed to Llewellin and Foster, I think to some purposes, is good, and transferred the estate to them, to the uses therein mentioned, as far as the consideration of the deed will extend. If land is conveyed by feoffment, fine or recovery, which transfers the possession, a use may be limited to a stranger without any consideration. But in a grant, bargain and sale, or covenant to stand seised, which do not transfer the possession, no use will arise unless there be a valuable consideration. So far, therefore, this deed relates to Justinian Gerard himself, or/ása^^j vision for his wife, and the issue of his bo' begotten, the consideration is valuable, and the transferred to Llewellin and Foster in trust for poses; but those considerations can never be raise a use for the benefit of any other person whatsoever. If therefore the appointment by Sarafijv/Fo survived Justinian, had been ever so regular, I am of opinion for want of a valuable consideration, no benefit could have accrued to the person so nominated by her to take the use. Gilbert, Uses, 251, 252. 207, 208. quere 212. 46. 1 Co. 154. b. 7 Co. 39. 11 Co. 24. Prec. in Ch. 224. I think it unnecessary to give any positive opinion to the third quere, whether such- appointment in this case was regularly made, and the intention of the parties well pursued, because if no estate could pass by virtue of such *172appointment, it is immaterial in the end how it was made, though I incline to think the deed made by Curtis and wife to Jowles, is no appointment under the power given by the deed to Llewellin and Foster, and was never intended by Curtis and wife as such, it reciting their interest in the premises, and their power to convey to be given by will of Justinian Gerard., and not by the deed to Llewellin and Foster. Gilbert, Uses, 161. 199.
As to the 4th question,, it is in my opinion determined by the second and third; for if no interest could arise to the person nominated by Sarah, or if the power of making such appointment is not well executed by her, the possession would not by the statute be executed to the use; but the legal title would still remain in the heirs of the said Llewellin and Foster. Gilbert, Uses, 210. 6 Co. 18. 1 Burr. 120. But a doubt still remains of great importance, not only in this case, but to the inhabitants in general in this Province, and that is, whether peaceable possession for upwards of 20 years, is not a sufficient title to support an ejectment. I am in a great degree unacquainted with the practice of the Provincial Court, which will probably go a great way in the determining of this question. But in point of law, in point of reason, I have not many doubts» An ejectment will not lie where the entry of the party is tolled, and the statute of limitations (which does not speak of ejectments) takes away the entry after twenty years possession. It is the established doctrine, therefore, that twenty years possession is a good bar in ejectment; and if such possession is a good title for a defendant, why not for a plaintiff ? I can discover no reason to warrant the distinction, and I take the law to be the same in both cases. But this case is greatly strengthened by the descent cast upon Mr. Carroll, during the continuance of the said possession.
If cestui que use enters into the premises and receives the profits, he is tenant at will to the trustee. When, therefore, Justinian and Sarah Gerard, after the deed made to JJevjeHin and Foster, entered into and received the pr© *173fits of the said land, it may be objected they were only tenants at will, Carth. 60. and she being entitled to no great» er estate in the use than for her life, the deed of bargain and sale made by Curtis and wife (after the death of Justinian) to, Jowles, could only operate to pass such interest as it legally might, to wit, for the life of Sarah, and not to divest the right of Llewdlin and Foster. Co. Litt. 75. a. 4 Lev. 35. Jones, 316. Cro. Eliz. 830. 2 Cro. 660. Teh. 74. and, therefore, the statute of limitations did not attach in this instance by any act of Justinian or Sarah.
It is needless to enter into a formal refutation of such an argument, because I think that if the argument is admit» .ted in its utmost extent as to Justinian and Sarah, it does not apply to the question, there being more than twenty years possession by Mr. Carroll and his father after the death of Sarah, who intermarried with Curtis, and that such possession, if peaceable and uninterrupted, will give a right of possession under the statute of limitations, and, consequently be a sufficient tide in ejectment, unless the practice of our Provincial Court, which I am not sufficiently acquainted with to speak of with certainty, should make some further evidence of the right necessary to este» blish a title.