#### DEN ON DEMISE OF DAVID T. CALDWELL AND WIFE vs. JAMES M. BLACK,

The court below should not present to this court for its determination points, which did not arise from facts proved on the trial, but irom alleged facts made the foundation of a motion for a new trial.

Where one, who was seized in fee of lands, which she took by descent from her father, died before the passage of the act of 1808, (Rey. St. ch. 38, s. 1) intestate, leaving no issue, nor brothers nor sisters, but a mother and paternal uncles — Held, that the mother took no estate in this land, but that it descended immediately to the uncles.

Held, further, that, upon the subsequent birth of half sisters of the propositéis, the estate of the uncles was divested, and became vested in such half sisters, as the heirs of the propositus.

Held, further, that, although a half brother was born subsequently to the passage of the act of 1808, yet, as his sisters were bom before that period, and the estate of the uncles had thereby become divested, the last born son was equally entitled with his sisters to a share of the inheritance. If the estate of the uncles had not been divested by the birth of the sisters before the act of 1808, it would not have been divested by the birth of the son subsequent to the passage of that act, which altered the course of descent as regards the half blood.

Although the statute of limitations in such a case, might have run so as to bar the first heir who took, yet this shall not affect the preferable heir, who comes in subsequently, for the latter does come in under the first heir, but above him, and defeats his estate, and therefore is not bound by his acts.

A person suing in ejectment, who was under a disability, which prevented the statute from running against him, is entitled to recover his share, although there are tenants i.n pommon }vith him, whose right of action is barred by the statute.

An action of ejectment by husbgnd and >vife is not barred by the statute of limitations, although the defendant may have been seven years in possession under color of tjtle, the possession having commenced during the disability of the wjfe,

The cases of Cufiar v. Cufiar, 2 Hawks, 324. Trustees of the 'University v, Holstead, 2 Law Rep. 406. Ballard v. Hill, 3 Murph. 410. Bed v. Dozier, 1 Dev. 333. McRee v: Alexander, 1 Dev. 321. Gentry v. Wagstaff, 3 Dev. 270. Allen v; Gentry, 2 Law Rep. 609, and Davis v. Coolce, 3 Hawks, 608, cited and approved.

Appeal from the Superior Court of Law of Mecklenburg' *464county, at .the Special Term in May, 1845, his Honor Judge Pearson .presiding.

Ejectment for 749 acres of land in Mecklenburg; and upon the evidence the case was this ; Thomas Davidson was seized of the premises, and devised them to his only child and heir, Mary L. Davidson, in fee simple, and died in 1801. The said devisee entered and died in 1802, intestate and without leaving issue, or brother or sister, or the issue of such, and leaving her mother surviving her. Just before her death, her mother intermarried with William Davidson, and by that marriage she had issue four children: Margaret, born in 1803 (and eleven months after the death of Mary L. Davidson) and married to one Blake in 1822: Sarah, born in 1804, married one Johnson in 1824, and divorced a vinculo matrimonii in 1830: Harriet, one of the lessors of the plaintiff, married in •1825 David T. Caldwell, the other lessor of the plaintiff, by whom she has issue living: and William F. Davidson, born in 1810.

Upon the death of Mary L. Davidson, William Davidson entered into the premises, claiming them in right of his wife, as having decended to her from her deceased daughter. Mrs. Davidson, the mother, died in 1812. But William Davidson continued in possession of the premises up to the year 1823; when he sold and conveyed them by deed of bargain and sale in fee to John Black, who immediately entered thereupon and continued in possession until his death, and then the defendant entered, claiming as .the son and heir of said Black, and has been in possession ever since. In May 1833 Blake and his wife, Sarah Davidson, and William F. Davidson, by a deed of bargain and sale (purporting to be made by those persons, and by David T. Caldwell and his wife Harriet of the first part, but which was never executed by Caldwell and his wife,) conveyed the premises in fee to the said Bl.a.ck, then in possession. William Davidson is still living. This action was brought on the 29th of August, 1844.

Thereupon, the counsel for the defendant insisted, that the jüapd descended from Mary U- Davidson to her m.othpr in fee, *465whereby her husband, William Davidson, became entitled as ¡tenant by the curtesy, and that the plaintiff cannot recover •during the life of the said William. But the Court instructed the jury, that although the premises might have descended from Mary L. Davidson, immediately on her death, to her mother, yet upon the subsequent births of the lessor of the plaintiff, Harriet, and her sisters and brother, they took as the preferable heirs, to the exclusion of their mother; and, therefore, that William Davidson never was tenant by the curtesy of the premises.

The defendant’s counsel further insisted, that, although the lessor of the plaintiff, Harriet, would have three years after the coverture ended to enter or bring her action for the premises, yet the present action, upon the demise of David T. •Caldwell and his wife, could not be sustained, because the husband was under no disability and he had suffered the defendant to continue in possession for more than seven years since his intermarriage. But the- Court refused so to instruct the jury; and instructed them, that the plaintiff was entitled to recover, notwithstanding such lapse of seven years.

The counsel for the defendant insisted thirdly, that the right of entry of the lessors of the plaintiff was barred, because two of the co-heirs were barred by the adverse possession of the defendant and his father, for more than seven years after their disability ceased; namely, Sarah who was divorced in 1830, and William P. who came to full age in 1831. But the Court refused to give that instruction to the jury; and instructed them, that, admitting the legal position taken for the defendant to be correct, yet by taking the deed in 1833 from Blake and wife, Sarah, and William F. Davidson, the defendant made himself tenant in common with the lessor of the plaintiff, Harriet, and his possession ceased to be adverse to her.

Under the foregoing instructions the jury found for the plaintiff. To the exceptions taken to the opinions of the Co.urt upon the foregoing points, is added this further statement : That the defendant moved for a new trial, and there*466upon made it appear, that Mary L. Davidson left, surviving ^ei')tw0 paternal uncles and the issue of a third, who was then dead; and thereupon it was insisted, that Mary L. Davidson came to the land by descent from her father, and that upon her death it descended to her said uncles and cousins in fee, subject to a life estate therein of her mother; and, therefore, that the possession of William Davidson and of his ali-enees was adverse to those persons, and that the statute of limitations began to run against them, and, so, continued to run against the sisters and brother of Mary L. Davidson, even if they, as they came in esse, succeeded to the inheritance in the place of the uncles and cousins. But the Court was of opinion, that it was not material in this case, whether the estate descended to Mary L. Davidson or not, for if it did, as she had no paternal brother or sister of the whole or half blood, her maternal brethren would take in preference to the more remote collateral relations on the part of the father ; and, that, although the uncles and cousins, if they had continued to be the heirs, might have been barred by the adverse possession against them, yet the possesion could not operate against the preferable heirs, who were afterwards born; andj as the brother, William F. Davidson, was not born until 1810, he succeeded to no part of the premises, but the whole belonged to the three sisters. The Court therefore refused to disturb the verdict; but, being willing that every question that could be raised, should be presented for the decision of the Supreme Court, his Honor consented to annex this matter to the exception. From the judgment the defendant appealed.

Alexander & J II. Bryan, for the plaintiff.

Boyden & Osborne, for the defendant.

Ruffist, C. J.

The Court mast protest against all attempts to raise points for decision here, which did not occur on the trial of the cause. The rights of the parties are to be determined on the facts proved, and not on any supposed or suggest-ted on a motion for a new trial. Such is the state of this case; for after the verdict, no further evidence, properly speaking, *467Could be heard, and therefore the Court could not judicially know, that Mary L. Davidson left uncles and cousins. That fact, might, it is true have been brought forward as a reason for a new trial; but that would be on the ground of surprise or oversight of counsel, and would be exclusively for the determination of the presiding Judge. If, then, there was any force in the last point made, this Court could not act on it, but would, notwithstanding, be obliged to affirm the judgment. As we think, indeed, there is nothing in it, we have no objection in this case to express our opinion on it, as it may prevent further litigation.

We think all the points taken for the defendant extremely plain.

First, with respect to the title of the feme lessor of the plaintiff. It is immaterial, whether the propositus took by purchase or descent; for that could only affect the right of succession of the mother and the parental relations, as between themselves; and in either case, that is to say, whether upon the death of M. L. Davidson, the land descended to the mother or the uncles and cousins, that descent was but temporary, and her posthumous brethren became entitle upon their births and divested the previous descent. This was undoubtedly a principle of the common law, Co. Lit. 11. b., and it prevailed in this state and was adapted to the course of descent established by statutes here, until altered in in 1823. Cutlar v. Cutlar 2 Hawks 324. In that case, not only the general doctrine was acknowledged, but it was declared, that it must prevail in a case of half blood, where they are entitled to inherit. There is no doubt, however, that the propositus, being the sole heir of her father, took by descent and not by devise, as the will gave her the same estate precisely that she would have taken without if. Therefore, under the acts of 1784, the mother in this case was not entitled to a life estate, but the descent was immediately in fee to the paternal relations. Trustees of the University v. Holstead, 2 Law Reports 406. But, in such a case, it was finally established in Ballard v. Hill, 3 Murph. 410, that the half-blood of the maternal line. *468in nearer degree, was preferred by the acts of1 1784; to the more remote collaterals of the paternal line ; and, whatever doubts may have been formerly entertained or really existed on that question, it would be impossible for us, after that de-' cisión and the abrogation of the acts of ’84 by the.legislation of 1808, to disturb it without producing the most serious evils. Consequently, according to Cutlar v. Cutlar, the birth of a child by the mother’s second marriage displaced the estate of' the uncles and cousins; and upon the subsequent birth of other children of that marriage, at least up to the year 1808, the inheritance opened to admit them as co-heirs with those previously born ; of whom the lessor of the plaintiff, Harriet, was one. The only remaining question upon her title is, as to the extent of her interest, in respect to the share of the land belonging to her, as raised upon the motion for a new trial. Upon that his Honor held, as the three daughters only were born before 1808'and the son, William F., was born in 1810;• the latter was entitled to no part of the land, because by the 4th rule of the act of 1808, where the inheritance comes by descent to the propositus, it descends to the next collateral relations of the person last seized, who are of the blood of the ancestor, from whom it first descended; and, therefore, in this-case, the uncles and cousins were preferable, as the heirs, to William F. and the estate vested in them at the' death of the propositus, would not be displaced for him. And we should-think so too, if the question were between the brother and the paternal relations ; for it is certainly competent to the legislature,- before a person comes in esse, to change the course of descent, so that such person shall not succeed as heir, although, but for such change of the law, he would have been heir at his birth. The heir takes, not by contract or any inherent right, but by law; and therefore the right of success-' ion is subject to be modified as the legislature pleases, until-some person comes into being,- in whom it vests. But in this case the question is not between those persons, but is between-the sisters -and the brother; for the right of the paternal relations had been divested by the birth- of the first daughter 3 *469who took the whole, as against them, and subject not to defeated, but only to open for the benefit of after-born brothers and sisters; and the enquiry is ; whether, according to the true construction of the act of 1808, such of those persons, as were born before that time, can insist on keeping the whole' and excluding a child born afterwards. We think not. The principle of the case of Bell v. Dozier, 1 Dev. 333, is directly in point. There is nothing in the statute which gives a preference to one brother or sister over another, according to the periods of their respective births. That is not the ground of the argument for the plaintiff, against the admission of William F. Davidson. But it is that by the letter of the act he cannot inherit, as a maternal brother of Mary L. Davidson, because she left relations of the blood of her father, from whom the land descended to her. But it is manifest that he is excluded in that case, not on the ground of any unfitness, that he should inherit, but on the ground that the paternal relations are'the more proper heirs of land, descended from the father. In other words his claims are postponed to those of the paternal relations, solely for the sake of the latter. Therefore, when the paternal relations, though existing, cannot inherit, it is the same thing, within the purpose of the act, as if they did not exist.- Hence, it was said in Bell v. Dozier, the words “ capable of inheriting,” must be understood as added to the description of the paternal relations, who are’to exclude other nearer-relations. And'this principle is even the more applicable to the 4th and 5th canons than to the sixth; for the fifth canon is express, that when the inheritance is transmitted by-descent, and the blood of the ancestor,- from whom it descended, is extinct, it shall then descend to the' nearest collateral relations of the propositus, of either line.' So it is clear, that under the act of 1808, William F. Davidson, though born in 1810, would inherit with, his sisters, if there' had been no brothers of Thomas Davidson; and therefore, as-they do not take, the accident of their existence at the death of Mary L. Davidson ought to form no impediment to his participating in the inheritance with his sisters. ' We are-*470therefore, of opinion, that Mrs. Caldwell is entitled to one un» divided fourth part of the premises, and the defendant to the other three.

We should have been of opinion with his Honor upon the question, whether William Davidson was tenant by courtesy, even upon the supposition, that the •propositus took by purchase, and that the descent was at first, to the mother. For the \vife had but a defeasible fee, and the very fact necessary to constitute him tenant by the courtesy, namely, the birth of issue, defeated his title by the coming in esse of a preferable heir. But that is put entirely out of the case by the defendant’s admission, that the uncles and cousins were the heirs, and not the mother.

The objections founded on the statute of limitations are hext to be considered. In relation to the possession of the premises by William Davidson, it is to be observed that it could not put the statute in motion even against the uncles as he held without color of title. But if it had been otherwise it would not have affected the after-born children; for a preferable heir does not succeed to the heir, who first took, in the sense of coming in under him, and, therefore, to be bound by his acts. On the contrary, he comes in above him, and de_ feats his estate altogether. Suppose the uncles had sold the estate, before Mrs. Davidson had a child by her second marriage ;■ clearly such a child, when born, would nevertheless take. Therefore the laches of the uncles cannot bar the infant heir, if their acts could not.

Upon the point, that the lessors of the plaintiff are barred, because two of the co-heirs were under no disability and would be barred by the possession of the defendant since 1823, under the deed of William Davidson, it is unnecessary to advert to the reasoning, on which his Honor answered the objection— on which'we give no opinion ; nor to recur to any general reasoning from the positions, that although tenants in common must join in personal actions, yet that generally they must Sever in real or mixed actions, because they have several freeholds and different titles. It is thus unnecessary, because we have an adjudication of this Court upon the very *471point, in McRee v. Alexander, 1 Dev. 321; in which it was held, that in ejectment upon the demises of all the heirs, there should be judgment against the plaintiffs as to the shares of his lessors, who were under no disability, and lor him as to the share of one who was under disability.

The remaining ground, that the action by the husband and wife cannot be sustained, because seven years have run during the coverture, and the female plaintiff must now wait until the coverture is ended before she can enter or sue, we must say, is altogether new to us, and seems to be wholly untenable. In general, the husband and wife must join in actions for the recovery of the wife’s lands. The freehold is hers, and the right of entry also, and an action brought by them survives to her. The object is to regain her seizin. Where they are in possession, the husband cannot in pleading allege the seizin to be in him, even though he adds tha.t it is in right of his wife; Polyblank v. Hawkins, Doug. 329; Took v. Glasscock, 1 Saund. 250, e; but it must be stated, that the husband and his wife were seized in their demesne, as of fee, in right of the wife. Such is the case, even when the husband and wife have been at one time seized during the cover-ture. Much more must the wife be joined, when the object is to recover land of the wife, of which there was an adverse possession at the time of the marriage and has been ever since ; for the husband gains no estate in those lands by his marriage, nor until he enters and reverts the seizin. Gentry v. Wagstaff, 3 Dev. 270. Consequently, the husband could not bring an action in his own name alone, nor make a lease. It was said, indeed, at the bar, that the action was essentially that of the husband exclusively, as the wife, had no capacity to make the supposed lease stated in the declaration, but the husband alone. But that must have been said without much research ; as, surely, the capacity to convey in fee includes that of leasing for years. Besides, the St. 32, Hen. 8, ch. 28, sec. 2, has been re-enacted here, Rev. St. ch. 43, sec. 9, and that expressly enables husband and wife to make leases of her lands; and the lease set forth in the declaration, being a fiction, is always *472supposed to be good, if the lessors had .capacity to make any *ease’ an<* had the right to .enter into the premises, there to make the lease. But .we need not further consider the question on principle; for this point also is concluded by the authority of adjudications. The same case of McRee v. Alexander, 1 Dev. 321, involved also the point before us,, as more than se.ven'years elapsed during the coverture of Mrs. Henderson, and the only demise, on which a recovery -was had, was that by her husband and herself for her share: this being still a stronger .case, because here the adverse possession began before the marriage, whereas there ft commenced during the coverture. Besides, were it in actions -for personal things, which, when recovered, belonged wholly to the husband, the action of the husband and wife is saved from the operation of the statute against the husband by the disability of the wife, Allen v. Gentry, 2 Law Repos. 609, Davis v. Cook, 3 Hawks 608. And both of those .cases also give to the plaintiff in this action the cumulative disabilities the female lessor of the plaintiff labored under, of infancy and coverture, from the .commencement of the adverse possession to the bringing of ,this suit.

Per Curiam, Judgment affirmed.