#### DOE ex dem. STEPHEN MYERS vs. HAMET CRAIG.

The taker of the first fee, under a conditional limitation or executory devise, "by which a fee is limited after a fee, cannot, by bargain and sale with warranty, bar the taker of the second fee, without assets descended — the taker of the second lee being his heir at law.

Where the devise was to Four sons, A., B., C. and D,, ^ and if one or more of them die leaving no lawful heir, the property shall belong to those of the four whose names are above writtenand A. conveyed in fee with general warranty, and died without is* sue: — Held that his warranty did not bind his brothers (his heirs at law,) without as* sets descended.

(The case of Spruill v. Leary, 13 Ire, 225, overruled, and that of Flynn v. Williams, 1 Ire. 509, distinguished from this.)

*170Ejectment, tried before Ms Honor Judge Ellis, at Spring Term, 1852, of Anson Superior Court of Law. The following is the case transmitted to this Court:—

“ It was proved that Marmaduke Myers died in the year 1831, leaving a last will and testament, bequeathing both real and personal estate to his six sons therein named, including among the real estate the premises in question. The property thus bequeathed was ordered to be equally divided among his six sons, when the youngest should arrive at lawful age. After which fo^pwed this limitation : — ^And should it please God that any one or more of my six beloved sons, Joshua Ransom, Calvin, Burwell, Thomas, Stephen Carney and Albert Myers should die, leaving no lawful heir, the property and its increase shall be and belong unto those of the six whose names are written above, that God may let live.” Burwell and Thomas died in the lifetime of their father. All the lands were divided between the other four sons when the youngest arrived at the age of twenty-one years. The premises in question 'fell to the lot of Calvin Myers, who conveyed them in the year 1838 to the defendant, by deed of bargain and sale with general warrantjr, in these words : — And the said Calvin Myers for himself and his heirs, the aforesaid land and every part thereof, against all and singular his heirs, and against the claim or claims of all persons whatsoever, to the said Ransom and his heirs and assigns, shall and will warrant and forever defend. Calvin Myers died in the year 1850, without issue, leaving the plaintiff Stephen and another, his brothers, who are the same referred to in the will of Marmaduke Myers, as his heirs at law.

The plaintiff claims by virtue of the limitation contained in the will of Marmaduke. The defendant objected to the recovery on the ground that the plaintiff, being one of the heirs at law of Calvin Myers, was barred by the warranty of said Calvin in the deed of bargain and sale to him.

The plaintiff argued against the effect of the warranty: 1, because the common law doctrine of warranty, together with the remedies thereon are obsolete and not in force here; 2, because this being a conveyance by bargain and sale, under the Statute of Uses, no greater estate passed than the bargainor had at the time, *171and the effect of the warranty only extended to the death of the bargainor without issue, when the limitation to the plaintiff and others took effect.

His Honor was of opinion, and so informed the jury, that the covenant contained in the deed was not simply a personal one, but properly a warranty; that of the three modes of taking advantage of a warranty, two, the writ of warrantia chartae and voucher, are not in force here, because of the introduction of more convenient remedies; but that by way of rebutter, whereby the heir was repelled or barred from claiming against the warranty of his ancestor, was still in force, as nothing more convenient had been invented to supplant it.

■ That the character of tire conveyance did not alter the effect of the warranty; for though the bargain and sale did not operate by a transmutation of the possession, and consequently nothing more passed than the bargainor righfully had, yet neither did a release or confirmation at common law, and the warranty in these was ever held to be of the same nature and force as in a feoffment or fine and recovery: that though the estoppel be limited to the extent of the estate passed, yet the rebutter is not.

That the warranty contained in the deed from Calvin Myers to the defendant is collateral as to the plaintiff, because it descended directly upon him as heir at law of Calvin, through whom he could not have derived title to the land; that all collateral warranties are abolished by statute, except those of a tenant having an estate of inheritance in possession; 'that in this case Calvin Myers had such an estate, and the warranty by him to the defendant barred the plaintiff who is one of his heirs.

The jury returned a verdict for the defendant. Rule for a new trial, because of erroneous instructions to the jury — rule discharged, and judgment; from which the plaintiff appealed.”

Strange, for the lessor of the plaintiff.

No counsel for the defendant in this Court.

Pearson, J.

Marmaduke Myers died in 1831, leaving a will, by which he devised his real estate to his six sons, “ to be divided equally among them, when the youngest should arrive at full *172age;” after which, is this clause: — “ Should it please God that any one or more of my six beloved sons, viz. Joshua, Calvin, Burwell, Thomas, Stephen and Albert, should die leaving no lawful heir, the land shall belong to those of the six whose names are written above, that God may let live.” Burwell and Thomas died in the lifetime of the devisor. The land was divided be■tween the other four when the youngest arrived at age. The tract in question fell to the lot of Calvin. He conveyed it in 1838, by deed of bargain and sale with general warranty to the defendant, and died in 1850, without leaving a child, and Stephen Myers, the lessor of the plaintiff, is one of his heirs at law. The plaintiff insists that his lessor is entitled under the will of Marmaduke Myers. The defendant insists that as he, Stephen, is one of the heirs at law of Calvin Myers, (his bargainor,) he is barred by the warranty of his brother. His Honor was of opinion that the warranty was a bar. To this the plaintiff excepts. There is error.

This case presents tire very question that was presented in Spruill v. Leary, 13 Ire. 225, (but was tried before that case was printed); and the question is, can the taker of the first fee, under a conditional limitation or executory devise, by which a fee is limited after a fee, by means of a bargain and sale in fee with warranty, bar the taker of the second fee, without assets descended — the taker of the second fee being his heir at law ?

Spruill v. Leary, decides that the warranty is a bar. The decision is put on Flynn v. Williams, 1 Ire. 509, and was filed hastily, upon the idea on the part of a majority of the Court, that Flynn and Williams was on all fours, and directly in point.

In that case, the taker of the second fee died, leaving the taker of the first fee his heir; so, the condition was extinct, or, in other words, both fees fell upon the same person — the first by the will, and the second by descent; and of course he then had an absolute estate, and neither he nor his heir could deny the title of one claiming under his deed.

In Spruill v. Leary, the taker of the first fee died, and the condition not having been performed, the estate passed to the taker of the second fee by force of the condition, unless the war*173ranty made by the taker of the first fee be stronger than the condition made by the original donor.

It is clear Spruill v. Leary is not sustained by Flynn v. Williams; and after much research, no authority has been found to support the “ artificial and hard rule, the practical operation of which, at this day, (would be) to enable one man to sell another man’s land, without compensation.”

I am directed by the Chief Justice and my brother Battle to state, that they concur in the reasoning and conclusion set out in the dissenting opinion filed by me in Spruill v Leary, (not reported until the next term, by mistake). See 13 Ire. Law, 408; and we deem it unnecessary to elaborate the subject any further.

PeR CuRiam. Judgment reversed, and venire de novo awarded.