#### Den on the several demises of Richard Jones and Tamerlane Jones. v. Richard Putney, sen.

¡>From Northampton.,

Colour of title. A Sheriff’s deed, which recites the execution under which the lands in dispute were sold, as having been tested and signed by the deputy clerk, shall enure as colour of title. Por although the Constitution declares, that all writs shall bear teste and be signed by the clerks of the respective courts, yet a writ of execution is not necessarily void because it bears teste and is signed by a deputy cleric ; because the act of 1777, ch. 2. sec. 95, provides that in the event of the death of the principal clerk, the deputy shall sue out writs and other process.

William Jones, being seised of the lands in dispute, made his last, will, duly executed to pass his real estates, and therein devised as follows, “ I lend unlo my son Richard “ Jones, during his natural life, and during his wife Sarah “ Jones’s widowhood, all my lands lying on the north side es of Burwell Gilliam’s spring branch, and on the north ee side of the north prong of Canoe creek; and if the said “ Richard Jones should die without lawful issue, I give ic the above mentioned tract of land unto my grandson, “ James Johnston, to him and his heirs.” The testator died in 1784, and Richard Jones, the devisee, took possession of the lands, and continued in possession until the summer of 1804,- when Richard Putney, junior, recovered a judgment against said Richard Jones, in Northampton County Court, for 173 18 4, and costs of suit j an execution was issued thereon, directed to the Sheriff of Northampton, commanding him that of the goods and chattels, lands and tenements of said Richard Jones, he cause to bo made the said debt and costs. This execution was levied on the lands in dispute, and at the sale, Richard Putney, senior, the Defendant, became the purchaser. The Sheriff executed to him a deed for the lands, and he entered and too'k possession, and hath retained possession ever since. *563Richard Jones, the devisee, died in 1812, intestate, and the lessors of the Plaintiff were his issue, and his only heirs at law.

At the time the execution issued, Eaton Haynes was the clerk of Northampton County Court, and Richard W. Freear was his deputy; The execution was tested by Richard W. Freear, “ deputy clerk,” and signed by him as deputy clerk. The Sheriff’s deed recited the execution as “ tested by Richard W. Freear, deputy clerk.” The questions made upon the trial of the case were, 1st. Whether Richard Jones took an estate for life, or in fee, under the will ? and 2d. Whether, if he took an estate in fee, the title was divested out of him and vested in the Defendant, by virtue of his possession and the colour of title accompanying it ? The case was sent by consent to this Court.

Mordecai, for the lessors of the Plaintiff.

— The intention of the testator, however defectively expressed, shall prevail, provided the object be warranted by the rules of law and when it is said, that wills must be consistent with the rules of law,* the observation is not applied to the construction of words, but to the nature of the estates themsclves.† It is apparent that tiie intention of the testator was, that Richard Jones should have an estate for life only, with remainder in fee to his children. First, the term lend, shews that he was only to have the use. Secondly, it is restrained to his natural life. Thirdly, a provision is made for his wife, because, he -having only the loan for life, she could not be endowed -, and fourthly, when he intends to pass the absolute ownership, he “ gives” to his grandson ; he desires that all that he has lent to his son should belong to such issue.

This being the manifest intention, it should prevail, as there is nothing in the nature of the estate which is forbidden by law. Shall the father take an estate of inheritance, where only an estate for life is expressly given to him ? *564The words “ If the said Richard shall die without Iaw- “ ful issue,” will not enlarge the express estate before given.* The rules which govern such cases are. “ expres- (( s^o un¿us esi excimi alterius,” and “ exjyressmn facit <e cessare tadium.”

There arc cases in which an implication may be. allowed to enlarge an estate expressly limited for life, into an estate of inheritance ; but this is done only to fulfil the general intent of a testator, to which his particular intent, inconsistent therewith, is made to bend.† Now in this case, if the devise were, et to Richard for life, and if he should “ die without issue, then to J, Johnston,” it would be right to disregard the particular intent, to promote the general intent: for, the issue of Richard being' preferred' to Johnston, and there being no express devise to them, they could take only by giving their father an estate tail; and then, to promote the general intention of the devisor, Richard would take an estate tail by implication. Rut here there is no such necessity, for there is an express estate to the issue.‡

The express estate given to the issue, will not unite with the estate for life, so as to give Richard Jones ail estate tail. The rule in Shelly's case, having been introduced for reasons which have ceased, is only adhered to in cases literally within it j where there are circumstances to take the case out of it, it is departed from in favour of intention.§ By that rule, where a freehold is limited to the ancestor, and a remainder, either mediate or immediate, to liis heirs, by the same conveyance, the word heirs shall operate as a word of limitation, and not of purchase. But even where the word heirs is used, it is, when explained by other words, taken to be a word of purchase. In Archer's case,ǁ the words were, “ to A. for life, and to the “ next heir male of A, and the heirs male of the body of *565 ec such next heir male.” Yet “ heir” may be a word of limitation.* In Lowe v. Davis,† the devise was, “ to J, “ S. and his heirs, lawfully to be begotten, that is to say, “ to his first, second and third sons $” J. S. took an estate For life. And in Lisle v. Gray‡ the deed was “ to Ed-. “ ward for life, remainder to the first son of Edward in “ tail male, remainder to the second, third and fourth sons “ of Edward in tail male j and so to nil and every the other ie heirs male of Edward.” Edward took a life estate only.

But a devise to issue is not within the rule. Issue is not properly a word of limitation. A deed to A. and his ■issue, gives only a life estate, it is only from indulgence to testators, who are suppposed inopes consilii, that it operates as a word of limitation.§ The cases of Doe on demise of Cooper v. Collis,ǁ Findley’s lessee v. Biddle,¶ Loddingion v. Kyme,** and Backhouse v. Wells,†† differ from that before the Court in this, that words of limitation are superadded to the devise to the issue. But this is immaterial; for if the word “ heirs'* had been used, su-peradding words of inheritance would have no effect. This was decided in the case of Minshall v. Minshall.‡‡ The decision was founded on the word issue, not on the su-peradded limitation. If these words be material in England to give the issue an estate of. inheritance, and therefore, where they are wanting the ancestor shall take an inheritance to comply with the general view of the testator, in this state they are not necessary, as the issue takes a fee under the act of 1784, c. 22.

If Richard Jones took any estate of inheritance, it was an estate tail. There is no such estate given to him, unless the Court disregard express words, and have recourse to implication, or unless they give to the words “ issue, &c.” an unnatural sense. Implications are only indulged to fulfil the intent ; improper terms, used by testators, are *566also indulged with the same view. But such indulgences will not be allowed, where the effect must be to create an estate contrary to the declared policy of the government/* much less will a construction be made, manifestly thwarting the expressed legal intention of the testator.

But, if in England, these words would make an estate tail, the construction here will be different. In England, where words are used in the bequest of a term, which would give au express estate tail in real estate, the whole interest vests in the first taker; where they do not give an express estate, the Court will consider the intention.† In this case, no express estate tail is given : on the contrary, it is an express estate for life, and if it were the case of a term, there could be no doubt on the authority of the case of Doe v. Lyde : and tiie case of Jones and wife v. the heirs of Spaight, shews there is no difference in the construction in this state-‡

*

Co Lit. 379, in note. Id. 329.

†

2 Atk. 580.

*

2 Dyer 171, a. 3 Do. 330, b. Cro. Eliz. 248. 1 P. Wms. 54. 1 Ld. Raym. 203. Willes 356.

†

1 Burr. 38.

‡

2 Bro. Ch. Rep. 553.

§

2 Burr. 110?.

ǁ

1 Co. 66.

*

Co. Lit. 0, a.

†

2 Ld. Raym. 1561.

‡

2 Levinz. 223.

§

Willes 351.

ǁ

4 Term 299.

¶

3 Binney 139.

**

Ld. Ray. 203.

††

4Bac,273.

‡‡

Atk.411.

*

Bill of Rights, sec. 23. Constitution 43, — Act of 1784, ck. 22,

†

Doe v. .Lyde, 594.

‡

1 Law Repos. 544.

Hade, and Murphey,

(who sat for Judge Henderson) Judges, declined giving any opinion upon the first question made in this case. Upon the second question, they were of opinion that the Sheriff’s deed to Putney was co-lour of title, and he having had seven years possession under it, the right of entry in the lessors of the Plaintiff’ was barred.

Taylor, Chief-Justice.

The questions arising in this case are, whether Richard Jones acquired a fee simple in the land under the will of his father, William Jones; and if he did, then whether the title was divested out of him, and vested in the Defendant by virtue of his possession and the colour of title accompanying it. It is impossible to read the will, and to doubt that the intention of the testator was to give to Richard Jones an estate for his life-only. It is equally clear that he intended no benefit to be-enjoyed under the devise to his grandson, James Johnston, *567as long as there were any issue of Richard Jones remaining. This was the general intent, to which the other, the particular intent, must give way, where it is impossible to reconcile them. That cannot be done in this case, for the issue of Richard Jones can only take by a descendible estate being vested in their ancestor: and in giving tiiis .construction to the will, the Court do no more than the testator himself would probably have done, had he been aware that his general object could not have been attained, without giving up his particular intent. JF the issue were held to take by purchase, then, upon the death of one, his share would go over to James Johnston3 which certainly was not intended by the testator. This consideration, when coupled with the act of 1784, ch. 22, shews clearly that Richard Jones was tenant in fee simple of the land sued for.

The objection made to the colour of title set up by the Defendant is, that the Sheriff’s deed recites the execution under which the land was sold, as having been signed by the deputy clerk, and being, therefore, void upon tiie face of it, could not enure as colour of title. One general' ground, on which it has been held that a colour of title is necessary, where a party relies upon the statute of limitations is, that the act did not intend to protect those who knowingly took possession of another’s lands, and sought to acquire a title by continuing a trespasser for seven years. Whether that principle be correct, or whether a person can in any case fortify his possession by a colour of title, which purports on its face, that the alienor had no right to convey the land, I leave as questions to ho settled as they arise. But I think it may be affirmed, without hazard, that a deed may operate as colour of title, which docs not necessarily purport the want of authority in the seller to convey, or which may in truth bo consistent with such an authority. A man purchasing at a Sheriff’s sale, under an execution issuing from his own judgment, may he thought prima Jade to have reasonable ground to believe *568that the Sheriff iias a right to sell; and this presumption 'ought to remain, at least, until he is instructed by the Sheriff’s deed, that the authority to make the sale was void ljn<]er. a¡} ¡t;j circumstances. If any case can be stated, wherein the execution might be signed by the deputy clerk, ■it may be intended that the purchaser believed that case to have happened, when ho received a deed from the Sheriff. It makes no difference, that it now appears to the Court, that such a case had not happened, for the enquiry turns not ■upon the fact, but upon the purchaser’s belief. Such acaso is provided for by the act of 1777, ch. 2, sec. 95; and there, is nothing to bring home to the purchaser, a knowledge that the principal clerk was alive at the issuing of the execution. This case, therefore, is not to be distinguished from that of a person, who enters upon the possession of land, believing that he has a right to do so j and as he claims under a deed, which, for any thing appearing to the contrary, announced to him the rightful exercise of an authority in the Sheriff to sell, it must amount to a colour of title. Upon both grounds, therefore, I think there ought to be judgment for the Defendant.