[408]*408[356]
Kinsey, C. J.
(Alter reciting the circumstances of the ease as detailed in the special verdict.) Before I come to the consideration of the important questions arising in this cause, it may be proper to mention one circumstance, which may, perhaps, prevent future trouble and future disappointment. At the trial of this cause the plaintiff offered to prove, by parol testimony, that at the sale of this property, Clark, the defendant and the purchaser, inquired what estate the commissioners designed to sell; the answer was, an estate for the life of John Hinchman, (the third,) and no more. That the lands were really sold for no more than the life of John Hinchman (the third). The court, however, overruled the testimony, which we are now of opinion was erroneous. We think the plaintiff should have been permitted to produce this testimony to the jury; and that if he could legally prove these facts, no title in fee could be made under a sale of a life estate only, nor should a party be permitted to avail himself of any ambiguity of language, and hold an estate so different from that which he himself intended to purchase, or the commissioners designed to sell.
The principal question argued upon this verdiet has been, what estate was forfeited by the judgment on this inquisition ? The plaintiff has contended that John Hinchman (the third), being tenant in tail, was incapable of forfeiting anything more than his life estate in the premises. The defendant, on the other hand, maintains that he forfeited all the estate tail created by the will of John (the first) ; that is, as long as any issue of the body of John (the second) exists.
As to the statutes of 25 Edw. III., 26 Hen. VIII and 33 Hen. VIII, the second of which forfeits estates tail where a man is convicted of treason by the course of the common law alone, they do not appear to me to bear upon the present question further than to show mder what words and under what circumstances estates tail have been held to be forfeited in England. They may operate as precedents in construction in analogous cases, but as statutes they have no obligatory [409]*409power upon the court in this cause, and afford no rule for its determination.
[357] As to the first of these statutes, that of 25 Edw. HI, it is remarked by Lord Coke that its principal benefit was, that it fixed what should be considered as atpounting to treason. 2 Inst. 2. With respect to forfeitures, it does no more than declare generally that “ the forfeiture of the escheats pertaineth to our lord, the king, as well of the lands and tenements holden of others as of himself.” From the statute de donis in 1285, until the 26 Hen. VIII, in 1534, estates tail were never held forfeitable for treason. When that statute was passed, the judges, however unwillingly, were compelled to adopt the construction that estates in tail were forfeited by treason. And if it be considered that the statute in question forfeits all lands in which the offender bad any estates of inheritance ; that estates in fee-simple were subjected to forfeiture before the making of the statute; and that estates tail are estates of inheritance, the absolute necessity of this construction seems apparent. Upon any other construction the statute would have had no effect at all; and it would have been to declare it useless and invalid, to say that estates in tail were not included.
The case of Brown v. Wait has been cited, and much relied on. Upon examination, this case seems to have been decided nearly on the same grounds as those which 1 have stated, as compelling the construction that was given to the statute of 26 Hen. VIII. There was evidently a strong repugnance in the court to consider the estate tail of Sir John Danvers to be forfeited, but they were compelled to adopt this construction, or the statute would, as Yentris, in his report of the case, says, “ have signified nothing at all.” The judges said that the statute took notice that Sir John was dead — of course he could not have an estate for life, subject to forfeiture; but there is certainly ground to infer from the language of the court, that if he had been alive, and could have forfeited an estate for life, so that the statute might have [410]*410had some object, and its provisions been not absolutely nugatory, the determination would have been different.
From these circumstances and observations the following inferences may be drawn : That the judges on statutes so highly penal, have not been readily induced to pronouuce es-[358]-tates tail forfeited for treason, even when those judges have been wholly in the power of the government, and were strongly interested to give judgments so consonant to the wishes of the crown, general words have not been deemed sufficient in any case, except where the construction was necessary to prevent the statute from being wholly inoperative.
This ease, however, depends neither upon the English statutes, nor upon the construction which judges have passed upon them, but on an act of assembly of our own state, and upon the design and intention of the legislature, either clearly expressed, or unavoidably and necessarily implied — an intention to be collected from the whole statute, taken in a connected point of view, and considered in all its parts, not by remarking on general expressions, without considering them as constituting only a part of an entire law. Our object, therefore, is to examine this act of assembly, and from its various parts to deduce as far, and with as much precision as possible, the design and intentions of those by whom it was framed.
The law in question is inaccurately drawn, and at the same time is highly penal; so much so, indeed, as to be incapable of being supported upon any principles of law or justice. To prove this it is only necessary to recall to mind the character of the contest in which we were engaged, and the changes that had occurred since its commencement. The legislature go back to the origin of the war, to a period when congress, and almost all their constituents, considered themselves as British subjects, professing allegiance to the king, to whom they uniformly said, “govern, but do not oppress us;” the legislature go back to this period when, according to the law of nature and of nations, every individual had a [411]*411perfect right to choose his party and join which side he pleased, and pronounce a sentence of severe and indiscriminate condemnation upon all who joined the armies of the British, either here or elsewhere, and subjecting their property to a total and absolute forfeiture; such a law should, therefore, be construed strictly, and certainly should never be extended further than the words express or unavoidably imply.
In the first section of the act the legislature begin with general words, “all and singular the lands, tenements, and [359] hereditaments,” expressions evidently rather to be considered as descriptive of the things intended to be forfeited, than of the interest in them. These words are certainly not more comprehensive than those used in the statute of 25 Edw. III., which were never construed to include an estate tail. But, admitting that if they stood alone, they might be presumed to comprehend estates tail, the words immediately succeeding, in the same sentence, “ held in fee or for term of life,” restrict the preceding general words, and limit their extension to lands held in fee or for life.
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[408]*408[356]
Kinsey, C. J.
(Alter reciting the circumstances of the ease as detailed in the special verdict.) Before I come to the consideration of the important questions arising in this cause, it may be proper to mention one circumstance, which may, perhaps, prevent future trouble and future disappointment. At the trial of this cause the plaintiff offered to prove, by parol testimony, that at the sale of this property, Clark, the defendant and the purchaser, inquired what estate the commissioners designed to sell; the answer was, an estate for the life of John Hinchman, (the third,) and no more. That the lands were really sold for no more than the life of John Hinchman (the third). The court, however, overruled the testimony, which we are now of opinion was erroneous. We think the plaintiff should have been permitted to produce this testimony to the jury; and that if he could legally prove these facts, no title in fee could be made under a sale of a life estate only, nor should a party be permitted to avail himself of any ambiguity of language, and hold an estate so different from that which he himself intended to purchase, or the commissioners designed to sell.
The principal question argued upon this verdiet has been, what estate was forfeited by the judgment on this inquisition ? The plaintiff has contended that John Hinchman (the third), being tenant in tail, was incapable of forfeiting anything more than his life estate in the premises. The defendant, on the other hand, maintains that he forfeited all the estate tail created by the will of John (the first) ; that is, as long as any issue of the body of John (the second) exists.
As to the statutes of 25 Edw. III., 26 Hen. VIII and 33 Hen. VIII, the second of which forfeits estates tail where a man is convicted of treason by the course of the common law alone, they do not appear to me to bear upon the present question further than to show mder what words and under what circumstances estates tail have been held to be forfeited in England. They may operate as precedents in construction in analogous cases, but as statutes they have no obligatory [409]*409power upon the court in this cause, and afford no rule for its determination.
[357] As to the first of these statutes, that of 25 Edw. HI, it is remarked by Lord Coke that its principal benefit was, that it fixed what should be considered as atpounting to treason. 2 Inst. 2. With respect to forfeitures, it does no more than declare generally that “ the forfeiture of the escheats pertaineth to our lord, the king, as well of the lands and tenements holden of others as of himself.” From the statute de donis in 1285, until the 26 Hen. VIII, in 1534, estates tail were never held forfeitable for treason. When that statute was passed, the judges, however unwillingly, were compelled to adopt the construction that estates in tail were forfeited by treason. And if it be considered that the statute in question forfeits all lands in which the offender bad any estates of inheritance ; that estates in fee-simple were subjected to forfeiture before the making of the statute; and that estates tail are estates of inheritance, the absolute necessity of this construction seems apparent. Upon any other construction the statute would have had no effect at all; and it would have been to declare it useless and invalid, to say that estates in tail were not included.
The case of Brown v. Wait has been cited, and much relied on. Upon examination, this case seems to have been decided nearly on the same grounds as those which 1 have stated, as compelling the construction that was given to the statute of 26 Hen. VIII. There was evidently a strong repugnance in the court to consider the estate tail of Sir John Danvers to be forfeited, but they were compelled to adopt this construction, or the statute would, as Yentris, in his report of the case, says, “ have signified nothing at all.” The judges said that the statute took notice that Sir John was dead — of course he could not have an estate for life, subject to forfeiture; but there is certainly ground to infer from the language of the court, that if he had been alive, and could have forfeited an estate for life, so that the statute might have [410]*410had some object, and its provisions been not absolutely nugatory, the determination would have been different.
From these circumstances and observations the following inferences may be drawn : That the judges on statutes so highly penal, have not been readily induced to pronouuce es-[358]-tates tail forfeited for treason, even when those judges have been wholly in the power of the government, and were strongly interested to give judgments so consonant to the wishes of the crown, general words have not been deemed sufficient in any case, except where the construction was necessary to prevent the statute from being wholly inoperative.
This ease, however, depends neither upon the English statutes, nor upon the construction which judges have passed upon them, but on an act of assembly of our own state, and upon the design and intention of the legislature, either clearly expressed, or unavoidably and necessarily implied — an intention to be collected from the whole statute, taken in a connected point of view, and considered in all its parts, not by remarking on general expressions, without considering them as constituting only a part of an entire law. Our object, therefore, is to examine this act of assembly, and from its various parts to deduce as far, and with as much precision as possible, the design and intentions of those by whom it was framed.
The law in question is inaccurately drawn, and at the same time is highly penal; so much so, indeed, as to be incapable of being supported upon any principles of law or justice. To prove this it is only necessary to recall to mind the character of the contest in which we were engaged, and the changes that had occurred since its commencement. The legislature go back to the origin of the war, to a period when congress, and almost all their constituents, considered themselves as British subjects, professing allegiance to the king, to whom they uniformly said, “govern, but do not oppress us;” the legislature go back to this period when, according to the law of nature and of nations, every individual had a [411]*411perfect right to choose his party and join which side he pleased, and pronounce a sentence of severe and indiscriminate condemnation upon all who joined the armies of the British, either here or elsewhere, and subjecting their property to a total and absolute forfeiture; such a law should, therefore, be construed strictly, and certainly should never be extended further than the words express or unavoidably imply.
In the first section of the act the legislature begin with general words, “all and singular the lands, tenements, and [359] hereditaments,” expressions evidently rather to be considered as descriptive of the things intended to be forfeited, than of the interest in them. These words are certainly not more comprehensive than those used in the statute of 25 Edw. III., which were never construed to include an estate tail. But, admitting that if they stood alone, they might be presumed to comprehend estates tail, the words immediately succeeding, in the same sentence, “ held in fee or for term of life,” restrict the preceding general words, and limit their extension to lands held in fee or for life. As these words stand connected together, no court of justice could have supposed that the legislature designed to forfeit an estate tail. Arguments, therefore, drawn from single, unconnected words and expressions, of which we have had too many on this occasion, have no weight with me.
The general words which follow, viz., “ All the estates real, of what nature or kind soever, belonging to the offender,” are equally ineffectual to forfeit an estate tail. These general words ought not, according to the received rules of construction, to be construed to extend to anything of a higher nature than the next antecedent, which is an estate for life. The doctrine that has been cited from Bacon is unquestionable, that general words are not to be extended to give a penalty, but they are to save one.
In many cases, and to many purposes, the estate of the tenant in tail is no more than an estate for life. The act of assembly which makes lands chattels for the payment of [412]*412debts, says that the hereditaments, real estates, houses, and lands of the debtor, shall be chattels for the payment of debts, and yet an estate tail has never been held liable to be sold further than for the life of the debtor; and, in the opinion, I should presume of every man, a creditor comes forward in a manner equally entitled to the favor of the law, and better founded in equity, and may with more justice and propriety claim a liberal extension of the words of the law towards him than a state, when demanding a forfeiture.
It may be objected that tenant in tail is, in fact, as much an owner of the estate as tenant in fee, because he may, at his pleasure, dock the entail, and vest himself with the absolute [360] fee. In my opinion, it would be a sufficient answer to all this to say, it is true he might have done all this, and might have acquired a more unlimited right over his property, but he did not; and we are considering, not what estate he might, under certain circumstances, have acquired, but what he actually and in fact possessed. With equal reason, it might be contended that, whenever a man has a right of action for lands, or right of entry, either of which, if properly pursued, would reduce that estate into possession, these should be forfeited for treason, and that the state should not suffer because he would not do what he might have done. But the determinations have been otherwise: neither are forfeited. Judges have not been fond of extending these statutes further than they were compelled to, and these interests were not embraced by the words of the law.
There is nothing in any part of this act which shows an intention to forfeit any estate but what the offender had the right of selling and disposing of absolutely.
When he has that absolute power, there seems more reason to forfeit the estate, though his children should suffer in consequence ; but where a man is seized in tail by the gift of his ancestor, he cannot sell or dispose of it, nor can he do any act while the entail continues to deprive his children of it, according to the directions of the ancestor. Why, then, or upon what principle, can he, by any act of his, forfeit or convey [413]*413this property to the state, not only to his prejudice, but to the prejudice of others who do not claim from him, but derive their right from the same fountain whence his title originated, from the deed of their common ancestor ? We think, therefore, that, to declare that the inheritance in this case was forfeited, would be giving to this act a construction far more extensive than we are warranted in doing by the words of it.
What confirms me in this opinion, that the legislature never intended to forfeit an estate tail for a longer period than the life of the tenant committing the offence, is the language employed in a subsequent part of the law. The tenth section directs all forfeited estates to be sold by the commissioners in their own name by a deed poll, and adds that such deed shall [361] convey all the right and title which the offender had at the time of the commission of his crime. It then proceeds to state what they mean by the estate of the offender, and says the purchaser shall have, hold, and enjoy the bargained premises as fully as the offender held, or might, or ought to hold the same. Clark bought this right and no more. It may be proper also to remark in this place, that the estate which he purchased was the estate which John Hinchman (the third) had at the time the offence was committed, and not the estate, which, had he continued seized for several years longer, he would have been entitled to under an act of assembly, passed at this subsequent period, enlarging estates tail.
In acts of a nature similar to this which we have been considering, and under which this forfeiture was had, where a person may be convicted of the crime imputed to him and forfeit his estate without notice, and without an opportunity of being heard in his defence, power puts on her severest countenance. If it be right in any case to extend punishment beyond the delinquent himself, and to deprive a child of that right which the laws of every civilized country have bestowed, and a power superior to all human institutions nature has sanctioned to succeed to the estate of his parent, surely it never should be done except where the law is clear [414]*414and explicit. Where the law is in any degree ambiguous, and will admit of two constructions, one consonant to justice and humanity, the other contrary to these principles, it never should be done. Judges in the worst of times have been ashamed to do what we are called upon to do, unless where the construction was forced upon them, and was unavoidable. Let us not, in this government professedly founded upon the rights of human nature, begin our administration of justice with the doctrines and maxims which sometimes dishonored the character of the nation from which we and our institutions have alike sprung; and let us never, if it can be avoided, involve innocence in those punishments, and subject it to those penalties which should be reserved exclusively for the head of the guilty.
We are therefore unanimously in favor of entering judgment for the plaintiff.
Cited in Den v. Dubois, 1 Harr. 285; Den v. Robinson, 2 South. 715.