By the Court, Savage, C. J.
The occupation of the premises by Johannes Beekman before and until his death, and by his family for seventeen years before the marriage of Eve with John McCrea, are, prima facie, sufficient to shew [363]*363that the title, or, at any rate, the right of possession, was in the Beekmans. Whatever interest Johannes Beekman had in the premises became vested in Eve, his daughter, as the last survivor. The marriage of John McCrea with Eve, and the birth of a child, gave him an interest in the premises as tenant by the curtesy initiate. The lessor of the plaintiff shews no paper title, but facts from which we may fairly infer that his mother was the owner, and that his father had an estate for life. The father being dead, and the mother also, the heir of the mother is entitled to recover, unless he is barred by the deed of his father, or by lapse of time.
1. What title passed by the deed of John McCrea 1 It is a general rule, that no one can convey a better title than he has; and as it appears that he had an estate for his own life, the fair presumption would be that he intended to convey the estate which he had in the premises. But the deed purports to convey an estate in fee ; and hence it is argued that we ought to presume that he was authorized by a conveyance from himself and wife to trustees, and by the trustees to him, to convey in the manner which he did ; and the non-productian of those conveyances is supposed to be accounted for on the ground that they must have been burned in the house of the grantee in 1797. “Presumptions” of grants “are adopted from the general infirmity of human nature, the difficulty of preserving muniments of title, and the public policy of supporting long and uninterrupted possessions. They are founded upon the consideration that the facts are such as could not, according to the ordinary course of human affairs, occur, unless there was a transmutation of title to, or an admission of an existing adverse title in the party in possession. They may, therefore, be encountered and rebutted by contrary presumptions, and can never fairly arise where all the circumstances are perfectly consistent with the nonexistence of a grant.” (7 Wheaton, 109.)
If we apply this doctrine of presumptions to the present case, we must presume a conveyance to John McCrea, if the facts are such as could not occur without such conveyance. Could not, then, a tenant by the curtesy convey in fee with[364]*364out having an estate in fee ? The parliament of Great Britain supposed that such an act might be done, and guarded against it by statute 32 Henry 8, ch. 28, which provision was re-enacted in this state at an early day, (1 R. L. 181, 2, 3;) by which it is enacted, that no fine, feoffment or other act of the husband in relation to the freehold or inheritance of his wife, shall prejudice such wife or her heirs. But even if such a presumption were to be allowed, there are facts to rebut it. Although the house of Vanderheyden was burnt, the deed from Shipboy was not burnt. If there were conveyances to divest the title of the wife, is it not reasonable to suppose that they would be found with the deed from MeCrea, as they must be links of the same chain of title ? The natural presumption would be, that they would have been recorded with McCrea’s deed. Presumption in courts of law is founded upon the nature and character of man, and his disposition to enjoy and preserve what is his own.
I conclude, therefore, that there is nothing in the fact of McCrea’s conveying a fee, to shew that he had the capacity to convey such an estate when it is shewn that he had only an estate for life, and when, also, the form of conveyance used by him carried only such estate as the grantor had. If a greater estate is claimed under him, it should not be left to presumption so ill sustained, to prove that he had capacity to grant such estate.
2. Is the lessor barred by lapse of time ? It is contended that the lessor’s right of entry (if any) accrued in 1780, at the death of his mother, and as more than 20 years elapsed before suit brought, that therefore this action cannot be maintained. It is said that John Me Crea, having only an estate for life, by attempting to convey a greater estate than he had, forfeited his estate, and that the heir of the wife might have entered upon her death. In this point there are two subjects of inquiry presented: 1. Did the tenant by the curtesy forfeit his estate by attempting to convey a fee ? and 2. If he did, when did the heir’s right of entry accrue ? was it on the death of his mother or his father ? 1. Estates for life are considered at- common law as strict feuds, and are forfeitable -for certain causes. .'If tenant for life, including tenant by the [365]*365curtesy, takes upon him. to convey a greater - estate than he has, in such a manner as to divest the estate in reversion or remainder, such conveyance will operate as a forfeiture of his estate for life, and the reason given (a very singular one in this country,) is because it is a renunciation of the feudal connection between him and his lord. (1 Cruise, 122, § 36, and 173, § 31. Co. Litt. 252, a. Com. Dig. Forf. a. 1.) The form of conveyance for this purpose must be such as to divest the estate of the reversioner or remainderman, and these were three: feoffment with livery of seisin, fine, and common recovery; but a conveyance by lease and release, or bargain and sale, is no forfeiture.
If the conveyance in this case was by feoffment, the injury is one which is termed a discontinuance, the entry of the feoffee being lawful during the continuance of the particular estate, but by his continuance in possession after the death of the feoffor, the legal estate of the heir was gone or atleast suspended, and for a while discontinued. When the right of entry is thus lost, and the party can only recover by action, the possession is said to be discontinued. By the common law, the alienation of a husband who was seized in right of his wife, worked a discontinuance of the wife’s estate, till the statute 32 Hen. 8, eh. 28, provided that no act by the husband alone should work a discontinuance of, or prejudice the inheritance or freehold of the wife. (Jacob’s Law D. tit. Discontinuance.)
In order to prove a forfeiture, therefore, in the conveyance by Me Crea, it should have been shewn to have been a feoffment with livery of seisin. As this mode of conveyance is nearly obsolete in England and very little used, and the more common species of assurance being lease and release and bargain and sale, we will not presume that a feoffment with livery was executed in this instance. It is equally probable that one of the other modes of conveyance was adopted, which, though in terms purporting to convey a fee, yet in reality transfer no more or greater estate than the grantor had. The fact, then, of a forfeiture is not satisfactorily shewn. But suppose the conveyance to have been a feoffment, 2. Did a right of entry accrue 1 and was the heir bound to enter1? Lit[366]*366tleto.n says, (sect. 594,) “ If a man be seized of land as in right of his wife, and thereof enfeoff another and dieth, the wife may not enter, but is put to her action, the which is called oui in vita.” But this is altered, says Coke, since our author wrote, by the statute 32 Hen.
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By the Court, Savage, C. J.
The occupation of the premises by Johannes Beekman before and until his death, and by his family for seventeen years before the marriage of Eve with John McCrea, are, prima facie, sufficient to shew [363]*363that the title, or, at any rate, the right of possession, was in the Beekmans. Whatever interest Johannes Beekman had in the premises became vested in Eve, his daughter, as the last survivor. The marriage of John McCrea with Eve, and the birth of a child, gave him an interest in the premises as tenant by the curtesy initiate. The lessor of the plaintiff shews no paper title, but facts from which we may fairly infer that his mother was the owner, and that his father had an estate for life. The father being dead, and the mother also, the heir of the mother is entitled to recover, unless he is barred by the deed of his father, or by lapse of time.
1. What title passed by the deed of John McCrea 1 It is a general rule, that no one can convey a better title than he has; and as it appears that he had an estate for his own life, the fair presumption would be that he intended to convey the estate which he had in the premises. But the deed purports to convey an estate in fee ; and hence it is argued that we ought to presume that he was authorized by a conveyance from himself and wife to trustees, and by the trustees to him, to convey in the manner which he did ; and the non-productian of those conveyances is supposed to be accounted for on the ground that they must have been burned in the house of the grantee in 1797. “Presumptions” of grants “are adopted from the general infirmity of human nature, the difficulty of preserving muniments of title, and the public policy of supporting long and uninterrupted possessions. They are founded upon the consideration that the facts are such as could not, according to the ordinary course of human affairs, occur, unless there was a transmutation of title to, or an admission of an existing adverse title in the party in possession. They may, therefore, be encountered and rebutted by contrary presumptions, and can never fairly arise where all the circumstances are perfectly consistent with the nonexistence of a grant.” (7 Wheaton, 109.)
If we apply this doctrine of presumptions to the present case, we must presume a conveyance to John McCrea, if the facts are such as could not occur without such conveyance. Could not, then, a tenant by the curtesy convey in fee with[364]*364out having an estate in fee ? The parliament of Great Britain supposed that such an act might be done, and guarded against it by statute 32 Henry 8, ch. 28, which provision was re-enacted in this state at an early day, (1 R. L. 181, 2, 3;) by which it is enacted, that no fine, feoffment or other act of the husband in relation to the freehold or inheritance of his wife, shall prejudice such wife or her heirs. But even if such a presumption were to be allowed, there are facts to rebut it. Although the house of Vanderheyden was burnt, the deed from Shipboy was not burnt. If there were conveyances to divest the title of the wife, is it not reasonable to suppose that they would be found with the deed from MeCrea, as they must be links of the same chain of title ? The natural presumption would be, that they would have been recorded with McCrea’s deed. Presumption in courts of law is founded upon the nature and character of man, and his disposition to enjoy and preserve what is his own.
I conclude, therefore, that there is nothing in the fact of McCrea’s conveying a fee, to shew that he had the capacity to convey such an estate when it is shewn that he had only an estate for life, and when, also, the form of conveyance used by him carried only such estate as the grantor had. If a greater estate is claimed under him, it should not be left to presumption so ill sustained, to prove that he had capacity to grant such estate.
2. Is the lessor barred by lapse of time ? It is contended that the lessor’s right of entry (if any) accrued in 1780, at the death of his mother, and as more than 20 years elapsed before suit brought, that therefore this action cannot be maintained. It is said that John Me Crea, having only an estate for life, by attempting to convey a greater estate than he had, forfeited his estate, and that the heir of the wife might have entered upon her death. In this point there are two subjects of inquiry presented: 1. Did the tenant by the curtesy forfeit his estate by attempting to convey a fee ? and 2. If he did, when did the heir’s right of entry accrue ? was it on the death of his mother or his father ? 1. Estates for life are considered at- common law as strict feuds, and are forfeitable -for certain causes. .'If tenant for life, including tenant by the [365]*365curtesy, takes upon him. to convey a greater - estate than he has, in such a manner as to divest the estate in reversion or remainder, such conveyance will operate as a forfeiture of his estate for life, and the reason given (a very singular one in this country,) is because it is a renunciation of the feudal connection between him and his lord. (1 Cruise, 122, § 36, and 173, § 31. Co. Litt. 252, a. Com. Dig. Forf. a. 1.) The form of conveyance for this purpose must be such as to divest the estate of the reversioner or remainderman, and these were three: feoffment with livery of seisin, fine, and common recovery; but a conveyance by lease and release, or bargain and sale, is no forfeiture.
If the conveyance in this case was by feoffment, the injury is one which is termed a discontinuance, the entry of the feoffee being lawful during the continuance of the particular estate, but by his continuance in possession after the death of the feoffor, the legal estate of the heir was gone or atleast suspended, and for a while discontinued. When the right of entry is thus lost, and the party can only recover by action, the possession is said to be discontinued. By the common law, the alienation of a husband who was seized in right of his wife, worked a discontinuance of the wife’s estate, till the statute 32 Hen. 8, eh. 28, provided that no act by the husband alone should work a discontinuance of, or prejudice the inheritance or freehold of the wife. (Jacob’s Law D. tit. Discontinuance.)
In order to prove a forfeiture, therefore, in the conveyance by Me Crea, it should have been shewn to have been a feoffment with livery of seisin. As this mode of conveyance is nearly obsolete in England and very little used, and the more common species of assurance being lease and release and bargain and sale, we will not presume that a feoffment with livery was executed in this instance. It is equally probable that one of the other modes of conveyance was adopted, which, though in terms purporting to convey a fee, yet in reality transfer no more or greater estate than the grantor had. The fact, then, of a forfeiture is not satisfactorily shewn. But suppose the conveyance to have been a feoffment, 2. Did a right of entry accrue 1 and was the heir bound to enter1? Lit[366]*366tleto.n says, (sect. 594,) “ If a man be seized of land as in right of his wife, and thereof enfeoff another and dieth, the wife may not enter, but is put to her action, the which is called oui in vita.” But this is altered, says Coke, since our author wrote, by the statute 32 Hen. 8, by the provision of which statute, the wife and her heirs, after the decease of her husband, may enter into the lands or tenements of the wife, notwithstanding the alienation of her husband."
From what has already been said, and from the cases referred to, it would seem that the criterion of the forfeiture is the actually divesting of the estate of the remainderman or reversioner—the passing an estate which the grantor has no right to pass ; and as the statute has interposed in this case to prevent such an effect from the feoffment of the husband, I think it follows that a feoffment in such case by the husband of his wife’s estate does not work a forfeiture. It is, perhaps, not material to consider that question ; but the more important inquiry will .be, whether the heir is bound to enter during the life of the tenant for life, supposing he has a right so to do. The statute has been understood as refusing the right of entry till the husband’s death: “ and the heirs of the wife shall not be barred of their action after the death of their father and mother by the deed of their father, if they demand by action the inheritance of their mother which their father did alien in the life time of their mother.” (1 R. L. 183, § 7.) Lord Coke seems to understand the statute, that no right of entry exists till the death of the husband. He is so understood by Jacobs, in his dictionary, who says, “ Though if the husband hath issue, and maketh a feoffment in fee of his wife’s land, and his wife dieth, the heir of the wife shall not enter during the husband’s life, neither by the common law, nor by the statute,” citing 1 Inst. 326.
In the case of The Earl of Pomfret v. Lord Windsor, (2 Ves. sen., 482,) Lord Hardwicke expresses an opinion that in case of a fine by tenant for life, which, as soon as levied, operates a forfeiture, the remainderman or reversioner may enter presently, but is not bound so to do;' and therefore the law gives him five years after the death of the tenant for life, because he has no reason to look until the natural determin[367]*367ation of the estate. So Lord Ellenborough, in Doe, ex dem. Cook, v. Danvers, (7 East, 321,) says, that “ If a forfeiture were committed, the party entitled to enter for it, was not bound to do so.” '
In the state of Massachusetts, this question has been twice decided, (9 Mass. Rep. 508, and 15 Mass. Rep. 472;) the last of which cases was Wallingford v. Hearl, in which it appeared that the defendant’s grand-father died seized in 1770, and the premises in question were assigned to the widow for her dower. She died in 1810, and the demandant entered in 1811. The tenant proved that he and those under whom he held had been in peaceable possession, claiming the premises which were under improvement, for 30 years and upwards. It was contended for the tenant, that as the right of entry was barred by 20 years possession, and as the reversioner may enter on the disseisor during the continuance of the particular estate, and more than that time having elapsed, the action could not be maintained. But Parker, Ch. J., in delivering the opinion of the court, says, “ The demand-ant’s right of entry accrued on the death of the tenant for life ; that if he might have entered in consequence of the disseisin of the tenant for life, he was not bound to do so. He might well suppose that the tenant had entered under a contract with her who was seised of the freehold.
So in this case, the lessor might well suppose that Vanderheyden had purchased only the life estate of John McCrea, and he was not bound to look after it till the natural termination of the life estate. I am of opinion, therefore, 1. That the lessor has shewn a sufficient title to enable him to recover ; 2. That there is no ground to presume a title in fee in John McCrea, but only a life estate as tenant by the curtesy; 3. That no forfeiture is shewn of his life estate, because, 1. It does not appear that he conveyed by feoffment with livery of seisin ; and 2. If it did so appear, the statute prohibits the discontinuance which such a conveyance would produce at common law; and therefore, as the estate of the reversioner is not affected, there is no forfeiture. I am aware that the cause of forfeiture is said to be the disloyalty of the [368]*368tenant for life to his lord; but I consider the true criterion of forfeiture, the passing the estate which he ought not to ■ pass. 4. That if a forfeiture was shewn, yet the reversion-er *s not bound to enter until the natural termination of the life estate, as the law does not require him to look after the estate, the presumption being that the tenant in possession holds by such a conveyance as the tenant for life had a right to give. I am therefore of opinion that the plaintiff is enti■tled to judgment in the two first causes.
The third suit
Can such a possession, under such a deed, be considered adverse ? It is true, that a possession taken at first under the true owner may subsequently become adverse; but there must be some disclaimer of the owner’s title, and some notorious act or claim under the new title sufficient to give character to it. (5 Cowen, 484.) It does not appear that Vanderheyden ever disclaimed the title of McCrea to this alley, or ever claimed to hold it under Shipboy, adversely to the McCrea title. But suppose it to be so, does that affect the plaintiff’s rights 1 The present lessor claims it as the inheritance of his mother, and has shewn prima fade at least that he is entitled to it as her heir. For the reasons already as[369]*369signed, he could not assert his title, or was not obliged to do so till the natural termination of the life estate of the tenant by the curtesy. That the reversioner cannot assert his claim during the continuance of the particular estate, needs no authority to support it. That the statute does not run against the heir during the continuance of the tenancy by the curtesy, was decided in the case of Jackson, ex dem. Swartwout, v. Johnson, (5 Cowen, 74.)
It was impossible for the lessor therefore to prosecute within 20 years after the date of Shipboy’s deed, except upon the ground of forfeiture; and that I think I have shewn he could not do, at all events was not bound to do. The result then is, that the Shipboy deed can have no possible effect in this case; and if so, this third cause depends upon the same principles as the other two, and the plaintiff is entitled to judgment.
Judgment for the plaintiff.
There were three suits brought against the tenants of the present defendants, who were admitted to defend as landladies.