Opinion of the court, by
Judge Sherman:
The result of the motion for a new trial in this cause must depend upon the question, which of .the parties has a valid legal title to the promises in question. The defendant has obtained a verdict» and that verdict ought not to be set aside if his title papers, connected with the evidence in the cause, show a subsisting legal title in him. In order to determine this question, it is necessary to ascertain the effect of the deed from Basil Abrams to John S. Wills, of May 1, 1801; the proceedings had under the attachment, at the suit of Ecuben Abrams against B. Abrams, and the grant by the government of a tract of land, including the premises in controversy, to the heirs of Nathaniel Massie, deceased.
The deed from B. Abrams to J. S. Wills, of the lot in question, dated May 1, 1801, is admitted to have been executed upon a gambling consideration.
By the act of the territorial government, then in force, entitled “ a law to suppress gaming,” it is provided, “that all conveyances, etc., made for a gambling consideration, shall inure to the use of the heir of the bargainer, etc., and vest the whole estate, and all the interest of such person in the land so bargained, to all intents and purposes,, in the heir of the bargainer, the same as if the bargainer had died intestate.”
It is believed that this act of the territorial government has never received a construction by our courts.
[403, 404]*403, 404It is contended by the plaintiff’s counsel, that the lot in question, by virtue of this act, became forfeited to the heirs of B. Abrams upon the execution of the deed from him to *Wills, and that they took the same discharged from all liability for his debts.
In the opinion of the court this construction is neither warranted by the words nor intent of the law. The legislature can, without doubt, attach forfeitures to the commission of offenses, and such forfeitures may be general, including all the property of the offender, subject only to actual liens, or limited in amount or kind, and restricted by provisions for the benefit of créditos and others, Whatever may be the nature or kind of forfeiture, it is never carried by construction beyond the clear expression of the statute creating it.
When a deed is founded on a gambling consideration, the statute vests in the heir of the bargainer all his interests to all intents and purposes, the same as if such bargainer had died intestate; the law considers the bargainer per hoc vice as dead; the heir takes the same as if the ancestor, instead of executing the conveyance, had that moment died. The estate does not become forfeited, but the grant is to inure to the benefit of the heir of grantor, and he takes the lands mentioned in the conveyance by virtue of the statute, the same as he would had they descended to him by the death of the ancestor. He takes as heir, and not as the grantee of government of a forfeited estate. The property vesting in him as heir, he necessarily takes with all the responsibilities and liabilities attached to that relation. The expression of the statute that the interest of the bargainer shall vest “in the heir the same as if the bargainer had died intestate,” would be rendered vain and useless by any other construction than that the land so coming to the heir shall in his hands be subject and liable to all claims that it would had it descended to him by the death of the bargainer.
The construction contended for by the plaintiffs would work manifest injustice in many eases. An individual who had obtained credit, and become indebted, could not well devise a more ready and easy way of protecting his property from his creditors than by conveying the same for a gambling consideration, if such conveyance was to inure to the use of his heirs, the natural objects of his care and bounty, to the exclusion of the claims of his creditor.
The expression *of a law should be clear, and the intent manifest, before a court could be justified in giving it a construction [405]*405that would obviously protect fraud and deprive creditors of their just claims upon the property of the debtor, and such would be the effect of this law, if the construction contended for by the plaintiffs should prevail. The heirs of B. Abrams would hold this estate as forfeited to them by the act of their ancestor, free from any liability to the claims of his creditors. We are satisfied such was not the intent of the territorial government in adopting this law; but that it was intended to protect the improvident from gambling away their property to the injury of their creditors and heirs, and that to effect this purpose the statute prevents all lands conveyed for a gambling consideration from vesting in the grantee named in the deed, but makes such deed inure to the use of the heir of the grantor, so that he shall take the lands subject to the same liabilities he would, had he inherited them in the usual course of descent.
It will be perceived upon the perusal of this statute that it nowhere expressly prohibits gaming, or subjects persons guilty thereof to any species of judicial prosecution, and it is difficult to perceive how a forfeiture of lands should result from the doing of an act neither prohibited nor punished.
At the time Basil Abrams executed the deed to J. S. Wills for a gambling consideration, the real, as well as personal estate of the debtor, was subject to the payment of his debts. If he was living, his real estate, if it would not extend in seven years for sufficient to satisfy the judgments against him, might be levied on, and sold. And in case of his dying intestate, the whole real estate of which he died seized, and which of course descended to his heirs, might, if necessary, be sold by the order of the court of probate for the payment of debts, or the judgment creditor might enforce a sale.
The heir took the estate with this legal liability or incumbrance attached thereto, and had B. Abrams died on the 1st May, 1801, the day of the date of the deed to J. S. Willis, without executing that deed, the lot now in question would have descended to Eleanor, his heir, subject to the payment of his just debts. The territorial law gave to the heir of a grantor for a gambling consideration no greater interest in the lands conveyed than if the same lands had come to the *heir by descent. Their lands are therefore subject to the payment of the debts of Basil Abrams.
If the deed from B. Abrams to Wills, inuring as it does by virtue of the statute to the benefit of his heirs, be considered as a voluntary conveyance, without valuable consideration from him to [406]*406them, the effect is the same, for by the statute of Elizabeth, then in force in the territory, as well as by the principles of the common law, such voluntary conveyance is void as against creditors.
It is said that admitting this property liable to payment of the debts contracted by B. Abrams before the conveyance to Wills, there was not evidence to warrant the jury in finding him so indebted.
This was a question of fact submitted by the court to the jury for their determination, and the evidence fully justified the finding. It appeared that immediately after executing the deed to J. S. Wills, B. Abrams shut himself up and kept concealed, until a few days thereafter ho left the country. He had, therefore, little or no opportunity of contracting debts, and after divesting himself of his property it is not presumable he would obtain extensive credit; and yet the auditors appointed under the attachment to adjust and examine the several claims against his estate, report a list of his creditors, to whom he was severally indebted in sums from $1.91f to $669.50, amounting in the whole to the sum of $1,996.22. In addition to this there was direct evidence of his indebtedness at the time of his executing the deed.
If the matter were even doubtful, it was the province of the jury to weigh the testimony and determine the fact, and the court ought not to disturb the verdict because the fact was not proved beyond doubt. It is sufficient that there was testimony going to establish the fact, especially in the absence of all proof' to the contrary and after the lapse of twenty years.
But it is said that admitting the sale by the auditors under the attachment transferred to the purchaser all the interest that B. Abrams ever had in the lot in controversy, yet as the deed from Massie to Abrams was executed before Massie had obtained a grant fromthe United States, although subsequent to his entry and survey, Abrams acquired but *an equitable interest, and the patent, after the death of Massie, having issued to his heirs, they acquired an estate by purchase, and the plaintiff claiming under a deed from their trustee has the legal estate.
This presents a question upon which the court have felt the most anxious solicitude, and upon which they have not arrived to a conclusion without doubt and embarrassment. It is a question of groat interest to the inhabitants of the Yirginia military district, as well as the parties to this suit.
[407]*407Nothing is more common than for the holder of a Virginia military land warrant to make an entry of the same, cause it to be surveyed and recorded, go into possession of the lands designated in such entry and survey, reside thereon for years, making large and valuable improvements, and die without obtaining a patent which is afterward issued to his heirs. If those heirs acquire the estate by purchase from the government, they must at law hold the same free from the debts and contracts of their ancestor; if by descent, the estate in their hands will be liable to the payment of the debts of their ancestor in the same manner and to the same extent it would had the patents issued to him in his lifetime. The question whether heirs acquire an estate in lands so situate by purchase or descent, is one, therefore, of great importance.
Nathaniel Massie, as early as 1795, made an entry of 1,900 acres, including the lands in controversy, in the books of the principal surveyor of the Virginia military district, and within a short time thereafter, caused a survey thereof to be made and recorded in conformity to the Virginia land law. He had done everything incumbent upon any holder of a warrant to appropriate the lands described in his survey, and had entitled himself to a patent therefor. He had, by the Virginia land law, acquired an indefeasible estate in the lands, and by. our statutes it was subject to taxation, dower, and many other incidents of real estate.
In Kentucky, where the titles to a large portion of the real property depend upon the location conforming to the Virginia land laws, it has been held that an entry or survey is an inchoate, legal title, and that lands so held will descend, may be devised, or aliened, and are subject to be sold on execution issuing from a court of law. Thomas v. Marshall, Hard. 19. It would seem to follow, as a necessary consequence, *that it must be considered as legal assets in the hands of the heir, subject to the payment of the debts of the ancestor. The heir inherits it as he would any legal estate to which the ancestor had an imperfect or incomplete title.
The act of Congress of August 10, 1790 (1 U. S. Laws 252), to enable the officers and soldiers of the Virginia line, on continential establishments, to obtain titles to certain lands lying northwest of the river Ohio, etc., after various provisions respecting the locations and surveys of said lands, directs that the President shall cause letters patent to be issued for the lands designated in said entries to the persons originally entitled thereto, theix* [408]*408heirs or assigns, or their legal representatives, their heirs or assigns. It is by virtue of this provision that the patent issued to the heirs of N. Massie. It is because they, standing in his place and representing him, are entitled to the same rights he had at his death. They take the same interest he would have taken had the patent issued to him in his lifetime.
The recitals in the patent show the consideration upon which it issued. The entry of the ancestor, the warrant under which it was made, the survey had thereon, and the acts of Congress regulating the appropriation of the land and the issuing of the patent, are all referred to, and all show it was not a gift by the government to the heirs of Massie, but that it was the execution of a trust in his favor, so far as the same could be executed after his death, by transferring to his heirs the naked legal title to lands which he had fully appropriated and for which he was in his lifetime entitled to a patent. There is no pretense of any consideration moving from the heirs for the grant under which it is claimed they hold as purchasers; on the contrary, the patent furnishes conclusive evidence that the consideration moved from the ancestor; that it was the services for which the warrant therein named issued, the location and survey in conformity to law, that caused the emanation of the patent. The ancestor had fully and legally appropriated the land. The naked legal title remained in the United States, as trustee, at the time of Massie’s death, and his heirs procuring that legal title by virtue of the act of Congress of 1790, vested in them no greater or other estate than their ancestor would have taken had the patent issued in his lifetime.
*It was said in Shelly’s case, 1 Rep. 98 : “ When the heir takes anything which might have vested in the ancestor, the heir should be in by descent. Then, although it first vested in the heir, and never in the ancestor, yet the heir shall take it in the nature and course of descent,” and the principle was adopted by the court in giving judgment. In Wood’s case, reported in 2 Rolle, determined in the court of wards, 3 Eliz., and recognized as law in Shelly’s case, it was held “ that if a man seized of the manor of S. covenants with another that when J. S. shall enfeoff him of the manor of D., then he will stand seized of the manor of S. to the use of the covenantee and his heirs. The covenantee dies, J. S. enfeoffeth the covenantor, the heir shall be adjudged in course and nature of descent, and yet it was neither a right, title, use, nor action that [409]*409descended, but only a possibility of a use which would neither be released nor discharged, yet it might, if the condition had been performed, have vested in the ancestor.”
It will be readily perceived that this case is stronger in most of its features than the case at bar. The covenantee had no estate or interest in the land ; none was to arise except upon the happening’of an uncertain event which did not take place until after his death. In the present case; the ancestor had done all that was required by law to perfect his claim to a grant from the government. His estate was not dependent upon any uncertain event. There was no contingency which could enlarge or diminish his estate, the mere form of sealing the grant was only wanting to evidence by the highest and best title known to our laws, his interest in the lands. He could have assigned the entry and survey, and the assignee would have been entitled to a patent in his own name, or he could have devised it, and the devisee would have had an indefeasible estate. He could have maintained ejectment against any person not having a grant from the government. In short, by his warrant, entry, and survey, he had acquired an incomplete or inchoate legal title to the land designated in his entry; this right and title was not destroyed by the death of the ancestor, but descended to the heir as part of his estate; and if a patent afterward issued to the heir it does not enlarge his estate or increase the quantum of his interest in the land, but changes *the evidence of his right from an entry and survey to a grant from the government in whom the mere legal title was vested in trust for those who should legally appropriate the land.
The case of Chapman v. Dalton, Plowd. 284, is, although not strictly analogous, illustrative of the same principle. D., the defendant, leased land for twenty-one years to J. C., and covenanted with lessee to make to him and to his assigns a good lease for twenty-one years, to commence immediately after the end of the first term; the lessee dies, having appointed an executrix; the executrix makes her executor and dies ; the first term expires. It was held that the executor of the executrix of the covenantee should have an action of covenant for the second lease, and that it would, in his hands, bo legal assets. The reasons of the court are not given in the report, but the decision is obviously on the ground that as the covenant was made with the first testator, the title thereto was derived from him to the plaintiff, and that which is [410]*410done, in performance of the covenant, ought to be in the plaintiff, in the same degree, as the covenant was in him, so that he shall have the lease in the like manner as he had the covenant.
If a lease, made to an executor in performance of a contract with the testator, would be legal as contradistinguished from equitable assets, in the hands of such executor, and for the reason that the right to such lease. was derived from the testator, then it would seem that, by analogy, the heir would take by descent those lands, the right to which the ancestor had by contract with government, and in performance of which contract a patent had issued to the heir.
It was held by'the court of appeals in Kentucky, in lessee of Gist’s heirs v. Robinet, 3 Bibb, 2, that a right to land, under the proclamation of 1763, neither located nor surveyed, could be devised; and although the devisor, after making the will, procured a warrant, caused a survey of the lands to be made, obtained a grant therefor, and died without republishing his will, it was decided that the devisee should hold the lands, the court at the same time recognizing the principle that lands acquired after the making of a devise could not pass thereby. In this case, although the warrant, entry, survey, and grant were all after the devise, yet they were all in execution of, and had reference to *the proclamation of 1763. By the issuing of the grant to the devisor, subsequent to the making of the will, he did not acquire a new estate ; it was not, in the language of the books, lands acquired after making the devise, or they would not have passed by the will, but descended to the heir.
“In case of an exchange, one of the exchangers enters, the other dies before entry; now the heir of him that had not entered may enter, and he shall be in by descent, although the father never had anything in it.” Jenk. 249; 14 Vin. 260. This is on the same principle recognized in Shelly’s caso, that if the act, which is to perfect the title to the estate, might have taken place during the life of the-ancestor, the heir shall be in by descent, although in fact the title was first perfected by the heir, and by his act. In the case at bar, the only act necessary to perfect the' title in Nathaniel Massie was the pealing the patent. This act might have taken place in his life, and would have perfected in him the legal title to the lands designated in his survey; the legal title is, after his death, perfected in his heirs by the doing of the only act necessary [411]*411to complete it. It would seem to result, from the authorities cited, that they would be in by descent, and not by purchase.
In the case of Smith v. Trigg, 8 Mod. 23, it was held that if a copyholder sui’render to the use of his will and devises to his heir, and then dies before admittance, the heir, after admittance, shall be in by descent.
In the case of Marks v. Marks, 10 Mod. 425, where lands were devised to be for life, remainder to B. in fee, provided that if C., within three months after the death of A., the tenant for life, should pay B. five hundred pounds, then to C. and his heirs. C. died during the life of the tenant for life, who afterward dies, and it was held that the heir of C. should be allowed to perform the condition of paying the money to B., and that he should take the land in course of descent from his ancestor C. Here, by the will, a mere executory contx-act is limited to the ancestor, without in terms being extended to his heirs, and by performance of the condition the estate might' have vested in him. The right to perform this condition descends to the heir; the vesting of the estate is a necessary consequence of such pei’formance, and the court therefore hold that the heir *shall be in the estate by descent, because the right to perform the condition upon which the estate depends came to him by descent.
It is a general rule that the heir shall not take by purchase when he may take the same estate in the land by descent. 7 Cranclx, and the authorities there cited.
If a man devises to his heir at law an estate, neither greater nor less than he would have taken without such devise, he shall be adjudged to take by descent, even though it be charged with incumbrances. 2 Bl. Com. and authorities there cited.
In Vent. 372, the court say it is a long-established rule that “.a man can not, either by conveyaxice at the common law or by limitation of uses or devise, make his right heir a pux*chaser.”
The court are of opinion that as the patent must have issued to Nathaniel Massie, had he been alive at its emanation, as he had at the time of his death an inchoate legal title to the lands designated in his sux’vey, which could be transferred, was subject to dower, the payment of taxes, and many other incidents of real estate; as he had a right to a patent therefor, which right vested at his death in his heix’s, and the patent issued to them from necessity, occasioned by his death; that they, standing in his place, and [412]*412¡representing his rights, are, by the principles of the common, law, .in this estate by descent, and not by purchase.
This opinion renders it unnecessary to give any construction to •the two acts of the legislature, vo'l. 18, p. 93, and vol. 19, p. 80, ap-pointing a trustee for the heirs of Nathaniel. Massie, deceased, or to determine the effect upon this.case of the provisions therein contained, that the title which shall be acquired by said heirs, by virtue of any proceedings under said act, shall be considered in all courts as being taken by descent.
The only remaining question necessary to be considered is, whether the heirs of Nathaniel Massie, and those claiming under ■them, are estopped from denying his title to the lots in controversy, or, in other words, whether the patent inures to the benefit of the purchasers from Massie, and those deriving title from such purchasers.
Massie, after making his entry and survey, and before the issuing of a patent, conveyed the lot in question to Basil *Abrams for a valuable consideration, by deed of bargain and sale, with covenants binding himself and his heirs to warrant and defend the title.
The authorities, both English and American, abundantly and clearly show that had N. Massie, after executing his deed to B. Abrams, acquired, by patent from the government or otherwise, a perfect title to the lands conveyed by him, he, his heirs, and all others claiming under him, would have been estopped from setting up the after-acquired title to the prejudice of his grantee. 1 Ld. Raym. 729; 12 Johns. 201; 13 Johns. 316; 4 Bibb, 436. In Coke Litt. 352, a, it is expressly said that privies in blood, as the heir, are bound by, and may take advantage of estoppels.
The heirs of Massie, standing in his place and inheriting from him, are bound by his warranty, and estopped by his grant from controverting the goodness of his title at the time he conveyed.
If -the heirs of Massie could recover these lands on the ground that their ancestor, when he conveyed, had not a perfect legal title, they, claiming by descent from him, would be responsible in consequence of such recovery to his grantee, and those claiming title from him, upon the covenants of warranty contained in his deed, and it is to avoid this circuity of action that the heir has been held to be estopped from denying the title of his ancestor.
This doctrine would not apply were they purchasers from gov[413]*413ment; but having derived all their interest in this estate by descent from their ancestor, Massie, they areestopped by his grant, and bound by his covenants, in which they are named.
We have no doubt that N. Massie, after his entry and survey, had a right to dispose of and alien the lands included in such survey; and when a patent afterward issued either to him or his heirs, whereby the legal title was perfected, it inured to the benefit of his grantee, and all persons claiming under such grantee, so as to perfect their title.
This opinion renders it unnecessary to examine the title of the plaintiff to the lot in controversy; the defendant having the legal title is entitled to judgment upon the verdict. The motion for a new trial must be overruled.