The Cháncelos..
There was sufficient evidence in this; case to warrant the jury in finding, that the title to the premises in question was in Medcef Eden the elder, at the time lie made his will, and at the time of his death. He was in possession of the premises by his tenants, and claiming title thereto, immediately after the revolution; and such possession was continued under him and his devisee until 1805. This was sufficient evidence of ownership to entitle the plaintiff in the court below to recover against any person who could not show a better title. The jury were also justified in finding that the mortgage was not a valid and subsisting incumbrance on the premises at the time it %vas assigned to Winter, in September, 1804.
All these questions were properly submitted to the jury as matters of fact, and were passed upon by them. They could not have found a verdict for the plaintiff in ejectment, without deciding that the alleged assignment of the mortgage to Winter was a forgery, so far as respected Medcef Eden the younger; because that assignment also contained, a valid conveyance of all bis estate in the premises. If the jury erred on that subject, the remedy was by an application for a new trial; and the party may still recover back the premises in a new action.
John Pelletreau was directly interested to have the lessors of the plaintiff recover, and therefore could not originally have been called by them as a witness; hut being called and examined by the other party as to a particular fact, the [201]*201court decided he might be examined by the plaintiffs’ counsel generally. I am not aware of any case in which a party is compelled to call a person as a witness who is directly interested against him. If the subscribing witness to an instrument is interested at the trial, so that he cannot be examined, secondary evidence may be admitted. (Swire v. Bell, 5 Term Rep. 371.) It cannot, therefore, be necessary for a party to call a witness who is interested against him, and in whose veracity he has no confidence. But if he elects to call such a witness, it is an admission of his credibility, and the other party may examine him generally. Cases may occur, where suits are brought for distinct causes of action, in which a witness may he interested in one part of the controversy only, and not liable for the costs of either. It is the constant practice of the court of chancery in such cases, to permit the person to be examined as to that part of the controversy in which he has no interest. If such a case should occur in a court of common law, such court probably would permit him to be sworn specially, on the application of a party who could not call him as a witness generally. The defendants in the ejectment having called Pelletreau to testify in relation to matters in which they knew his interest was against them, I think they were precluded from objecting to his examination by the other'party. -
But the principal question in this cause is as to the validity of the devise of Medcef Eden the younger. Two kinds ' of disseisin are mentioned in the English law books. The one was a disseisin in fact, which actually changed and divested the seisin of the original owner of the freehold, and deprived him of all right in relation thereto, except the mere right of entry and of property ; and which, under certain circumstances, was still further reduced to a mere right of action, the right of entry being lost.
By this species of disseisin the wrong doer acquired a fee simple, and the actual seisin of the property, together with nearly all the rights of the real owner; and all estates depending on the original seisin were divested or displaced. The other kind of disseisin was called disseisin by election, because the owner might elect to consider himself disseised [202]*202for the sake of the remedy by action of novel disseisin; but if he did not elect to consider himself disseised, the freehold was not divested, but still continued in him. (Blenden v. Baugh, Cro. Car. 302.)
Whether, under the British statutes since the abolition of military tenures, there is any disseisin which will deprive the owner of property of the power of devising the same, is a question which does not arise under the facts of this case. The statute 34 and 35 Hen. 8, (c. 5, sec. 4,) authorizes any person having a sole estate or interest in fee simple of and in any manors, lands, tenements, rents or other hereditaments in possession, reversion or remainder, to devise the same. And in Goodright v. Forrester, (8 Easts Rep. 567,) Lord Ellenborough appears to have put some stress on the words in possession, reversion or remainder, as words of restriction or limitation. Where the true owner is absolutely divested of his estate, and the same is vested in the disseisor by a disseisin in fact, according to the ancient doctrines of the feudal law, especially if the right of entry is taken away so as to reduce the owner’s claim to a mere right, it may not be correct to call it an estate or interest in possession, in the words of the British statute, although it is still an hereditament and descendible. Our statute of wills provides, “ that any person having any estate of inheritance either in severalty, in .coparcenary, or in common, in any lands, tenements or hereditaments, may, at his own free will and pleasure, give or devise the same,” &c. (Sess. 36, ch. 23, sec. 1.) It is hardly possible, in broader and more explicit terms, to give a general power to dispose of any property, right or interest in real estate by will, whether the same is a vested freehold in possession of the testator or a mere descendible hereditament or interest therein, in respect to which, he had only a right of entry, or a mere right of action. But as the legislature, in the late revision, have settled the rule of property as to all future devises, and being satisfied there was no actual disseisin of the estate of Medcef Eden the younger proved on the trial, I think it is unnecessary for me to express any opinion as to the power of a disseisee to devise, either under the British statute of wills or our own.
[203]*203Disseisin in fact and disseisin by election have been so frequently confounded, that, in examining the dicta of judges, it is sometimes difficult to understand to which species of disseisin they allude, without referring particularly to the facts of the case which they had under consideration at the time such dicta were delivered. But, by a careful examination of the authorities, it will he found that there could be no disseisin in fact, except by the wrongful entry of a person claiming the freehold, and an actual ouster or expulsion of the true owner, or by some other act which was tantamount; such as a common law conveyance, with livery of seisin, by a person actually seized of an estate of freehold in the premises ; or some one lawfully in possession representing the freeholder, (1 Instit. 330, C. note 1 ;) or by a common recovery, in which there was a judgment for the freehold, and an actual delivery of seisin by the execution, or by levying a fine, which is an acknowledgment of a feoffment of record. (2 Bl. Com. 348. Co. Litt. 330, C. note 1. Doe v. Thompson, 5 Cowen's Rep. 371. Smith v. Burtis, 6 Johns. Rep. 197.)
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The Cháncelos..
There was sufficient evidence in this; case to warrant the jury in finding, that the title to the premises in question was in Medcef Eden the elder, at the time lie made his will, and at the time of his death. He was in possession of the premises by his tenants, and claiming title thereto, immediately after the revolution; and such possession was continued under him and his devisee until 1805. This was sufficient evidence of ownership to entitle the plaintiff in the court below to recover against any person who could not show a better title. The jury were also justified in finding that the mortgage was not a valid and subsisting incumbrance on the premises at the time it %vas assigned to Winter, in September, 1804.
All these questions were properly submitted to the jury as matters of fact, and were passed upon by them. They could not have found a verdict for the plaintiff in ejectment, without deciding that the alleged assignment of the mortgage to Winter was a forgery, so far as respected Medcef Eden the younger; because that assignment also contained, a valid conveyance of all bis estate in the premises. If the jury erred on that subject, the remedy was by an application for a new trial; and the party may still recover back the premises in a new action.
John Pelletreau was directly interested to have the lessors of the plaintiff recover, and therefore could not originally have been called by them as a witness; hut being called and examined by the other party as to a particular fact, the [201]*201court decided he might be examined by the plaintiffs’ counsel generally. I am not aware of any case in which a party is compelled to call a person as a witness who is directly interested against him. If the subscribing witness to an instrument is interested at the trial, so that he cannot be examined, secondary evidence may be admitted. (Swire v. Bell, 5 Term Rep. 371.) It cannot, therefore, be necessary for a party to call a witness who is interested against him, and in whose veracity he has no confidence. But if he elects to call such a witness, it is an admission of his credibility, and the other party may examine him generally. Cases may occur, where suits are brought for distinct causes of action, in which a witness may he interested in one part of the controversy only, and not liable for the costs of either. It is the constant practice of the court of chancery in such cases, to permit the person to be examined as to that part of the controversy in which he has no interest. If such a case should occur in a court of common law, such court probably would permit him to be sworn specially, on the application of a party who could not call him as a witness generally. The defendants in the ejectment having called Pelletreau to testify in relation to matters in which they knew his interest was against them, I think they were precluded from objecting to his examination by the other'party. -
But the principal question in this cause is as to the validity of the devise of Medcef Eden the younger. Two kinds ' of disseisin are mentioned in the English law books. The one was a disseisin in fact, which actually changed and divested the seisin of the original owner of the freehold, and deprived him of all right in relation thereto, except the mere right of entry and of property ; and which, under certain circumstances, was still further reduced to a mere right of action, the right of entry being lost.
By this species of disseisin the wrong doer acquired a fee simple, and the actual seisin of the property, together with nearly all the rights of the real owner; and all estates depending on the original seisin were divested or displaced. The other kind of disseisin was called disseisin by election, because the owner might elect to consider himself disseised [202]*202for the sake of the remedy by action of novel disseisin; but if he did not elect to consider himself disseised, the freehold was not divested, but still continued in him. (Blenden v. Baugh, Cro. Car. 302.)
Whether, under the British statutes since the abolition of military tenures, there is any disseisin which will deprive the owner of property of the power of devising the same, is a question which does not arise under the facts of this case. The statute 34 and 35 Hen. 8, (c. 5, sec. 4,) authorizes any person having a sole estate or interest in fee simple of and in any manors, lands, tenements, rents or other hereditaments in possession, reversion or remainder, to devise the same. And in Goodright v. Forrester, (8 Easts Rep. 567,) Lord Ellenborough appears to have put some stress on the words in possession, reversion or remainder, as words of restriction or limitation. Where the true owner is absolutely divested of his estate, and the same is vested in the disseisor by a disseisin in fact, according to the ancient doctrines of the feudal law, especially if the right of entry is taken away so as to reduce the owner’s claim to a mere right, it may not be correct to call it an estate or interest in possession, in the words of the British statute, although it is still an hereditament and descendible. Our statute of wills provides, “ that any person having any estate of inheritance either in severalty, in .coparcenary, or in common, in any lands, tenements or hereditaments, may, at his own free will and pleasure, give or devise the same,” &c. (Sess. 36, ch. 23, sec. 1.) It is hardly possible, in broader and more explicit terms, to give a general power to dispose of any property, right or interest in real estate by will, whether the same is a vested freehold in possession of the testator or a mere descendible hereditament or interest therein, in respect to which, he had only a right of entry, or a mere right of action. But as the legislature, in the late revision, have settled the rule of property as to all future devises, and being satisfied there was no actual disseisin of the estate of Medcef Eden the younger proved on the trial, I think it is unnecessary for me to express any opinion as to the power of a disseisee to devise, either under the British statute of wills or our own.
[203]*203Disseisin in fact and disseisin by election have been so frequently confounded, that, in examining the dicta of judges, it is sometimes difficult to understand to which species of disseisin they allude, without referring particularly to the facts of the case which they had under consideration at the time such dicta were delivered. But, by a careful examination of the authorities, it will he found that there could be no disseisin in fact, except by the wrongful entry of a person claiming the freehold, and an actual ouster or expulsion of the true owner, or by some other act which was tantamount; such as a common law conveyance, with livery of seisin, by a person actually seized of an estate of freehold in the premises ; or some one lawfully in possession representing the freeholder, (1 Instit. 330, C. note 1 ;) or by a common recovery, in which there was a judgment for the freehold, and an actual delivery of seisin by the execution, or by levying a fine, which is an acknowledgment of a feoffment of record. (2 Bl. Com. 348. Co. Litt. 330, C. note 1. Doe v. Thompson, 5 Cowen's Rep. 371. Smith v. Burtis, 6 Johns. Rep. 197.)
In this case there was no expulsion of the tenant of the freehold, and Medcef Eden the younger did no act which could possibly be construed into an election to consider himself disseised. When Boyd took possession of the premises in 1805, it was during the life of Joseph Eden, and of course before the happening of the contingency which afterwards divested the estate acquired under the conveyances of the first of September, 1804, and the first of May, 1805. By those conveyances Boyd acquired all the right of Joseph Eden, which was an estate in fee, subject, however, to be defeated by the death of Joseph without issue, during the lifetime of Medcef. His entry, therefore, was congeable, and divested no estate. None of the conveyances executed during the life of Joseph Eden were common law conveyances, with livery of seisin, and of course divested no rights hut those of the grantors. By the death of Joseph Eden in 1813, the title vested in Medcef; and the holding over of the person in possession, after the termination of his estate in the premises, could not be a disseisin of the rightful owner. After that [204]*204time, the rights of the parties were not altered previous td the death of Medcef Eden. There was then nothing to prevent the operation of his will, unless the bare holding over of a tenant for life, after the determination of his estate, and claiming the fee, can have that effect.
There is no case in the English books, where it has been holden that a mere adverse possession, not amounting to a disseisin, is sufficient to prevent the owner from devising. And in Goodright v. Forrester, (1 Taunton, 604, 613,) Mansfield, C. J. doubts whether even a technical disseisin has that effect at the present day. 8o far'as there is any authority on the subject in our own reports, it is in favor of the right to devise, notwithstanding a mere adverse possession, (Jackson v. Rodgers, 1 Johns. C. 33 ;) and such I believe has been the general understanding of the profession in this state. The common opinion as to the effect of a technical or actual disseisin has probably been different.
The statute against champerty has no application to this subject. That is only in affirmance of the common law. It superadds penalties, but does not alter the legal effect of the sale of a pretended title. The penalties inflicted by that statute .are not applicable to the case of a devisor or devisee. Admitting the will to be in the nature of a conveyance, it could only take effect upon the death of the testator, when it would be too late to enforce the penalty against him ; and it would be a singular proceeding to attempt to punish the devisee for the act of a devisor. He may refuse to take a conveyance, but I am not aware that he can prevent the operation of an absolute devise, any more than an heir at law can prevent a descent. Besides, such a construction of the statute might frequently cast the property, by descent, upon the person who was wrongfully withholding the possession from the true owner.
It has frequently been decided that judicial sales and assignments under the insolvent acts, or proceedings in bankruptcy, are not within the operation of that statute ; and I can see no reasons why it should be applied to a devise, which are not equally applicable to such sales and assignments. There can be no danger that a man will devise his [205]*205estate with a view to litigation, which cannot take place- till after his death. It is much more reasonable to suppose he would confess a judgment, and suffer the estate to be sold on execution for that purpose.
I think there is no error in the decision of the court, in the points excepted to by the defendants below; and that the judgment of the supreme court should be affirmed.
This being the unanimous opinion of the court, the judgment of the supreme court was thereupon affirmed with costs.