Baldridge v. McFarland

The opinion of the court was delivered by Lowrie, J. This is a gift to Mrs. Jarvis in tail, or else it is a life estate in her with remainder to her children. The grant is to her and the heirs of her body begotten, or to be begotten, as tenants in common, and to their heirs, and as we cannot know who her heirs would be until her death, the remainder, if it is one, would seem to be necessarily contingent: 2 Cruise Dig. 328; 1 Inst. 298, a. If the principle of Findlay v. Riddle, 3 Binn. 139, 2 Rawle 168, rules this case, then it is such a life estate and remainder, and then it follows that the extinguishment of the life estate, by adverse possession of 21 years, destroyed the remainder that depended on it. But the court below treated'this deed as creating an estate tail, and so we incline to regard it: Co. Litt. 376, b; 8 Com. Bench Rep. 876; 4 Barn. & C. 610; 5 East 548; 7 Term Rep. 531; 1 East 229; 8 Term Rep. 518; 5 Id. 299-304; 3 East 548. They are to be in the character, and therefore in the quality of heirs, the freehold merges in the inheritance, and the two limitations are united and executed in possession in the ancestor, and form one estate of inheritance. It seems to follow from this that the whole estate is extinguished by an adverse possession of 21 years. Our statute must mean this, when it requires that the plaintiff or his “ ancestors or predecessors” must have been in possession within that time. Besides, our statute is merely a re-enactment of the statute 21 Jac. 1, c. 16, and Mr. Angelí in his Treatise on Limitations, p. 46, shows that such is the interpretation of this statute, referring to 3 Cruise Dig. 481; Plowd. 374; 5 Barn. & A. 215; 3 Brod. & B. 217; 6 Mass. 328; 2 Gallis 315; to which the counsel have added 4 Taunt. 826: 8 Com. Bench R. 876. Judgment affirmed.