OCTOBER term, 1847. Ejectment for a granary, wharf, c., on the Nanticoke river at Seaford, in defendant's possession.
The land in question was devised by Jacob Kinder to his daughter Catharine Horsey (then the wife of Josiah Horsey) in fee; on condition solely and specially that she should pay the debts and a legacy of $200 to a grand-daughter, Sally Ann Cannon or her heirs, with interest. The testator also devised other lands in the same way to his two other daughters, the wives, respectively, of Joseph Neall and Nathaniel Horsey. The personal estate was insufficient; and the administrator, c. t. a., of Jacob Kinder, by agreement in writing between him and Joseph Neall, Josiah Horsey and Nathaniel Horsey, sold all the lands devised, and applied the proceeds to the payment of debts; and divided the residue among the devisees. A portion of the land (the part devised to Mrs. Neall,) was purchased at this sale by Nathaniel Horsey, and a deed was duly executed and acknowledged to him for the same, by Joseph Neall and wife, and Josiah Horsey andwife (plaintiff's lessor.) This deed recited the devise; the insufficiency of the personal estate; the unwillingness of the *Page 518 devisees to accept the land devised charged with the debts; and theagreement authorizing the administrator to sell the land, withcovenants for conveyance.
The defence was, 1st. That the plaintiff was estopped by the recitals of this deed from setting up title to the land devised to her. 2d. That the devise to her was conditional and gave no title to the land until the condition was performed, viz: the legacy paid. (Co. Litt. p. 1, n. a.; 2 Bos. Pul. 295.) 3d. That the defendant, who came into possession under Josiah Horsey in his life time, and held over after his death, was a tenant of plaintiff, and entitled to notice to quit. (Dig. 365-8.)
Cullen, for plaintiff, cited Arch. Civ. Pl. 211; 17Johns. Rep. 167; 1 Wash. C. C. R. 354; 37 C. L.Rep. 287; 8 Mees. Wel. 208.)
Saulsbury and Layton, for defendant, cited 5 C. L.Rep. 219; Dig. 89; 1 Greenl. Ev. 26, § 23; 16Johns. Rep. 109; 3 Harr. Rep. 103;, 1 Ibid 110; 6Cruise 447; 1 Pow. Dev. 183; 2 Ibid 251;Platt Cov. 72.)
The Court ruled, 1st. That the recitals in the deed to N. Horsey did not estop the plaintiff to claim the land. It amounted to no more than the admission of an agreement of her husband authorizing the administrator to sell the land, and covenanting to convey accordingly. If the agreement had been signed by the plaintiff, it would amount to no more than a letter of attorney for the sale of lands; which a feme covert cannot make; and a covenant to convey that would not bind her. She could part with her title in no other way than by deed acknowledged, with private examination. (Dig. 89.)
2d. That the estate vested in Catharine Horsey by the will of her father immediately on his death, and the payment of debts and legacies was a condition subsequent.
3. That if the defendant was the tenant of the plaintiff by any contract or assent of her's amounting to a leasing or an occupation subject to rent, the plaintiff could not bring an action of ejectment without giving the tenant notice to quit; but any disclaimer of the relation, made prior to the demise, dispenses with the notice; and disclaimers subsequent to the demise may be considered in evidence to disprove the tenancy.
4. That a person coming in as a tenant under a tenant for life, does not, upon his death, become the tenant of the person in remainder; without his assent, express or implied.
Verdict for plaintiff.