By the Court,
Sutherland, J.This is a demurrer to the plaintiff’s count in a writ of right ; and the main question which it presents upon the merits is whether a writ of right can be sustained by a divisee upon the seisin of his testator. It seems to be- well settled by the English authorities that it cannot. In Coke Lit. 293, a., Commentary on § 514, it is said, if neither he, the demandant, nor any of his ancestors were seised of the land within the time of limitation, he cannot maintain a writ of right, for the seisin of him of whom the demandant himself purchased the land availeth not Mr. Ser*252geant Williams, in a very elaborate and learned note to Williams v. Gwyn, 2 Saund. 45, b. says: “ In order to maintain this action, (a writ of right,) the demandant must shew an actual seisin, either in himself or his ancestor, by taking the espjeeg or profitg 0f the land ; therefore it is held that a purchaser cannot maintain the action, unless upon his own seisin, and that the seisin of the person from whom the demandant purchased is not of any avail; for seisin in the ancestor necessarily'means seisin in a person from whom there is a descent and cites the section and commentary already referred to in Coke Lit. 293, a., and Dally v. King, 1 H. Bl. 1.
In Dally v. King, the demandant claimed as heir to a devisee in fee in remainder, who of course took by purchase, and who died before the determination of the particular estates for lives upon which his" remainder, was expectant, so that he was never seised of the land, and upon bis death the remainder descended upon the demandant as his heir, who brought a writ of right; it was held that he could not recover, because there was no seisin, either in'himself or his ancestor, the devisee, by taking the esplees. That case, it is true, does not decide that a devisee cannot recover on the seisin of his testator. The demandant was not the devisee, but was the heir at law of the remainderman, who died before the determination of the particular estates,' and of course without ever having been actually seised. There was no actual seisin . therefore, except the seisin of Maurice Barby, the testator, and of the devisee’s tenants for life under his will, by whose death the estate had devolved, under the will also, upo’n John Barby, from whom it descended to the demandant as his heir. The demandant claimed as heir of J ohn Barby, and it was indispensable that he should show seisin either in his ancestor or himself. The seisin of the testator of his ancestor could not avail ■ him, admitting that the devisee might recover on the seisin of his devisor, because the demandant was not such devisee. Claiming as heir, he must show seisin in himself or his ancestor. But the broad doctrine was advanced in that cáse, that a purchaser could not recover in a writ of right on the seisin of his grantor or devisor. In Comyn’s Digest, tit. Droit, C. 3, the preceding case of Dally v. King, is stated and the editor, Mr. Kyd, add s *253to it this note : “ Hence it follows, that if the devisee under the will, or his representatives, let the time limited for an ejectment escape, they can have no remedy.” Lord Redesdale, in Saunders v. Lord Annesley, 2 Sch. & Lef. 104, says: “ A writ of wright does not lie for a devisee.”
In the celebrated case of Cholmendeley v. Clinton and others, 2 Merivale, 255, 273,304 and 329, it was conceded by all the counsel, and they were the most eminent in Westminster Hall, that a devisee could not maintain a writ of right except upon his own seisin. Sir Samuel Romilly says; “ Mrs. Darner, the devisee, could unquestionably maintain no action but an action of ejectment.” Mr. Bell says: “ It is perfectly clear that a devisee cannot bring a writ of right. The only remedy Mrs. Damer could have, would be by ejectment, and if that is not'brought in 20 years, there is an end of it.” Mr. Preston, says: “ This is a case in which we must treat Mrs. Dammer as the only plaintiff, and it is an acknowledged principle of law, that a devisee cannot maintain a real action till actual seisin.” Mr. Leach, the opposite counsel, conceded such to be the law.
The precedents are all believed to be against the action in this form: none of them with the exception of Dally v. King, 1 H. Bl. 1, 10 Went. 213, in which the judgment was arrested, count upon the seisin of the testator of the demandant. 3 Chitty’s PI. 635.
I must confess I do not see any satisfactory reason or principle to sustain this discrimination between an heir and devisee in relation to this action. The seisin of the ancestor, it is true descends by mere operation of law upon the heir, and be- . comes his seisin. It is but a continuance of the same estate; but whether it descends by force of the common law, or is transmitted by force of the statute of wills, would seem to create no substantial difference in the relation subsisting between the original and the subsequent owner. The privity between a testator and a devisee is in many respects, in a legal point of view, as intimate and operative as that between an ancestor and an heir; and if an heir can avail himself, in order to sustain a writ of right of the seisin of his ancestor, 1 do not perceive why a devisee should not be allowed to count upon the seisin of his testator. But such appears to have been the long *254established, and as far as I have discovered, the unquestioned doctrine in England; and there is no evidence of its ever having been questioned here. We are therefore bound to consider it the law. The case of Green v. Liter and others, 8 Cranch, 246, has no bearing upon this question. ,
This doctrine can have no connection with the question so much discussed in Varick v. Bacon, 7 Cowen, 238,2 Wendell, 166, S. C. as the power of a testator to devise lands not in his possession, but held adversely at the time: for in the cases which have been cited, the validity of the devise was not questioned: on the contrary, it was conceded ; for it is said in all the cases, that the devisee might have recovered in ejectment, if he had not suffered the statute to run against him. This admits the validity of the devise, and that it conferred a good possessory title.
There is no question that a devisee, is, in law, a purchaser, as much so as is a grantee. Real estates are acquired only by descent or by purchase. 2 Black. Comm. 201 241. Coke Lit. 18, b. The demandant here claims as devisee, and not as heir, and alleges seisin in his testator only, and not in himself—the count is therefore bad; and the defendant must have judgment on the demurrer, with leave, however, to the demandant to amend, on the usual terms. 1 Cowen, 1.