dissenting.
In this case I have the misfortune to differ with my associates. I have the satisfaction, however, of knowing that this difference of opinion can affect only cases growing out of transactions prior to the adoption of the Code. By Section 2242 it is provided that “ no forfeiture shall result from a tenant-for-life selling the entire estate in lands; the purchaser acquires only his interest.” I think this is but a legislative declaration of what was already the law.
The position maintained by the majority, as I understand it, is that the attempted sale by Mrs. Broach of the fee forfeited the life-estate to the remaindermen, and that the possession of Hamilton Broach, from the date of his purchase in 1852, was adverse to the title of the other remaindermen; in other words, that the sale not only forfeited the life-estate, but the remaindermen were bound to assert their rights accruing by reason of the forfeiture, or endanger their title in remainder.
1. It is true that at common law a life-tenant might, by feoffment, fine, or common recovery, forfeit his estate to him in remainder; because such alienation amounted to a renunciation of the feudal connection and dependence, and tended to devest the remainder expectant. Another reason given was that the life-tenant, by granting a larger estate than his own, put an end to his own original interest, and the next taker was entitled to enter regularly, as in his remainder or reversion. 2 Bl. Com., 274-5.
2. But in a note it is said that a conveyance by lease and re-lease, or bargain and sale, does not work a forfeiture. Ib., Note (16). This note, as I think, is sustained by the common law authorities. Feoffments, fines, and common recoveri es, operated “ by way of transmutation of possession;” while a bargain and sale is a contract by which a person conveys his lands to another for a pecuniary consideration; in consequence of which an use arises to the bargainee, and the statute (of uses) immediately transfers the legal estate and possession to the bargainee, without any entry or other act on his part. 2 *207Thomas’ Co. Litt., top p. 578 (Note B); citing 2 Ju. 671. A bargain and sale is a conveyance operating under the statute of uses, and never was liable to many of the incidents of feoffments, fines, and common recoveries. A bargain and sale does not, like a feoffment with livery, at common law, ransaelt the whole estate and extinguish every right and power connected with it. 4 Kent. Com., 84. “A mere grant or release by the tenant-for-life passed at common law only what he might lawfully grant.” Ib., 83. “ And so note two diversities : first, between a grant by fine, (which is of record,) and a grant by deed in pais ; and yet in this they both agree that the remainder or reversion in neither case is devested; secondly, between a matter of record, as a fine, &c., and a deed recorded, as a deed enrolled, for that worlceth no forfeiture.” 2 Thomas Co. Litt., top p. 207. “So it is no forfeiture if tenant-for-life conveys by bargain and sale, or by lease and re-lease to another in fee.” 2 Leonard’s Rep., 60 (1598). (“ Leonard’s Reports,” says Sir Edward Sugden, Treat, on Powers, 6 Ed., 16, “were always in high estimation;” and this opinion is confirmed by Lord Nottingham. “ The Reporters,” 99.) 2 Thomas Co. Litt., top p. 115, Note (L. 3); 4 Com. Dig., 395 ; “ Forfeitures,” (A. 3); 3 Mod. Rep., 151. “ At common law, where a tenant-for-life undertook to convey by feoffment a larger estate than he himself owned, such interference with another’s title, operating to devest the remainder or reversion, was punished by forfeiture of the estate-for-life to the remainderman or reversioner. This principle, founded on the feudal system, according to which such a conveyance was a renunciation of the connection between the lord and his vassal, is for the most part obsolete in American law. It is said by one distinguished commentator that scarcely a direct decision upon the subject is to be found in our American books; and another is of opinion that as the form and nature of American conveyances is that of a grant, which passes nothing more than the grantor is entitled to, the doctrine of forfeiture is not in force, even independently of statutory provisions, in the United States.” 1 Hill Real Prop., 103-4 (quoting 5 Dana, 5, 11; 4 Kent, 106); ib., *208528; 4 Com. Dig:, 395, Note (g); 3 Bac. Abr., 465-6. “Estate for life, and occupancy.” 1 Greenl. Cruise Dig., top p. 113, Note (1), (Tit. 3, Ch. 1, Sec. 36); ib., 777 (Tit. 16, Ch. 6, Sec. 8); 2 Vol. Greer. Cr. Dig., 157; (4 Vol., 112, Tit. 32, Ch. 10, Sec. 32-3 ;) 2 Bac. Ab., 4, “ Bargain and sale.” To my mind, these authorities establish the position that at common law a bargain and sale of the fee by tenant-for-life did not forfeit the life-estate; but the bargainee took such interest as the life-tenant had the right to sell.
I am aware that some cases seem to decide that a bargain and sale with a general warranty of title may produce a discontinuance, and perhaps a forfeiture. Stevens vs. Winship, 1 Pick. Rep., 327; McKee vs. Plant, 3 Dall., 486; 3 Thomas’s Co. Litt., 93, Note (A); ib., 125. Without admitting the truth of this position, a sufficient reply is, that the deed from Mrs. Broach to Hamilton Broach does not contain a general warranty. It warrants the title “ so far as her office of executrix will authorize her, against all claims whatsoever, and not to be liable only in her representative character as executrix.” In the case of Aven vs. Beckam, 11 Ga. Rep., 1, where the doctrine of the liability of an administrator was carried so far that the Legislature in a year or two after-wards changed the rule there laid down, the Court says (p. 8): “ If the administrator, in explicit terms, stipulates that he shall not be bound, the other party would be also bound by the stipulation; and the warranty, binding neither the estate nor the administrator, would be a mere nullity.” Here is an express stipulation against personal, individual liability. Ho stress was laid upon this point in the argument — it was not insisted that the question of warranty had anything to do with the case. The whole of the brief of Colonel Poe, for defendant in error, on this point, was this: “The plaintiff is barred by the stdute of limitations. The deed of Rachel Broach was made in 1852 to A. H. Broach, and he and defendant have had open and notorious possession ever since. The deed constitutes color of title, even though the vendor had only a life estate, and her authority to sell was only by virtue of the devise of a life estate. For as her deed con*209veyed a fee simple title, this act constituted a forfeiture of the life estate, and the remaindermen were entitled to enter eo instanfi ; and the statute commenced running at the date of the deed; to wit, in 1852. 2 Bl. Com., 274, 275; Co. Litt., 251; Litt., Sec. 415.”
3. Suppose I am wrong in this, and that a bargain and sale of the fee did at common law forfeit the life-estate, still I insist, that such was not the law in Georgia. By our adopting act, (Cobb’s N. D., 721,) we adopted such of the common law of England and such of the statute laws as were usually in force in the province on the 14th day of May, 1776, and were properly adapted to the circumstances of the inhabitants. The reason of the. old law of forfeiture for alienation never existed in this country, the law was not adapted to the circumstances of our people. Feoffment with living at common law, and fine and common recovery, so far as I know, were never used in this State as modes of conveyance. The modes of conveyance, most in use, and of which our statutes speak, are ‘bargain and sale and lease and release; and I am not aware that an alienation of the fee, by a life-tenant, by either of these modes of conveyance, has ever been held to be a forfeiture in Georgia, until the present time. I think the authorities already cited sufficient to show ■that the whole doctrine of forfeiture by alienation of a greater estate than the grantor possesses, is inapplicable to the condition of our people, and is not a part of our law.
4. Suppose, however, that I am wrong in this position also, and that a bargain ánd sale of the fee may work, in this State, a forfeiture of the life-estate; will the possession of the purchaser from the life-tenant be adverse to the title of the remainderman ? I think not. My position is, that if. there be a forfeiture of the life-estate, to the remainderman, by alienation, that he in remainder then has two titles, and may enforce either at'his option. He may at once proceed and recover on his title by forfeiture; or, he may waive that title, and on the death of the tenant-for-life, assert his title in remainder. The possession of the purchaser may be adverse, as against the title by forfeiture, without affecting in *210any way the title in remainder. The two titles are in the same person, it is true, but the rights may be affected and enforced in the same way as if they were in separate persons. The old maxim applies, “ Quando duo jwa eonourrunt in una persona, aequwrn est ao si essent in diversis.” (Where two rights concur in one person, it is the same as if they were in separate persons.) Branch’s Maxims, 120“ Where there exists two separate rights of entry, the loss of one by lapse of time will not impair the other.” Ang. on Lim., sec. 375. Hunt vs. Burn, 2 Sack., 421. In Goodright vs. Forrester, 8 East’s Rep., 551, it was decided that “The fine of a tenant-for-life devests the estate of the remainderman or reversioner, leaving him only a right of entry, to be exercised either then, by reason of forfeiture, or within five years after the natural determination of the preceding estate.” Lord Hardwicke says, “ That a remainderman, expectant on an estate-for-life or years, to Avhom a right to enter, or bring ejectment, is given by the forfeiture of the tenant-for-life or yeai’s, is not bound to do so; therefore, if he comes within his time, after the remainder attached, it will be good; nor can the statute of limitatioxis be insisted on against him for not coming within tw.enty years after his first title accrued by the forfeiture.” Kemp vs. Westbrook, 1 Vesey, sen. 278, (decided in 1749). “ If, however, there be in any State a forfeiture of the life-estate by the act of the tenant-for-life, the party entitled to enter by reason of the forfeiture, is not bound to enter, and may wait until the natural termination of the life-estate.” 4 Kent’s Com., 84; 2 Green]. Cruise’ Dig., 249, (3 vol. 449, tit. 33, ch. 2, sec. 36); 1 Hill on Real Prop., 555-6; Doe ex dem. Allen vs. Blakeway, 5 Car. & P., 563 ; (24 E. C. L. R., 709); 1 Wms. Saun. Rep., 319b; Ang. on Lim., 375. These authorities establish the position that the remainder-man may assert his title in i’emaindex’, and the possession of the purchaser from the life-tenant will not be adverse until the death of the life-tenant, although the life-estate may have been forfeited by the alienatioxx. Such possession is not hostile to, but is consistent with, the title in remainder.
If, as I have endeavox*ed to show, a bargain and sale of *211the fee, by a life-tenant, did not, at common law, work a forfeiture of the life-estate; or, if such was the effect at common law, that this doctrine, not being adapted to our circumstances, never was incorporated into our laws; or, if, in case of a forfeiture to the remainderman, of the life-estate, by the life-tenant, the remainderman had two titles and could assert either at his option, and within the time allowed by the statute of limitations, from the accrual of his right of entry, by virtue of which ever title he may attempt to enforce, then the charge of the Court below was wrong, and the plaintiff should have a new trial.
The record shows that plaintiff’s counsel requested the Court to charge, that the sale by Mrs. Broach did not forfeit her life-estate; and defendant’s counsel requested him to charge that it did. Forfeiture or non-forfeiture was the issue; for, without a forfeiture, there could be no sort of ground for insisting that the possession of the purchaser from the life-tenant was hostile to the title of the remainderman.
The other question made by this record, viz: whether the title passed by virtue of the sale, made by order of the Ordinary, authorizing a private sale, was not considered by the Court; and therefore it would be improper for me to express an opinion upon this point. To my mind, this was the real question in this case, but a decision upon it was rendered unnecessary by the views entertained by the majority upon the question of the statute of limitations. For the reasons given, I dissent from the judgment rendered in this case.