The opinion of the Court was delivered by
Gibson, C. J.It is a postulate of the plaintiffs’ case that their father, John Elliott, took no more than an estate for life by the will of their grandfather, David Elliott, and that they took in remainder as purchasers; but he took clearly a fee-tail. The land was devised “ to be enjoyed by him during his life, and at his death to be enjoyed by his heirs, and so on in tail for ever.” What heirs 1 Not his children merely, but such as should be capable of inheriting from him as issue, and consequently as heirs of his body. The devisor probably knew not the exact nature of a fee-tail, and consequently meant not to use the words “ in tail” in their technical sense. If he meant to give them a technical effect, there is an end of the question; but he certainly intended that the estate should not go over to the general heirs till there should be a failure of the issue of the first devisee, else why attempt to make the estate inalienable in the hands of John’s heirs, as well as in John’s own ? In Robinson v. Robinson, (1 Burr. 52), an express estate for life in the first taker was enlarged to an estate tail by implication, to give effect to such a general intent at the expense of particular and inconsistent intentions. There are many other instances of the enlargement of an estate for life by implication. This testator evidently meant that those who should take at the *40death of John should inherit, else why did he designate them by the word heirs as not specially applicable to them in their father’s lifetime! It is always a word of limitation where there is no particular circumstance or thing in the will to show that the testator used it as a word of purchase; and there is nothing of the sort here. He meant to give John a restricted estate of inheritance, in other words a fee-tail; and the question is whether it was barred by John’s conveyance to the sheriff’s vendee, acknowledged and recorded in court pursuant to the statute.
Tenant in tail is seised of an estate of inheritance which cannot be devested by any conveyance under the Statute of Uses, or by a sheriff’s deed, which passes no more than he could legally convey himself. He may part with the enjoyment of the land during his life by a deed of bargain and sale, or the sheriff may sell it on an execution; still he continues to be seised of the inheritance; and it is he, not the purchaser, who transmits it to the issue claiming through him,per formam doni, at his death. Why then can he not do any act to bar it, after his immediate interest has been sold, which he could have done before it! A conveyance by sheriff’s deed, which, unlike a feoffment, passes no more than the debtor could legally pass, works no discontinuance of the estate; and the tenant in tail, still being seised of the inheritance, may bar the issue either by a common recovery, as was done in Sharp v. Petitt, (4 Yeates 45), or as effectually by a deed acknowledged in court. The policy of the country requires lands to be subjected to payment of debts, and it is our duty to lean, where we can, towards giving it effect. But no leaning is necessary in the case before us. John Elliott, though deprived of the enjoyment of the estate, was still tenantkin tail within the letter and meaning of the statute; and his conveyance pursuant to it had the force of a common recovery.
Judgment affirmed.