the date of the judgment, although prior by two years to the issuing of the writ of elegit and inquisition thereon, the title of the tenant by elegit was not barred. (Doe v. Hilder, 2 Barn. & Adolph. R. 782.) If, however, the tenant does not himself claim this protection, but suffers judgment by default, it will not avail the judgment debtor, though he may appear as landlord and defend the action. (Doe v. Creed, 2 Moore & Payne's R. 648.)

Estates by elegit, as well as by statute merchant and statute staple, are not known in practice in the United States. In this country, lands are generally liable for the payment of debts, but they are reached by a different process. Here, the fieri facias, by whatever name: it may be called, is the uniform process upon which lands are sold to satisfy a judgment. The execution is issued to the sheriff of the county in which the land to be reached lies, and in which the judgment was dockcted, requiring him to make the amount of the judgment out of the personal property of the defendant, and if sufficient personal property cannot be found, then to make it out of the real estate belonging to the defendant at the time such judgment was docketed in said county; whereupon such real estate is advertised and sold by the sheriff, at public auction, to the highest bidder, and, if the land is not redeemed within a specified time, the purchaser receives the sheriff's deed for the land, and he becomes vested with all the title that the defendant had in the land at the time the judgment was docketed against him. In these cases the statutes usually provide a summary proceeding for the purpose of recovering the possession of the land sold, after the title has been perfected under the sale; but in every case, if the defendant in the execution had such a title as would justify an ejectment, and his estate was of that nature that it could be sold on execution, the purchaser may maintain ejectment to recover possession.

In cases of a purchase at sheriff's sale, in order to recover in ejectment, it must appear that there was a seisin upon which the judgment attached. Where the defendant in the execution is the possessor, it is, of itself, sufficient evidence of a legal title. He cannot show title in another, for the plaintiff comes into exactly such estate as the debtor had; and if it was a tenancy, the plaintiff will be a tenant also, and estopped in a suit by the landlord, from disputing his right, in the same manner as the original tenant. If the defendant in the execution was not in possession of the land at

the time the lien of the judgment attached, the plaintiff must show, as against the party in possession, that the party against whom the judgment was rendered had some right, title or interest in the premises sold, and of such a nature as would be the subject of the judgment lien. (Jackson v. Tower, 4 Cow. R. 599. Vide Jackson v. Jones, 9 ib. 182.) But what will be proper evidence for the plaintiff, in such a case, will be given in another place.

IX. Where the testator, or intestate, dies possessed of real property for a term of years, his personal representatives may bring ejectment to recover the land; and in such a case it is immaterial whether the ouster be after or before the death of the testator, or intestate. (Doe v. Porter, 3 Term R. 13. Slade's Case, 4 Coke's R. 72, 75, a.) But the right of the personal representatives of the deceased to bring ejectment is generally confined to those lands which the testator, or intestate, held for a term of years. There was, however, formerly a statute in England, which may be in force at the present time, which appropriated certain estates held pur autre vie, where there was no special occupant, and authorized the personal representatives of the deceased tenant to recover such lands in ejectment. (Zouch v. Forse, 7 East's R. 106.) And there may be statutes existing in some of the American states, which authorize the personal representatives of the deceased to recover in ejectment real property held by the testator, or intestate, other than for a term of years, or during the life of another; but usually these latter estates are the only ones which can be recovered by the personal representatives of the deceased. It is most unquestionable that an executor or administrator, as such, may maintain ejectment for lands held by the testator or intestate for a term of years. (Duchane v. Goodtitle, 1 Blackf. R. 117.)

X. Where a freehold interest in lands is devised, the devisee may immediately, and without any possession, maintain ejectment for the lands devised; but if it be a legacy of a term of years, he must first obtain the assent of the executors to the bequest. (Young v. Holmes, 1 Strange's R. 70.) Where, however, such assent is obtained, the legal estate vests absolutely in the legatee, and he may maintain ejectment against the executor, as well as against a stranger. (Doe v. Guy, 3 East's R. 120.)

Where lands are devised to an executor, the executor holds the property as devisee. In such case he derives his title from the will, and his letters testamentary do not give him the title. He may

bring ejectment to recover the lands devised to him, as devisee, entirely independent of his appointment as executor. (Doe v. McFarland, 9 Cranch's R. 151.)

In the statement that the devisee may have his action for the lands devised, it is assumed that no action of the court is necessary in ordering a division, or assigning the land, and that the executor has no lien on the land for any purpose whatever, or if he had, so long a time had elapsed that his lien will be presumed satisfied. (Abbott v. Pratt, 16 Vt. R. 626. Vide also Green v. Chelsea, 23 Pick. R. 71.)

XI. The grantee of a rent-charge has power to enter upon the lands, if the rent be in arrear, and hold them until satisfaction. His title is, therefore, sufficient to maintain the action of ejectment. (Jemott v. Cowley, 1 Saund. R. 112. Galbraith v. Fenton, 2 Serg. & Rawle's R. 359. But vide Ganse v. Wiley, 4 ib. 509.) But, before the grantee of a rent-charge can enter for the non-payment of rent, he must make the proper demand of the amount due; and until this is done he cannot bring ejectment. (McCormick v. Connell, 6 Serg. & Rawle's R. 507.) And it is held, that these rights of entry are to be taken strictly; accordingly, when a man gave a leasehold estate by will to B, his executors, etc., subject to a rentcharge to his wife during widowhood, with a power to the widow to enter for non-payment of rent, and to enjoy, etc., until the arrears were satisfied, and, in case of the widow's marriage, he willed that B should pay the rent-charge to C, his executors, administrators and assigns, -it was held, that C's executors, after the widow's marriage, and C's subsequent death, had no right of entry for non-payment of the rent-charge. (Hassell v. Gowthwaite, Willes' R. 500.)

The assignee of a lease, absolute in its terms, taking, with the assignment of the lease, a writing from the assignor, agreeing to surrender the premises on a certain day, in consideration of which he agreed to pay a specified sum of money, may maintain eject ment against the assignor for the premises, on his refusal to surrender according to contract, without having made the stipulated payment. (Strong v. Garfield, 10 Vt. R. 497.)

When lands are conveyed with certain conditions imposed, and the grantor reserves the right to re-enter for condition broken, on the failure of the grantee, his heirs or assigns, to comply with these conditions, the original or immediate grantor, or his heirs, may

maintain ejectment to regain possession. By the common law, no one could take advantage of a condition or covenant but the grantor, or his heirs; a principle consistent with the old feudal maxims, but highly injurious to the rights of grantees, when the practice of alienating estates became general, and leases for years a valuable possession. Conditions in a deed can only be reserved for the grantor and his heirs. A stranger cannot take advantage of the breach of them. And the reason for this well-settled rule of the common law is, that the estate is not defeated, although the condition be broken, until entry by the grantor or his heirs, and "nothing which lies in action, entry or re-entry can be granted over, in order to discourage maintenances." Before the breach, there is nothing in the grantor to assign; and the right of entry, after breach, is, at common law, incapable of assignment. When, therefore, a grant in fee has been made, depending upon a condition subsequent, no one can re-enter on breach of the condition, except the grantor or his assigns. A conveyance made by the grantor to a third person, either before or after breach of the condition, will not carry with it a right to re-enter for condition broken. Hence, therefore, no one but the immediate grantor, or his heirs, can maintain ejectment to regain possession upon a right of re-entry for condition broken. (Nicoll v. The New York and Erie Railroad Company, 12 N. Y. R. 121.) On a covenant for the grantor to enter on condition broken, his heir, after the death of his ancestor, may avail himself of the covenant, although not expressly named, and can therefore bring ejectment for the premises forfeited. (Jackson v. Topping, 1 Wend. R. 388.)

To remedy what was regarded as an evil of the common-law doctrine, that no one could take advantage of a condition or covenant in a conveyance but the immediate grantee or his heirs, an act was passed in England, in the reign of Henry the Eighth, enacting, that the grantees or assignees of a reversion shall have the same rights and advantages, with respect to the forfeitures of estates, as the heirs of individuals, and the successors of corporations, had until that time solely enjoyed; and this statute, or one similar in its provisions, is still believed to be in force in that kingdom. Many of the American states, also, have statutes extending or modifying the common-law rule in this regard. Under a statute like that of Henry the Eighth, of course, the assignee of the reversioner may maintain ejectment upon a right of re-entry for

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condition broken; and, under the English statute, it has been held, that the assignee may take advantage of conditions for keeping houses in repair, for making of fences, scouring of ditches, preserving of woods, and the like; but not of collateral conditions, as for the payment of a sum in gross, or for the delivery of corn, or wood, or such like. (Spencer's Case, 5 Coke's R. 16.)

As there are, doubtless, statutes existing in some of the states, similar to those of Henry VIII, it may be well to note a few points which have been settled by the courts, in cases arising under that statute.

Where a lessee covenants for himself, his executors and administrators, that he would build a wall upon part of the demised premises, the court held that the assignee was not bound by this covenant, for the reason that the wall was not in esse at the time of the demise made, but to be newly built afterward. It was resolved, however, that if the lessee had covenanted for himself and his assigns, expressly, his covenant would have bound the assignee, notwithstanding the wall was not in esse, inasmuch as what was covenanted to be done, was to be done on the land demised. (Spencer's Case, supra. And vide Bally v. Wells, 3 Wils. R. 25.) But it has been expressly held that if the matter covenanted to be done does not, in any manner, touch or concern the thing demised; for example, to build a wall or other line, or pay a collateral sum to the lessor, the assignee, though named, will not be bound. (Vernon v. Smith, 5 Barn. & Ald. R. 1.)

It has been held that a covenant in a lease of land, that the lessee or his assigns will not hire persons to work on the demised premises who are settled in other parishes, is a collateral covenant, and does not bind the assignee, although expressly named; for it does not, in any way, affect the thing demised, although it may collaterally affect the lessee by increasing the poor rates upon him. In respect to this case, Lord Ellenborough, Ch. J., said: "This is a covenant in which the assignee is specifically named; and though it were for a thing not in esse at the time, yet, being specifically named, it would bind him, if it affected the nature, quality, or value of the thing demised, independently of collateral circumstances,; or if it affected the mode of enjoying it. But this covenant does not affect the thing demised, in the one way or the other. It may, indeed, collaterally affect the lessors, as to other lands they may have in possession in the same parish, by increas