dissent">Boyce, J.

(dissenting). I cannot give my consent to the majority opinion.

At this late day, in view of the unsavory history of estates tail, I am unable to see that they merit the application of ancient, technical rules of feudal law to preserve them against purchasers at execution sales, contrary to the result that follows a liberal construction of our own statutes. Besides it is well known that estates tail result almost wholly from accident rather than from the intention of the donor.

By Section 27, Chapter 83, Revised Code (1893) 631, estates tail are not favored. Indeed restraints upon alienation of lands in this state, as in all the states, are contrary to public policy. By Section 1, Chapter 111, ibid, 828, lands of a tenant in tail are chargeable with his debts; ' and by Section 27 of the last mentioned chapter, “the grantee in any deed, executed under the foregoing section shall hold the premises therein conveyed, with all their appurtenances, as fully and amply, and for such estate and estates, and under such rents and services, as he or they, for whose debt, or duty, the same shall be sold, might, or could, do, at or before the taking thereof in execution.”

Under the last-mentioned provision, the grantee in a sheriff’s deed shall hold the premises sold not only for such estate and estates as the debtor held therein, at or before the taking thereof in execution, but for such estate and estates, and as fully and amply, as the debtor could or might hold, at or before the taking in execution.

In considering the legal effect of this provision, the fact that it was passed before the act for barring estates tail is not controlling; for long before the enactment of either of these statutes, the right of a common recovery existed and continues to exist for barring estates tail.

The question here was argued by counsel and considered by this court in the case of In re Reeves, — Del. Ch. —, 94 Atl. 511, decided at the June Term last. In that case, it was contended that a sheriff’s deed conveys to the grantee not only the estate which the debtor had at the time of sale, but the estate as well which he could, or might, have, at or before the taking thereof in execution.

*99The reason urged was that it is the policy of our law to prevent the defrauding of creditors, and that the purpose of the statute was not to permit the holder of an estate tail to exercise his right to bar it, if for his benefit, but to withhold that right when to exercise it would benefit a creditor who advanced him money relying upon bis good faith and honesty.

Against this, it was contended for the remainderman that the sheriff could only sell the life estate of the tenant in tail, and that such a sale did not bar the remainderman.

The general'policy of our law with respect to taking real estate in execution for debt was declared by this court, in the case of Flanagin v. Daws, 2 Houst. 492, wherein Chief Justice Gilpin said:

“That it was manifest from our statute for taking real estate in execution that it was intended to include and Subject to execution and sale, every description of estate or interest legal or equitable, which a person might have in lands or houses, except where the same was subject to an active trust.”

Holmes (now Mr. Justice) in his notes to Kent's Commen taries, under the title of estates tail, says:

“A fee simple passes on a judicial sale to satisfy a charge, * * * and the same consequences must follow in all of them when the land is chargeable with debt.”

Long ago, after the Taltamm case, estates tail were liable for debts of record and specialties- due the Crown, and afterwards in cases of bankruptcy.

Lands of a tenant in tail may, in this state, be sold for a “duty”, that is for a tax, impost, or the like. A sale therefor extinguishes the entail. Under our statute the consequences are the same whether the execution sale is made for the ‘ ‘ debt or duty ’ ’ of the tenant in tail.

This court held in the Reeves case, upon deliberate determination, it may be assumed, that a sale of real estate in execution of a judgment recovered against an insane tenant in tail by the State Board of Trustees of the Delaware State Hospital at Famhurst, for his board and maintenance, care and custody, bars the entail. It was determined that a reasonable construction of the *100words “as fully and amply, and for such estate and estates * * * as he, or they, for whose debt, or duty, the same shall be sold, might or could do,” meant that the grantee in the sheriff’s deed shall take as fulta title to the lands sold, as if the tenant in tail had a fee simple estate in the same, at or before the taking thereof in execution.

When lands of a tenant in tail, living and in possession thereof, are taken in execution, the sheriff sells all the estate therein of the tenant in tail which is an estate of inheritance, and not a mere life estate; and it may reasonably be inferred from the scope and intendment of our statutes, that the legal effect of such sale, followed by the deed of the sheriff, is sufficient to pass a fee simple estate in the lands so sold. The legal effect is the same as a quitclaim deed of the tenant in tail, which being duly acknowledged or proved according to law, is sufficient to bar the entail. A sheriff’s deed has the legal effect of a quitclaim deed of the execution debtor. Indeed, in view of the statutes, it seems reasonable to hold that lands, whether held in fee tail, or in fee simple, are precisely on the same footing, in the lifetime of the tenant in tail, as being chargeable with debts; and if lands of a tenant in tail are taken in execution for his debts and are sold therefor in his lifetime, the grantee in the sheriff’s deed takes a fee simple estate therein.

The conclusion thus reached is not only in harmony with prior decisions of our courts, but is consistent with public policy and principles of justice. Besides to hold otherwise, at this time, results most likely in unsettling titles to real estate heretofore acquired.

I am of the opinion that when lands of a tenant in tail, in possession, are taken in execution for his debts and sold in his lifetime by the sheriff, the deed of the latter conveying to the grantee therein an estate in fee simple, extinguishes the estate tail and legally bars the remainders. I am, therefore, for the affirmance of the judgment below.

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