Page:Federal Reporter, 1st Series, Volume 6.djvu/355

 GRISWOLD V. BKAGG. 343 �a verdict against the defendant for the seizin and possession of an undivided fourth part of a tract of land containing an auger factory and a mill privilege in the town of Ohester. The defendant thereupon filed' a bill praying for the relief provided for by the statute. �On May 5, 1845, Joseph G. Dudley conveyed the land in question, and other lands, by warranty deed, to Joshua L'Homtnedieu, and on March 28, 1846, the said Dudley, as guardian, appointed by a court of probate in the state of Massachusetts, of his minor children, Orestes Dudley and Cecelia M. Dudley, conveyed to said Joshua and Ezra L'Hom- medieu the interest of said minors in ail said lands by virtue of an order purporting to have been made by the cQurt of probate for the district of Saybrook, vyherein said lands were situate. Ezra L'Hommedieu conveyed to said Joshua his (the said Ezra's) interest in the land now in controversy, by quitclaim deed dated February 22, 1850. �Joseph G. Dudley and his children derived title to these lands from Harmon Dudley by his last will. The devise was in the following words : "AU my real estate not otherwise disposed of in this my last will and testament, of every kind and description, I give and devise to my nephew, Joseph Gyprian Dudley, the son of my brother Joseph Dudley, to have and to hold the same as an estate in tail to him., the said Joseph Gyprian Dudley, and to the heirs of his body begotten; it being my expectation and understanding that in the heirs of the said Joseph Gyprian the same will become and be an estate in fee-simple." �By this will an estate in fee tail was vested in Joseph G. Dudley and a fee-simple absolute in his issue. The tenant �thereof, and the amount reasonably due to the plaintifE from the defend- ant for the use and occupation of the premises ; and if such value of such improvements exceeds such amount due for use and occupation, final judgment shall not be rendered until the plaintiil has paid said balance to the defendant. But if the plaintifE shall elect to have the title con- flrmed in the defendant, and shall, upon the rendition of the verdict, flle notice of such election with the clerk of the court, the court shall ascer- tain what sum ought in equity to be paid to the plaintift by the defendant, or other parties in interest, and on payment thereof may conflrm the title to said land in the parties paying it." ��� �