Carver v. Jackson

The practice of bringing the whole of the charge of the'court delivered to the jury in the court below for review before this, court, is unauthorised, and extremely inconvenient, both to the inferior and to the appellate court. With the charge of the court'to the'jury upon mere matters of fact, and'with its commentaries upon the weight of evidence, this court has nothing to do. Observations oi ■that nature are understood to be addressed to the jury, merely for their con sideration as the ultimate judges of the matters of fact; and are entitled to no -more weight or importance than the jury in the exercise bf their own judgment choose to give them. They neither are, nor are understood to be, binding on them, as the true and conclusive exposition of the evidence. If, in summing up the'evidence to the jury, the court should místate the law, that would justly furnish-a ground for an exception. But the exception should be strictly confined to that mistatement; and by being made known at the moment, would often enable the court to correct an erroneous expression, so as to explain or qualify it in -such manner as to make it wholly unexceptionable, or perfectly distinct. [SO] The plaintiff claimed title uuder a marriage settlement purporting to be,executed the 13th of January 1758, by an indenture of release between Mary Philipse, of the first part, Roger Morris, of the second part, and Joanna Philipse and Beverly Robinson, of the third part. Whereby, in consideration of a marriage intended to be solemnized between Roger Morris and Mary Philipse, &c. R. M. and M. P. granted, &c. to J. P. and B. R. “ in their actual possession now being, by virtue of a bargain and sale to them thereof made for one whole year, by indenture bearing date the day next hefore the date of these presents, and by force of the statute for transferring uses into possessions, and to their heirs, all those,” &c. upon certain trusts therein mentioned. This indenture, signed and sealed by the parlies, and attested by the subscribing witnesses to the sealing,and delivery thereof, with a certificate of William Livingston^ one of the witnesses, and the execution thereof before a judge of the supreme court of the state of New York, dated the 5lh of April 1787, and of the recording thereof in the secretary’s office of New York, was offered in evidence by the plaintiff, and objected to, on the ground that the certificate of the execution was not legal and competent evidence, and did not entitle the plaintiff to read the deed without proof of its execution. A witness was sworn, who proved the hand writing of William Livingston, and' of the other subscribing witness, both of whom were dead. The certificate of the judge of the supreme court of New York stated, that William Livingston had sworn-before-him, that he saw the parties to the deed, “ sign and seal the indenture, and deliver it as th > and each of their voluntary acts and deeds,” &c. By the Court. According to the laws of New York, there Was sufficient prima facie evidence of the due execution of the indenture ; not merely of the signing and sealing, but of the delivery, to justify the court in admitting the deed to be read to the jury; and that in the absence of all controlling evidence, the jury would have been bound to find that the deed was duly executed. [82] The plaintiff, in the ejectment, derived title under the deed of marriage settlement of the 15th of January 175S, executed by Mary Philips^, who afterwards intermarried with Roger Morris, and by Roger Morris and" certain trustees named in the same. The premises, before the execution of the deed of marriage settlement, were the property of Mary Philipse, in fee simple. The defendant claimed title to the same premises undef a sale made thereof, 'as the P'operty of Roger Morris and wife, by certain commissioners acting under the authority of an act of the legislature of New York, passed the 22d of October 1779, by which the premises were directed to be sold, as the property of Roger Morris and wife, as forfeited"; Roger Morris and wife having been declared to be convicted and attainted of adhering to the enemies of the United States. Not only is the recital of the lease in the deed of marriage settlement evidence between the original parties to the-same, of the existence of the lease; but between the parties to this case, the recital is conclusive evidence of the same, and superseded the necessity of introducing any other evidence to establish it. [83] The recital of the lease in the deed of release in the present case, was conclusive evidence upon all persons claiming under the parties in privity of estate, as those In this case claim. And, independently of authority, the court would have arrived at the same conclusion upon principle. [88] As to the law of estoppels. [83] Leases like other deeds and grants may be presumed from long possession, which cannot otherwise be explained; and undef such circumstances, a recital in an old deed, of the fact of such a lease having been executed, is certainly pre-' sumpttve proof or stronger in favour of such possession under title, than the naked "presumption arising from a mere unexplained possession. [84] The uses declared in a deed of marriage settlement were; to and for the use of “ Joanna Phiiipse and Beverly Robinson, (the relehsees), and their heirs, until the solemnization of the said intended marriage ; and from and. immediately after the solemnization of the said intended marriage, then to the use and behoof of the said Mary Phijipse and Roger Morris, and the Survivor of them, for and during the time of their natural lives, without impeachment of waste; and from and after the determination of that estate, then to the use and behoof of such child or children, as shall or may be procreated between them, and to his, her or their heirs and assigns for ever. But in case the said Roger Morris and Mary Phiiipse shall have no child or children begotten between them, or.that such child or children shall happen to die during the life time of the said Roger and Mary, and the said Mary should survive the said Roger, without issue, then to the use and behoof of her, the said Mary Phiiipse, and her heirs and assigns forever. And in case the said Roger should survive the said Mary Phiiipse, without any issue by her, or that such issue is then dead, without leaving issue, then after the decease of the said Roger Morris, to the only use and behoof of such person or persons, and in such manner and form as the said Mary Phiiipse shall, at any time during the said intended marriage, desire the same by her last will and testament, See. &c. The marriage took effect, children were born; all before the attainder of their parents in 1779. Mary Morris survived her husband, and died in 1825, leaving her children surviying her. This is a clear remainder in fee to the children of Roger Morris and wife; which ceased to be contingent on the birth of the first child, and opened to let in after born children. [90] It is perfectly consistent with this limitation, that the estate in fee might be defeasible, and determinable upon a subsequent contingency; and upon the happening of such contingency, might pass by way of shifting executory use to other persons in fee, thus making a fee upon a fee. [90] The general nile of law founded on public policy is, that limitations of this nature shall be construed to be vested when, and as soon as they may vest. The present limitation in its terms purports to be contingent -only until the birth of a child, and may then vest. The estate of the children was contingent only until their birth, and when the confiscation act of New York passed, they being all born, it was a vested remainder in them and their, heirs, and not liable to be defeated by any transfer or destruction of the life estate. [92] The act of the legislature of New York of May 1, 1786, gave to the purchasers of forfeited estates the like remedy in case of eviction, for obtaining compensation for the value of their improvements, as is directed in the act of the 12th of May 1784. The latter act declares, that the person or persons having obtained judgment against such purchasers, shall not have any writ of possession, nor obtain possession of such lands, &c. until he shall have paid to the purchaser of such lands, or person holding title under him, the value of all improvements made thereon, after the passing of the act. Held, that claims of compensation for improvements made under the authority of these acts of the legislature of New York, are inconsistent with the provisions of the treaty of peace with Great Britain, of 1783, and should be rejected. [101] That in all casesrn party is bound by natural justice to pay for improvements on land, made against his will, or without his consent, is a proposition which the court are not prepared to admit. [101]

THIS was a writ of error to the circuit court of the United States, for the southern district of New York. In the circuit court for the southern district of New York, an. action of ejectment was instituted by the defendant in error, for the recovery of a tract of land in the town of Carmel, in the county of Putnam, in the state of New York. The plaintiff cl aiméd. title on the demise'of John Jacob Astor and others, named in the case. The action was tried by a jury at October term 1829, in- the circuit court, in the city ofJNTew York, and. á verdict and judgment rendered for the plaintiff in the same ;■ a bill of exceptions was. tendered by the. defendant in the circuit, court, who prosecuted this writ of error.' After judgment was rendered for the plaintiff in the circuit court, he prayed the court„to order a writ of possession, to cause him to have possession of the premises; and thereupon James Carver suggested to. the court, that Roger Morris, and Mary Morris his wife, under whom the plaintiff in ejectment claimed, were for-fifteen years and upwards, next before the 22d of October 1779', in possession of a large tract of land in the then county of Dutchess,' in the state of New York, including the premises. That on the 22d of October 1779, the legislature of the state of New York, by “ an act for the forfeiture and sale of the estate of persons who have adhered to the enemies of the state, &c.” declared Roger Morris and his wife to be convicted and attainted of adhering to the enemy; and all their estate, real and personal, severally and respectively, in possession, reversion, or remainder, was forfeited and vested in the people of the state. That commissioners appointed under this act, on the 16th of November 1782, sold, disposed‘of, and conveyed.the land in question in this suit, to Timothy Carver, his heirs and assigns, for the consideration of seventy-one. pounds. That by an act of the .legislature of the 12th of May 1784, and an act of the 1st of May 17(30, it was among other things provided, that where judgment in a due course of law should be obtained for any lands sold by the commis- . sioners of forfeitures,-against any'person who derived title thereto under the people of the state, or the commissioners, the person who obtained judgment should not have a writ of possession, or obtain possession of the land, until he or she should have paid to the person in possession under said title, the yaliie of all improvements made thereon, to be estimated as provided in the acts. That he, the said Timothy Carver, purchased the property held by him in the full confidence that he obtained a perfect indefeasible title to the land in fee simple, entered forthwith into possession of the same, made great, valuable and permanent improvements on the land, which are now in value upwards of two thousand dollars, by which the lands are enhanced in value to that sum and upwards. That Timothy Carver afterwards conveyed the premises to James Carver, the defendant in ejectment, who also made other valuable improvements on the land, before the commencement of this suit, of the value of two thousand dollars and upwards. That this action has been commenced and prosecuted, and a recovery has been had on a ground of title, reciting the same ; that the act of the legislature of New York, passed the 22d of October 1779, for the forfeiture of estates, &c. did not take from the plaintiff in the suit the title to the premises, after the death of Roger Morris and wife, both of whom were deceased at the time of the institution of this suit. So that the plaintiffs were the owners of the land in fee, and entitled to recover the possession of the same. And the defendant insists that, under the provisions of the several acts of the legislature of New York, he ought to be paid the value .of the improvements made on the lands ; that no writ of~possession should issue until the same was paid; and he prays the court to stay the plaintiff from the writ, or from having possession of the lands, until the value shall be paid; and that commissioners may be appointed to ascertain the said value. .The plaintiff did not deny the facts alleged by the defendant, but he denied the right of the defendant to be paid for the improvements, and insisted on his right at law to a writ of possession, and to the possession of the land without paying the value of the improvements. The court held, that the matters suggested by the defendant, and admitted by the plaintiff, were not sufficient to bar or stay the plaintiff from having his writ of possession, or possession of the land without paying the whole or. any part of the value of th.e improvements estimated or valued in any way whatever; and that the plaintiff should have a writ of possession to causé him to have possession of the lands.. The bill of exceptions set forth the whole proceedings on the trial of the cause; and that an agreement had been entered into by the parties to it, that the plaintiff is not entitled to the recovery of the property unless it should satisfactorily appear in the suit, in addition to whatever else may be necessary to,authorise, a recovery therein, that the whole, title, both in law or equity, which may or can have been vested in the children and heirs of Roger Morris and Mary his wife, of, in or to the premises or lands in question in the suit, has been, as betweén the grantors and grantees, legally transferred to John Jacob Astor, one of the lessors of the plaintiff, his heirs and assigns ; nor .unless a proper deed of conveyance in fee simple, from John Jacob Astor and all persons claiming under him to the people of the state of New York, would be valid and effectual to release, transfer, and' extinguish all the right, title, and interest, which now is, or may have been vested in the children and heirs of Roger Morris and wife. The plaintiff in the ejectment gave in evidence a patent from William III. to Adolphe Philipse, dated 17th June 1692, fora large tract of land, including the premises, and proved the descent of the same to Frederick Philipse; and that Mary Philipse, who afterwards intermarried with vRoger Morris, was á devisee in tail with other children of Frederick Philipse, and by subsequent' proceedings in partition, and by a common recovery, Mary Philipse became seised in fee simple of one equal undivided part of the land granted by the patent; and that, afterwards, on the 7th of February 1754, a deed of partition, reciting the patent and the title of the' heirs, was executed between the children and devisees and heirs of Frederick Philipse, by which the portions severally belonging to them were set apart and divided to each in severalty, one portion being allotted to Mary Philipse; the land in controversy being included in the land surveyed and held under the patent and deed of partition. The part allotted to Mary Philipse in the partition, was No. 5. The plaintiff then offered to read in evidence a deed of marriage settlement, dated 13th of January 1758, intended to convey all the land in No. 5, between Mary Philipse, of the first part, Roger Morris of the second-part, Joanna Philipse and Beverly Robinson of the third part; on the back of which deed was indorsed a certificate in the following terms : “ Be it remembered that on the 1st day of April 1787, personally came and appeared before me, John Sloss Hobart, one of the justices of the supreme court of the state of New York, William Livingston, Esq.,governor of the state of New Jersey, one of the subscribing witnesses to the within written indenture, who being by me duly sworn, did testify and declare that he was present at or about the day of the date of the within indenture, and did see the within named Joanna Philipse, Beverly Robinson, Roger Morris, and Mary Philipse, sign and seal the samé indenture, and deliver it as their and each of their voluntary acts and deeds, for the uses and purposes therein mentioned, and I having carefully inspected the same, and finding no material erasures or interlineations therein, other than those noted to- have been made before the execution thereof, do allow the same to be recorded. John Sloss Hobart.” Upon the back of the deed was also indorsed a certificate of the recording thereof, in the following words: “ Recorded in the secretary’s office of the state of New York, in deed book commencing 25th November 1774, page 550. Examined by me this 11th of April 1787. Robert Harpur, D. Secretary.” To which said evidence, so offered, the counsel • for the defendant objected ; upon the ground that the certificate was not legal and competent evidence to be given to the jury, and did not entitle the. plaintiff to read, the deed in evidence, without proof of its execution ; and that the certificate was not sufficient, inasmuch as it did-not state that William Livingston testified or swore that he was a subscribing witness to the deed. The parts of the deed of 13th January 1758 material to the case, are-the following: This indenture, made the 13th day of January, in the thirty-first year of the reign of our sovereign lord, George II. by the grace of God, of Great Britain, France, and Ireland, king, defender of the faith, &c., and in the year of our Lord 1758, between Mary Philipse of the first part, major Roger Morris of the second part, and Joanna Philipse and Beverly Robinson of the third part, witnesseth, that in consideration of a marriage intended to be had and solemnized between the said Roger Morris and Mary Philipse, and the settlement hereafter made by the said Roger Morris on the said Mary Philipse, and for and in consideration of the sum of five shillings, current money of the province of New York, by the said Joanna Philipse and Beverly Robinson to her, the said Mary'Philipse, at or before the ensealing and delivery of these presents, well a'nd truly paid, the receipt whereof is hereby acknowledged; and for divers other good causes and considerations, her thereunto moving, she, the said Mary Philipse, hath granted, bargained, sold, released and confirmed, and by these presents doth grant, bargain, sell, release and confirm, unto the said Joanna Philipse and Beverly Robinson, (in their actual possession now being, by virtue of a bargain and sale to them thereof made, for one whole year, by indenture bearing date the day next before the day of the date of these presents, and by force of the statute for transferring of uses into possession), and to their heirs, all those several lots or parcels of land, &c.” describing the property, in which is includéd the land in controversy in this suit. “ To have and to hold all and singular the several lots of land, &c., and all and singular .other the lands, tenements, hereditaments, and real estate, whatsoever of her the said Mary Philipse, &c., unto the said Joanna Philipse and Bever.ly Robinson, and their heirs, to and for the several uses, intents, and purposes, hereinafter declared, expressed, limited and appointed, and to and for no other use, intent, and purpose whatsoever; that it to say, to and for the use and behoof of them the said Joanna Philipse and Beverly Robinson, and their heirs, until the solemnization of the intended marriage, and to the use and behoof of the said Mary Philipse and Roger Morris, and the survivor of them, for and during the‘term of their natural lives, without impeachment of waste, and from and after the determination of that estate, then to the use and behi'oof of such child or children as shall or may be pr-. -reated between- them, and to his, her, or their heirs and^assigns for ever; but in case the said Roger Morris ■and Mary Philipse shall have no child or children begotten between them, or that such child or children shall happen to die, during the life time of the said Roger and Mary, and the said Mary should survive the said Roger, without issue, then to the use and behoof of her, the said Mary Philipse, and her heirs and assigns for ever; and in case the said Roger Morris should survive the said Mary Philipse, without any issue by her, or that such issue is then dead without leaving issue, then, after the decease of the said Roger Morris, to the only use and behoof of such person or persons, and in such manner and form, as she, the said Mary Philipse, shall, at aby time during the said intended marriage, devise the same by her last will and testament; which last will and testament, for that purpose, it is hereby agreed by all the parties- to these presents, that it shall be lawful for her, at any time during the said marriage, to make, publish and declare, the said marriage, or any thing herein contained, to the contrary thereof in anywise notwithstanding; provided, nevertheless, and it is the true intent and meaning of the parties.to these presents, that it shall and may be lawful, to and for the said Roger Morris arid Mary Philipse, jointly, at any time or times during the said marriage, to sell and dispose of any part of the said several lots or parcels of land, or of any other hér lands, tenements, hereditaments and real estate whatsoever, to the value of three thousand pounds,, current money of the province of New York; and in case the said sum of three thousand pounds be not raised by such sale or sales, during their joint lives, and they have issue between them, that then it shall be'lawful for the survivor of them to raise the said sum, by the sale of any part of the said lands, or such deficiency thereof as shall not then have been already raised thereout, so as to make up the said full sum of three thousand pounds, any thing hereinbefore contained to the contrary thereof in any wise -notwithstanding. The court overruled the objection, and allowed the deed to be read in evidence, and the counsel for the defendant excepted to the same. Evidence was then given, by the testimony of Mr Hoffman, to prove the death of William Livingston and Sarah Williams, who were witnesses to the deed, and that the names of those persons were their proper hand writing. That Mary Philipse and Roger Morris intermarried, and had four children, all born before October 1779; also the death of some of the children; the intermarriage of others; that Joanna Philipse was the mother of Mary Morris and Susanna Robinson, wife of Beverly Robinson; that Beverly Robinson.died,between 1790 and 1795; that Roger Morris died in 1794, and his wife Mary Morris died in 1825. Evidence was also given to show that Roger Morris was in possession of the premises from 1771 to 1774. . The plaintiff then gave in evidence a conveyance by lease and release of the premises, inter alia, by the heirs and legal representatives of Roger Morris and wife to John Jacob Astor. The conveyance by the commissioners of forfeited estates •to Timothy' Carver, of the land, was then given in evidence by the plaintiffs, and by Timothy Carver and wife to the defendant. Mr Barclay proved that Roger Morris and his family left this country for England just before the evacuation of the city-of New York by the'British troops in 1782 or 1783, and that neither of them had since returned to the United States. The plaintiff here rested his case. And thereupon the counsel of the defendant objected and insisted, that (independent of any other questions that might arise upon the plaintiff’s case) unless the deed, commonly called a marriage settlement deed, which had been given in evidence, was accompanied or preceded by a lease, the plaintiff could not recover in this action: that without such lease, the deed could only operate as a deed of bargain and sale, and the statute of uses would only execute the first use to the bargainees, Joanna Philipse and Beverly Robinson, who took the legal estate in the land;, and that the children of the said Roger Morris and his wife took only trust or equitable interests, and not the legal estate in the lands; and that the plaintiff could not recover, because such lease had not been pro.duced, nor its absence accounted for, if one existed; and of this opinion was the court. The counsel for the plaintiff then offered to give evidence to the court, to prove the loss of the said lease, to lay the foundation, for secondary evidence of its contents, by showing that diligent search for such lease had been made in various places, without being able to find the same; to which 'evidence the counsel for the defendant objected, on the ground that such evidence did not go to prove the loss or destruction of the lease, but to show that none ever existed; and that before the plaintiff could give-such, or any other evidence of t.he loss of the lease, he must prove that a lease did once exist. The counsel for the plaintiff then offered to give evidence to show that diligent efforts bad been made in England and in the United States to find the lease, without success; w.hich. was objected toby the defendant, on the ground that such evidence did not go to prove the loss or destruction of the lease, but to show that none ever existed; and that before such evidence was given, it must be proved that a lease did once exist. The'court overruled this objection^ considering the recital in the release prima facie evidence for that purpose, and the plaintiff gave the evidence. To this decision, in overruling the objections and admitting the evidence; the counsel for the defendant excepted. Testimony was then offered and admitted to prove that it was the almost universal practice not to record the lease, when the conveyance was by way of lease and release. -This evidence was given by the testimony of persons who had examined the offices of record, and not by that of those who kept the records. The counsel for the defendant objected to this evidence, alleging that the facts asserted could only be proved by the persons who had the custody of the records; but this objection, was overruled, and the same was excepted to. Here the plaintiff.again rested the proofs as to the loss of the lease; and offered to give secondary evidence to the jury of its previous existence, and contents. The;counsel for the defendant objected, and insisted that the plaintiff had not sufficiently proved the loss of thff lease, and was not entitled to go into secondary evidence of its previous existence and c'ontent?. But the court overruled the objections; and was of opinion that the plaintiff had, .from the evidence, satisfied the court as. to the loss and non-production of the lease, and was entitled to give-secondary evidence of its contents; to which opinion and decision, the counsel for the defendant also excepted. The counsel for the plaintiff, for the ..purpose of proving to the jury the existence and contents of the lease, offered to read in evidence to the court and jury, the recital contained in the said release or marriage settlement deed, of a lease or bargain and sale for a year; to which evidence so offered ds aforesaid, the counsel for the defendant objected, on the ground that the said recital was not evidence for those purposes against the defendant. But the court overruled the objections, and permitted the recital to be read in evidence to the jury, to prove the existence' and contents of the lease; to which opinion and decision the counsel for the defendant also excepted. The plaintiff then offered, and gave in evidence, by the testimony of Mr Benson and Mr Troup, that William Livingston, who had witnessed the deed of release, was an eminent lawyer in the city of New York, where the deed was executed, and that it was the practice at that time to employ lawyers to draw deeds ; that it was usual to recite the lease in the deed of release ; that it was a frequent practice in New York to convey lands by lease and release, until within four years of the revolution-. Evidence was also offered and admitted by the books of record to show what was the usual form .and contents of a lease. To all this testimony the counsel for the defendant excepted. The printed journal of the house, of assembly of New York, for the year 1787, was then admitted in evidence, under an exception by the counsel for the defendant. It showed that on the 16th of February 1787 a petition had been presented by Joanna Morris on behalf of herself, her brothers and sisters, children of Roger Morris and Mary his wife, relative to the estate forfeited to the people of the state of New York by the attainder of their parents, and a report thereon to the legislature, and here the plaintiff rested his case. The defendant gave evidence to prove that Timothy Carver,-and himself under him, had been in possession of the premises since the close of the revolutionary war, claiming the same in fee. He also produced and read in evidence, conveyances by way of-lease and release executed by Roger Morris and wife in 1765,1771, 1773, and other deeds and leases for parts of the lot No. 5, in which no mention was made of the marriage settlement, and in which the property was described as held under the patent to Adolphe Philipse, .and which Roger Morris and wife covenant “ that they had good right and full power and lawful authority to release an'1 convey the same in fee.” The defendant also gave in evidence the exemplification'of a patent to Beverly Robinson, Roger Morris and Philip Philipse, dated the 27th of March-1701, in which is recite ’ the surrender of part of the great tract granted to Adolphe PhNpse on the 17th of June 1696, the descent of the. whole of the said tract to the children of Frederic Philipse; no mention being made in the recitals of the marriage settlement, and by which patent two tracts of land, as a compensation for part of the land held under the original patent, which was supposed to lie within the Connecticut line, was granted. It was proved, by the evidence of Mr Watts, that he had in his possession the marriage settlement deed which had been read in evidence, at and immediately before the time of its proof before judge Hobart in 1787; that the witness wrote the body of the certificate of proof indorsed on the back; that the whole., of the said certificate was written by the witness, except the name of judge Hobart, written at the bottom, which was written by the said judge; that he believes he wrote the certificate in the présenee of the judge, at the time the proof was made, which was at the house of said judge, in the city of New York ; governor Livingston was then staying at judge Hobart’s house on a visit. On being shown the said original certificate, the witness said that a blank was originally left in the body of the said certificate for the name of the judge or officer before whom the said proof was to be made, and from that circumstance he had no doubt.that the said certificate was written before he knew what officer would take the said proof, and not in the presence of the judge; that the witness received the said deed early in the said year 1787, in an enclosure from the said Roger Morris, who was then in London, England. The plaintiff then gave in evidence, the defendant’s excepting thereto* the act of the legislature of the state of New York, passed April 16th, 1S27, entitled “ an act to extinguish the claim of. John Jacob Astor and others, and to quiet the possession of certain lands in the counties of Putnafn and Dutchess;” the act passed April 19th, 1828, entitled “ an act to revive and amend an act entitled ‘ an act .to extinguish the claim of John Jacob Astor and others, and to quiet the possession of certain lands in the counties of Putnam and Dutchess.’ ” Evidence was also given, the defendant’s counsel excepting thereto, to show that this suit was'defended for the state of New York by the attorney general of the state. The counsel for the defendant then gave in evidence an exerhplification of the proceedings of the council of safety of New York, on the 16th of July. 1776, in which it was resolved- unanimously, that all persons abiding within the. state of.New York, and deriving protection from the laws of the same,.owe allegiance to the said laws, and are members of the state ; and that all persons passing through, visiting or making a temporary stay in the said state, being eolitibd to the protection of the laws during the time of such passage, visitation or temporary stay, owe, during the same time, allegiance thereto: that all persons, members of. or owing allegiance to this state as before describe^, who shall levy war against the said state within the samp; or be adherent to the king of Great Britain, or. others ,the enemies of said state, and being thereof convicted, shall suffer the pains and penalties of death. The counsel for the defendant also read in evidence- an act of the legislature of the state of New York, entitled “ an act for the forfeiture and sale of the estates of persons who have adhered to the enemies of this state, and for declaring the sovereignty of the people of this , state, in respect to all property within the same,” passed the 22d of October 1779; it being admitted by the counsel for both parties, that Roger Morris, Mary Morris, the wife of Roger Morris, and ■Beverly Robinson, mentioned in the first section.of the .act, are and were the same persons, by those names therein before mentioned ; Beverly Robinson being the person by that name who was one of the parties to the marriage settlement deed: Also an act, entitled ■ “ an act- for the speedy sale of the confiscated and forfeited estates within, this .state, and for other purposes therein mentioned,”'passed the 12th of May 1784: Also, “ an act further to amend an act entitled ‘ an act for the speedy sale of the confiscated and forfeited estates within this state, and for other purposes therein mentioned,’ ” passed the 1st of May 1786: Also, “ an act limiting the period of bringing claims and prosecutions against forfeite’d estates,” passed the 28 th of March 1797: •Also, “ an act for the limitation of criminal prosecutions, and of actions and suits at law,” passed the 26th of February 1788; ayd •“ an act for the limitation of'criminal prosecutions, and of actions at law,’’"passed the St.li of April 1801. The couns;,l for the plaintitfthen made and submitted to the court in writing, the following points upon which they relied : 1. Mary Phili'pse,- in" January 1758,. was seised in foe simple. . 2. By the -deed of settlement a contingent remainder was limited to the children of that- marriage, which vested as soon as they were horn, and no 'act of Morris or his wife, done after the execution of that deed; can impair the estate of the children. 3. The recital of the' lease' in the release, is an estoppel against the defendant, as to the fact so recited on the ground of privity of estate. 4. If the recital be not a technical estoppel, then it is an admission of a fact in solemn form, by the parties to that deed, and is evidence of the fact recited, from which the jury are bound to believe the fact, unless it be disproved. 5. The attainder and sale under it operated as a valid conveyance of all the estate of the attainted persons at the date of the attainder, an'd no more. The purchasers under this state acquired a title in these lands for the lives of Morris and his wife, and of the survivor of them, and in judgment of law must be considered as standing in the same relation to the children of that marriage, as the orignal •tenants for life, whose estates weri confiscated. 6. As the purchasers under the state were tenants for life, and the children of Morris and his wife, or their assignees, are seised, in remainder of the fee, it results from that relation that the pioss'ession of the purchasers could not be adverse to the title of the remaindermen. The persons entitled to the remainder have five years from the death of Mrs Morris to commeneo their suits for the land; and the sale by the remaindermen to Mr Astor, during the existence of the life estate, ' in accordance with the rules of the common law, and in violation of no statute. 7. The principles of natural law, as well as the treaties of the 3d of September 1783, and 19th of November 1794, between the United States and Great Britain, confirm and protect the estate so required by Mr Astor. And the counsel for the defendant submitted in writing to the court the following points on which they relied : 1. That the plaintiff cannot recover in this action, unless a lease preceded or accompanied the release which has been read in the case. 2. That the plaintiff, not having offered any evidence of the actual execution or contents of any particular paper,, as such lease, cannot recover on the ground that a lease was executed and is lost. .3. That the testimony of Egbert Benson,' Robert Troup, and the other.witnesses, as to the custom or practice of con-r' veying by lease and release; the-professional character of William Livingston, and his connexion with the Philipse family; although it might, under certain circumstances, be evidence to lay the foundation for a general presumption, according to the rules of law respecting presumptions of deeds and gra'nts, that a proper lease or other writing, necessary to support the conveyance, had been executed; is not competent to prove, either the. actual execution, existence in fact, or contents of the alleged lost lease. 4. That no legal presumption, of a deed or lease, such as is necessary 4o enable the plaintiff to support this action, can fairly arise in this case; because the facts and circumstances of the case are not. such as could, not, according to the ordinary course of affairs, occur without supposing such deed or lease to have existed; but are perfectly consistent’ with the non-existence of such lease. 5. That no possession having been proved in this case, more consistent with the" title of the plaintiff than with that of the defendant, any deed ‘ or lease, necessary to support the plaintiff’s action, must be proved, and cannot be presumed. 6. That the recitals in the deed of release do not bind the defendant by way of estoppel; because he is a stranger to the deed, and claims nothing Under it. 7. That inasmuch as the defendant is not only a stranger to the deed of release, and claims nothing under it, but as also it appears that, the defendant’s immediate grantor entered into possession of the premises as early as the year 17S3, under a claim of title adverse to that supposed to be created by the said deed or release, and he and the defendant, after and under him, have continued so in possession, under sUch adverse claim of title, to the present time; the recitals in said deed of release are not evidence against the defendant. 8. Supposing the lease and release to have been duly, executed, then the remainder, limited to the children of Roger Morris and Mary his wife, was a contingent, and not a vested remainder, at the time of the attainder and banishment of Roger Morris and Mary his wife, in 1779. 9. By the attainder and banishment of Roger Morris and Mary his wife in 1779, they became civilly dead, and their estáte in the lands determined, before the time when the contingent remainder to the children could vest; and thus the contingent remainder to the children was destroyed for the want of a particular estate to support it:' 10. By the attainder and banishment of Beverly Robinson, the surviving'trustee, in 1779, and the forfeiture of all his estate to the people of the state of New York, all seisin, possibility of entry, or scintilla juris in Beverly Robinson, to serve the contingent.use when they arose was divested; and inasmuch as the estate cannot be seised to uses, there was no seisin out of which the uses in remainder could be served, when the, contingency upon which they were to arise or vest happened; and' the state took the estate discharged of all the subsequent limitations in remainder. 11. In consequence of the attainder and banishment of Beverly Robinson, the surviving trustee, and Roger Morris and Mary his wife, in 1779, and the forfeiture of all their, and each of their estate in the land to the people of the state of New York, the children of Roger Morris and Mary his wife never had any legal seisin in the land. 12. In consequence of the act of attainder, and the conveyance made by the people of the state of New York to Timothy Carver with warranty, the estate of the children of Roger Morris and Mary his wife, in the lands in question in this suit, was defeated and destroyed. 13. Roger Morris and Mary his wife, under the marriage settlement deed, had an interest in the land, and might convey in fee to the amount of three thousand pounds in value. They did convey to the amount of onq thousand dne hundred and ninety-five pounds in value, and the residue of that interest was forfeited to, and vested in the people of New York; and the power was well executed by the conveyance of the commissioners of forfeitures to Timothy Carver, the defendant’s grantor. . 14. The whole tifie, both in law and 'equity, whiejh may or can be vested in the children and heirs of Roger Morris and Mary his wife, of, in and to the lands and premises in question, has not been, as between the grantors and grantee, legally transferred , to the said John Jacob Astor,-his heirs and assigns. 15. A proper'deed of conveyance in fee simple from the said John Jacob Astor, and all persons claiming under him, to the people of the state of New York, would not be valid and effectual to release, transfer, and extinguish all right, title and interest which now is, or may have been vested in the children and heirs of Roger Morris and Mary his wife. 16. The plaintiff’s action is barred undér the act limiting the period of bringing claims and prosecutions against forfeited estates. : 17. The plaintiff’s action is barred under the general limitation act of 1788, also under.the general limitation act of 1801. Upon which the court expressed the following opinion and instructions, to be given to the jury on the defendant’s points; under the modifications stated in the same. 1. The court gave the instruction as prayed. 2. It having been satisfactorily proved to the court, that the lease was lost, its execution and contents may be pVoved by secondary evidence. . 3. That the testimony of Egbert Benson, Robert Troup, and other witnesses, as to the custom and practice of conveying by lease, or release; the professional character of William Livingston, and his connexion with the Philipse family, coupled with the recital in the release ; were-admissible in this case t’o go to the jury, for them to ..determiné whether a proper-lease, necessary to support the conveyance of release so as- to pass the. legal estate, had been executed. • 4. That -the jury might in this case presume, if the evidence satisfied them of the fact, that such lease was duly executed, if in their opinion the possession was held by Roger Morris and his wife, under this marriage settlement deed, embracing both the lease and release. And that it was for them to decide from the evidence, whether the possession was held under the marriage settlement or under the title of Mary Philipse, anterior to the marriage settlement.. 5. The instruction on this point is embraced in the answer to the fourth. 6. That the recital in the release does not bind the de; fendaftt by way of estoppelbut is admissible evidence to the jury, connected with the other circumstances, for them to determine whether a proper lease was made and executed. 7. The instruction on this point is included-in the answer' to the sixth. S. The remainder limited to the children of Roger Morris and Mary his wife, was a vested remainder at the time of the attainder and banishment of Roger Morris and Mary his wife, in the year 1779, and did not thereafter require any particular estate to support it; but if a particular estate-was necessary, there was one sufficient in this case for that purpose. 9 and 10. The answer to these points is included in the answer to the eighth. 11. The attainder and banishment of Beverly Robinson, Roger Morris and Mary his wife, in the year 1779, and the forfeiture of all their estate in the land to the people of the state of New York, and the conveyance to Timothy Carver of the lands in question, did not take away the right which the children of Roger and Mary Morris had under the marriage settlement deed. 12. The answer to this point is included in the answer to the eleventh. 13. Admitting that the power reserved to Morris and his wife to sell a part of the lands included in the marriage settlement, deed became forfeited to the state, so far as it had not been executed, the sale to Timothy Carver could not, under the evidence in this case, be.considered an execution of that power. 14. The whole title, both in law and equity, which may or can have vested in the children and heirs of Roger Morris and Mary his wife, of, in or to the lands and premises in question, has been, as between the grantors and grantee, legally transferred to John Jacob Astor, his heirs ánd assigns, according to the true intent and meaning- of the acts of the legislature of the state of New York, which have been produced and read upon the trial. 15. A proper deed of conveyance, in fee simple, from John Jacob Astor, and all persons claiming under him, to the people of the state of New York, would be valid and effectual, to release, transfer and extinguish all right, title and interest which now is, or may have been vested in the children and heirs of said Roger Morris and Mary liis wife, according to the true intent and meaning of the acts of the legislature referred to in the next preceding instruction. 16 and 17. The plaintiff’s action is not barred by any statute of limitations in this state. The court then charged the jury. After stating the plaintiff’s title under the patent to Adolphe Philipse in 1697, and that it was not denied by. the defendant, but that Mary Philipse in 1754 became seised, iri severalty, in fee simple of the premises in question, the court proceeded to say: “At this point the dispute commences. On the part of the plaintiff, it is contended, that the marriage settlement deed which has been produced and submitted to you, bearing date in the year 1758, was duly executed and delivered on or about the time it bears date; the legal operation of which was to vest in Roger Morris and his wife Mary, a life estate, with a contingent remainder to their children, which became vested in them on their birth, and that their right and title has been duly vested in Mr Astoi, by the deed bearing date in the year 1809. On the part of the defendant, it is contended, that Mary Philipse never parted with her title in the premises by the marriage settlement deed, set up on the other side, or that if she did, it was revested in her or her husband, and. continued in them or one of them, until they were attainted in the year 177.9, by an act of the legislature of this state, and that the title to the land in question thereby became vested in the people of this state, from whom the defendant, derives title. Unless therefore the plaintiff can establish this marriage settlement deed, so as to vest a legal estate in the children of Roger Morris and Mary his wife, he cannot recover in this action “ It will be proper for you, in examining and weighing the facts and circumstances of this case, to bear in mind, that the' children of Morris and wife could not assert in a court of law their right in this land, until the death of Mrs Morris, in the year 1825, and since 1825 there has been no want of diligence in prosecuting and asserting the claim. “ In the year 1809, Mr Astor purchased and acquired .all the interest of the children of Morris and wife; and.you are to consider him as now standing in their plg.ce. “ The first question then is, was the marriage settlement duly executed % In the first place, the plaintiff has produced the ordinary and usual evidence of the execution of the deed, has shown that governor'Livingston was the subscribing witness,- and that in 1787 he went before judge Hobart and made the usual and ordinary proof of the execution of the deed; such as was sufficient to entitle the deed to be recorded : the hand writing of the witnesses who are dead has also been proved. Upon this proof the prima facie presumption of law is, that the deed was executed in all due form, to give it force and validity; and in. the absence of all other evidence, the jury would be justified, if not conclusively bound to say, that every thing was properly done, Including a.delivery. But whether delivered or not, is a question .of fact for the jury. “Delivery is absolutely essential; a deed signed, but not delivered, will not operate'to-convey land. .But no particular form was necessary; if the grantee comes into the pos- - session of the deed in any way 'which may be presumed to be with the assent of. the grantor, that is enough, and is a good delivery in law; and if found in the hands of the grantee years afterwards, á delivery may fairly be presumed, and it will operate from and relate back to the time of its date, in the absence of all proof to the contrary. If a deed be delivered to an agent, or thrown on a table, with the intent that the grantee should have it, that is sufficient, although no words are used. Such proof as has been given in this case, would be-sufficienlfora jury to presume a delivery, even in the case of a modern deed, and is much stronger in relation to one of ancient, date. In this case, what else could be proved ? Would it be reasonable to require any thing beyond what the plaintiff has proved ? The witnesses are dead ; their hand writing has been proved, and a proper foundation is thus laid for presuming that every thing was done to give effect and validity to the deed. “ Such, being the case, the' burden of proof is thrown bn the other side to rebut the presumption of a delivery, warranted .from these circumstances. Much stress has been laid upon the fact that the certificate of proof by governor Livingston not only states that the witness saw the parties sign and seal, but that he saw them deliver the deed. In stating a delivery, the certificate is a little out of the ordinary form; and it is not important, and adds little or nothing to.the evidence of a due and full execution of the deed, that the word deliver ■ was inserted. This insulated fact is not of much importance, for without that word, the legal effect of the proof would be the same; proof of the due execution for the purposes expressed in the deed, includes a delivery. “ What then is the evidence to bring the fact of delivery into doubt ? I separate now between the release and the lease; these are two distinct questions, and I shall consider the question relative io the lease hereafter. The argument of the defendant is, that the deed was not delivered, and did not go into effect. Then what is. the reasonable presumption to be drawn from the facts he has proved? keeping in mind that this is evidence, by the defendant to disprove the presumption of law from the facts proved, that the deed was duly delivered. It has been said on the part of the defendant, that the deed was probably kept for some time, and that the design to have a marriage settlement was finally abandoned. If you believe from the proof made by governor Livingston, that the deed went into the hands of the parties, then there was a good delivery, because a deed cannot be delivered to the party as an escrow. Then is there any evidence to call the delivery into question ? Where is the evidence to induce the belief that the deed was executed with any understanding that it was not to have immediate effect, or that it was delivered to. a third person as an escrow, or that the parties did not intend.it as an absolute delivery ? You have a right to say so, if. there is evidence to support it; but if there is nothing to induce such a belief, then you are to say that it was duly de:ivered. *“ It has been said that this was a dormant deed, never intended by the parties ¡to operate; that it had slept until after the attainder and until the year 1787. There is weight in this, or rather there would be weight in it, if the parties in interest had slépt on their rights. But who has slept? Morris and his wife, Beverly Robinson and Joanna Philipse, the trustees: they are the persons that have slept, and not the children. This does not justify so strong an inference against the children as if they had slept upon their right. Is. it fair in such a case to draw any inference against the children ? “ It has been said that there were three copies of this instrument; it is somewhat uncertain how many copies there were, or where they went. But suppose .there were three copies, where would they probably go ? Undoubtedly to the parties in interest. Mary Philipse would have one; and Roger Morris another, and the trustees the third. Mary Philipse, in a certain event, contemplated in the marriage settlement, would again become seised in fee. She therefore had an interest in having one copy; for although She had parted with the fee, she took back a life estate with the possibility of an ultimate fee in the land revesting in her. Roger Morris also had an interest under the deed, and it is therefore reasonable to presume that he had one copy of the deed. Thé third copy would have gone to the trustees, Beverly Robinson and Joanna Philipse. But where did this one come from ? All you have on this subject is, that Mr Watts received, it from Morris in 1787, to have it acknowledged. This one, for the purpose of passing the title, is as good as though all three were produced. “ It has also been urged that this deed was not recorded until 1787. Is there anything in that fact that should operate against the children ? They were minors for the greater part of the time down to the year 1787, when it was recorded. “ It has also been urged as a controlling fact, that Morris was here at the close of the war, and did not have the deed recorded before going to England. It appears from the testimony of colonel Barclay, that Morris and his family left New York for England before the evacuation of the city by the British army, which was on the 25th of November 1783. It is well known as a matter of history, 'that the British were in possession of the city of New York through all the war. Is there any thing then in the fact that it was not recorded, from which an inference can be drawn against the deed? Where were the officers before whom Morris could at this time have had the deed proved ? No law has been shown giving any such power, nor do I know of any. such law. Then is there any just ground for a charge of negligence, even against Morris himself? After 1783 there were officers here before whom the deed might have been acknowledged or proved. “ Is there any thing in omitting to have it recorded after that time? There was only three or four years delay; and are there not circumstances reasonably to account for that, and show why it was recorded in 1787 ? In February preceding the time of probf and recording, the children made an application to the legislature, asserting and setting forth their claim. They were told by the report of the committee, which was adopted by the house, if you have a right, as you say you have, go to the courts of law, where you will have redress. “ This was a very proper answer. The report did not, however, as has been urged, contain any admission of their title; nor did the committee give any opinion upon the validity of the claim; and if they had, we cannot regard it. But all they or the house said, was, that if what you allege be true, you have a remedy in the courts of law. This was calculated to awaken their attention and to induce them to prove and record their deed, as a precautionary measure. It has been said that this was no more than the ordinary transaction of proving a deed, and that in the case of an old deed, thé'witness finding his name to the deed, swears from that circumstance, rather than from any particular recollection, that he saw it executed. But in this case, was there not something special and particular preceding the proof of this deed; something calculated to awaken attention, and ought it to be considered no more than the ordinary transaction of proving an old deed. Governor Livingston, the witness who proved the deed, as has been proved to you, was a man of high .character, an eminent lawyer, and a distinguished whig. It is fair to presume, also, that he knew what had been done just before in the legislature. Is it not reasonable then to believe that his attention was particularly called to the transaction, and that he referred back to the time of the execution of the deed, and that he would not have proved it if he had not a recollection of what then took place? “ It is reasonable to presume, his attention being awakened, that he refreshed his recollection of the original transaction. It was proved at Judge Hobart’s house. Mr Watts drew the certificate. But can you presume that the'witness would swear, and the judge would certify, without having read it? It is reasonable to presume that Judge Hobart, as well as the wijtness, knew what had taken place in the legislature in .this city a short time before. This certificate is a. little out of the ordinary, form; it states the execution tó have been at or about the day of its date : they may have thought it necessary to show that the deed was not got up to .overreach the attainder. Is there any thing in the circumstances of this proof to induce the belief of unfairness ? “ It is also said thaCMorris and his wife have done acts inconsistent with the deed. In weighing the force and effect of these acts, you 'must bear in mind the time when the interest vested-in the children under-this deed ; for after that interest vested,-nóné but'themselves, could divest it. It is said there is doiibt as to the time when the marriage took place; but it was probably between 1758 and 1†61 ; for in the latter year Mary Morris executed a deed as the wife of Roger Morris. I am inclined to think the law is, that after the marriage, the parties to the deed coúfld not disannul the deed. But certainly not after the birth and during ihé life of the children of that marriage. “ We now come to the acts that are said to be inconsistent with the deed. Those acts are of three distinct kinds or classes. 1. Those for settling the exterior lines of the patent. 2. The deeds to Hill and Merritt. And 3. The leases for the lives of other persons. “ In estimating the weight of the first class, it will be proper for you to bear in mind the.situatiop of the patent to Adolphe Philipse. It was bounded north by the Kip (or.Van Cortland &.Co.) patent and the Beekman patent, and on the east by Connecticut. The first class, of instruments produced by the defendant relate to the Connecticut.line, the Beekman patent, and the Kip (or Van Cortland) patent. The first deed is that of January. 18th, 1758 : this relates to the boundary of the Beekman patent. You will see from this deed, and its recital, what the parties intended. It recite&an agreement in 1754, to settle the lines of the two patents. “You are not necessarily to take this as having been executed after the marriage settlement deed : delivery is what gives validity to a deed. Certainly Mary Philipse was not married at the time this deed was made; for if she had been, she would have sighed it as Mary Morris. If she was not married, and had not executed the marriage settlement deed, she was seised in fee of the land, and had the absolute control over it. “ Again, it does not appear how much of the Philipse patent was conveyed by this deed; and it was made in pursuance of an agreement in 1754, to settle the boundary. “ The next is the patent to Philipse, Robinson and Morris, growing out of the settlement of the Connecticut line. The government settled the line between New York and Con-, nectieut, making it a straight line, instead of one parallel to the Hudson river, according to the patent: and this patent was given to Morris and others for. the lands lying on the west side of that line. And the patent recites, that Morris and his wife had released to the king the land taken from the Philipse patent by the new line. This was an act to settle boundaries. Again, it is to be observed, that Robinson and Morris were both married; and yet the patent was not given to their wives, but to the husbands. “ The interest Morris had in the land, was a life estate under the settlement deed, the same as it would have been without it. Without that deéd, he had a life estate as tenant by the curtesy. “ Morris, instead of taking this patent to his wife or children, or in trust for them, took it to himself. He might, however, be considered as taking the land in trust for his children. But this alleged inconsistency of Morris is just as great without as with the settlement deed. “The next is the deed to Verplank, in relation to the,Kip or Rumbout patent. It does not appear that this deed conveyed any of the Philipse patent. But suppose it did, it does not necessarily follow that it was intended to assert any right in hostility to the marriage settlement deed. Is it not a fair and reasonable presumption, these children being infants, that the parents meant this as a settlement of difficulties about boundary, for the benefit of the children, and not that they intended to act in hostlity to the deed % It was the. act. of parents, and not of strangers. The intention with which all these acts were done, is important; as they are introduced to show that Morris and his wife have acted inconsistently with their right under the marriage settlement deed. “ We are next to consider the deeds to Hill and Merritt. Ar'e these hostile to the settlement deed “? If there had been no power to sell any part of the land, they would have been strongly inconsistent with the settlement deed.. But that deecj contains a power expressly giving them the right to sell in fee to the value of three thousand pounds. They ■have only sold.to the amount of one thousand one hundred and ninety-five pounds, and so are within the power. But it has been said that these,deeds do not recite the power— that was not necessary: the purchasers in these (Hill and Merritt) deeds would acquire as valid a title as if the power had been recited. These deeds are, therefore, not inconsistent with the settlement deed. “ The next thing to be considered is the three life leases. Were these such acts of hostility as to induce the belief that the settlement deed was not delivered ? It has been argued on the part of the plaintiff, that the word dispose, in the power, would authorise these leases as well as sales in fee. This I think is not, the true construction of the power: looking at the latter part of the power, it is evident that by the words sell and dispose ofthey only contemplated sales,, and not leasing for life or lives. And so, in strictness of law, they had no power to make these leases for lives. But if they had no such, power, still the question returns, how is that to affect the,rights of the children; and did they intend it in hostility to those rights f It could not affect their interest in the land. The question is not what was the legal effect of these acts, but how did Morris intend them1? Did he actually mean to act in hostility to the deed 1 That is the question. You are not to construe.it an act of hostility, unless it was. so intended, by Morris. It was a new country: clearing and improving the lands was for the benefit of the children; 'and if Morris so intended these leases, they are not hostilé to the deed. These are all the circumstances relied upon as. being inconsistent with the settlement deed; and they are questions for you. I do not wish to interfere with your duties. It is for you to say whether the deed was duly executed and delivered. “ The next question for your consideration, is whether there was a lease as well as a release. In- the judgment of the court, a lease was necessary to convey a legal estate to the children, and through them to Mr Astor. Without a lease, this deed would only have operated as a bargain and sale, and the statute (for reasons that I need not stop to explain) would not have executed the ulterior uses. So a lease is indispensable to the plaintiff’s title. Then the question is, are you satisfied that a lease was executed ? This, perhaps, is the stress of the case. On this subject, questions of law are intermingled with the facts. The plaintiff says that the recital in the release is conclusive evidence of the lease; such evidence as cannot be disputed. If so, then it would operate as a téchnical estoppel, and Carver’s mouth would be shut, and he would not be permitted, to dispute the existence of the lease, whether there was one in point of fact or not. But it is not enough to make it an estoppel, that the defendant claims under the same party : he must claim under or through the same deed, or through the same title. Here neither the defendant nor the state claim through this deed : they claim in hostility to. it; they say there never was such a deed ; they claim the interest that was in Mary Philipse in 1754. This recital is hot, therefore, to be considered a technical estoppej. “ The question then is,whether the recital can operate in any other way 1 The court has before decided in your hearing,- that this recital is evidence for the jury; and it is for you to say what weight' and importance it ought to have. The defendant has excepted to the decision of the court that this is evidence ; and if the court should have mistaken the •law, the defendant will have his redress. You are therefore, to take this recital as evidence legally and properly admitted ; and if legal evidence, it is evidence for some purpose. It would be absurd for the court, after deciding that it is legal evidence, to tell you not to consider it, or that it is entitled to no weight ór importance. You must therefore regard this recital as evidence.' “ The recital being evidence, the question is for you to decide what is its weight and importance 1 In recent transactions, where the party can have other evidence of the fact, recitals-are of little weight. But in ancient transactions, they aré of-more'weight and consequence. There may be no witness to pro.v'é the fact. And the forcé and importance óf a. recital-may be. greater or smaller, according to the facts arid circumstances of'each particular case.' Here the léase is lost, and it cannot therefore be shown who were the witnesses to it, .nor with certainty what it contained. The witnesses to the release are dead, and the plaintiff could not therefore be called upon to produce them. In the proof of ancient transactions, the rules of evidence must be' relaxed in some measure, to meet the necessity of cases. Where witnesses cannot be had we have to resort to other, proof. These will have greater weight in some cases than in others. If the case is stripped of any fact or circumstance to induce a suspicion of fraud, then a- recital will have greater weight. “ From the release, it is reasonable to presume that the parties intended to convey a_ legal estate. This deed, if not drawn by governor Livingston, was most likely drawn under his advice and direction, and is it not fair to presume that he drew the proper deeds to carry into effect the intentions of the parties. ? If he acted fairly, he would have doné so ; and is it not a fair presumption that he drew su’ch an instrument as was customary at that day, and deemed necessary to convey' the legal estate 1 “ It is proved that the lease and release was the ordinary mode of conveyance. Judge Benson says, that was the uniform practice; and colonel Troup says the same. This is an additional circumstance to induce the belief that a lease was executed, and it is for you.to determine.whether the circumstances are sufficient to satisfy you that what was usual and in accordance with the ordinary course of business, was done in this case. _“ But it is objected that the lease is not produced. The plaintiff has, in the opinion of the court, accounted for this, by proving it lost. It has been shown pot to have been the general practice to record the leases with the releases; very few appear ever to have been so recorded in proportion to the releases, and those produced in court, on the part of the defendant, have never been recorded1. It has been said that the lease had.performed its office the moment the release was executed, and was no longer of any moment. This is not correct; but if the parties were under that impression, it will in some measure account for their not keeping it with greater care. “If you are satisfied, from the evidence, that there was a lease duly executed, then the plaintiff has a right to recover, .unless some act has since been done changing the rights of the parties.. “ The defendant’s counsel have urged that this is not a case for presumptions in favour of the existence of á lease; that presumptions can only, be .resorted to when the possession accords with the fact to be presumed. There may be some question on this point. I have examined all the cases cited,, but I find none that come precisely to this case. So far as I understand the cases, presumptions cannot be resorted to jn hostility to the possession. The mere fact of a naked possession proves but little. Courts, therefore, admit evidence of the declarations of parties in possession of land, to show how they hold. In this case the possession maybe considered equivocal. Morris and wife would have been entitled to the possession, whether there was or was riot such a deed; and presuming,a lease, would not necessarily be presuming a fact in hostility to the possession. If you are therefore satisfied that Morris and wife were in possession, holding under the deed of marriage settlement, presumptions may be indulged in favour of the existence of the lease. But if you consider them holding the possession, in hostility to the marriage settlement, it is riot a case for presuming a lease. “ A lease and release are considered but one instrument, though in two parts. The absence of the lease is not the loss of an entire link in a chain of title, but it is a defect of a part of one instrument. Suppose a deed purporting to pass a fee, produced without a seal, and from the lapse of time or other cause, there is no appearance of,its ever having had a sealThen the party, must show that it had been sealed, for otherwise it would not pass the fee. By what kind of evidence could this fact be established Would it not be proper to look at the conclusion and attestation of the deed — Signed, sealed, &.c.? Would it not also be proper evidence, to show it was drawn by a man who knew that a seal was necessary to pass the estate, and other circumstantial evidence, and for the jury, from evidence of this description, to presume and find that the instrument was duly sealed, to supply the defect and infirmity of the deed ? “ If you are satisfied the lease, as well as release, was executed and delivered, a legal estate has been, snown in the heirs of Roger and Mary Morris, and the plaintiff will be entitled to recover, unless that title has been revested in Roger and Mary Morris, or one of them. “ It is said that the title has been revested in Mrs Morris, by some conveyance,. since the settlement deed. This you may presume, if in your opinion the evidence will warrant such presumption. But no redelivery, cancelling or the like, would have that, effect; there must have been a re-conveyance. This must also have been made before the marriage, or at the utmost length, before the birth of a child ; therefore you can only look to circumstances arising before the marriage, or before the birth of a child; unless- you should be of opinion that the acts of Roger Morris and his wife, which have been given in evidence, weré in hostility to this marriage settlement deed. The children may have, reconyeyed since they came of age. But the circumstahces do not weigh very strongly against, them before 1825, when they were first in a condition to assert their rights. There cannot be any very strong grounds for supposing the children ever reconveyed. And. if there is any thing to satisfy you there was a reconveyance, you will say so; and it will defeat the plaintiff’s right to recover. But in my judgment, the result will depend principally upon the question, whether a lease and release were duly executed and delivered, so as to passHhe legal estate, “ The deed of the state only passed such right to the defendant’s father as the state had ; and if the marriage settlement deed has been established, that was nothing more than the life estate of Morris and wife. -;It is not necessarily to be inferred from any of the acts read, that the state intended to take any greater interest than such as the persons attainted had. They, sold what the commissioners of forfeitures judged had been forfeited. They did not examine into the state of the title, but only exercised their judgment upon such information as they had. It was for that reason that the state conveyed with warranty. The state cannot be presumed to have intended to conclude the rights of third persons who were not attainted. If, therefore, you shall find that the marriage settlement deed, consisting of a lease and release, was duly , executed and délivered on or about the time it purports to bear date, the children of Roger and Mary Morris acquired under it a contingent remainder, which became vested on their birth; and the plaintiff will be entitled to recover unless that interest was destroyed or put an end to by some subsequent reconveyance, of which you will judge and determine.” Upon this charge, and on the opinion, the court left the case to the jury. A verdict and judgment were rendered for.the plaintiff; and the defendant prosecuted this writ of error.