Martha Bradstreet, demandant, vs. George Clarke, tenant, 12 Wend. 602

By the Court, Sutheeland, J. A writ of right is the highest writ in the law, and lies not for the recovery of any estate less than afee simple. 3 Black. Comm. 193. Booth on Real Act. 84. It regards the legal estate only, and has nothing to do with mere equitable interests. Even in the possessory action of ejectment, the legal title always prevails ; much more in this action, (which is brought after the ordinary possessory remedies are lost by lapse of time or otherwise,) in which the right of possession can be established only by showing a full and absolute right of property.

Our inquiry then is for the legal title. If the demandant never acquired that, however strong and persuasive her equities may be, or may have been, she cannot succeed in this action or in the former. Admitting, for the present, that Gen. Bradstreet, acquired a legal estate in the Springfield patent, by way of resulting trust, under the purchase made by Gen. Schuyler, I shall, in the first place, inquire what became of that estate upon the death of Gen. Bradstreet. To whom did it pass under his will ? Did it vest in his daughters, Agatha and Martha, or in his executors, Schuyler and Smith?

The will, so far as it relates to this question, is as follows: “ All the rest of my estate, real and personal, I devise and bequeath to my two daughters, equally to be divided between them, as tenants in common, in fee; but I charge the same with the payment of £100 sterling per annum to their mother during her life. Notwithstanding the former devise for the benefit of my wife and daughters, I empower my executors to do all acts and execute all instruments which they may consider to be requisite to the partition of my landed estate.

And I devise the same to them <zs joint tenants to he hy them sold at such time and in such man ner as they shall think most for the interest of my daughters; wfrgjij t]le nef produce shall he paid in equal shares; the sum °f £100 sterling per annum being first deducted, or a capital to secure same) set apart for an annuity to my wife as aforesaid.” It is very clear upon authority, that the terms employed in the devise to the executors are such as would give them a legal estate in fee, independently of the doubt as to the actual intentions of the testator, arising from the previous devise to his daughters.

The word heirs is not necessary in order to the carrying of a fee in a will, although it is indispensable for that purpose in a grant. Any othér terms Or provisions, which clearly indicate the intention of the testator to transfer a fee, are sufficient. Thus the word estate or estates in a will carries a fee to the devisee. In the Countess of Bridgwater v. Duke of Bolton, 1 Salk. 237, the terms of the will were : “ all other my estate, real and personal, I give to my son-in-law, J. S.” Holt, Ch.

J. remarked, that the word estate was genus generalissimum, and included all things, real and personal; that it was not only a designation of the thing devised, but also of the testator’s interest in it, and covered the whole. In Barry v. Edgeworth, 2 P. Wms. 523, the terms of the will were : “I devise all my land and estate in D., to J. S.” The question was, whether J. S. took more than a life estate; and it was held that these terms were not only descriptive of the lands intended to be devised, but also of the testator’s interest therein, and that a fee passed.

The master of the rolls remarked that the case of the Countess of Bridgwater v. Duke of Bolton, had settled the law on this point: that a devise of all one’s real estate, comprehends not only the thing, but also the interest in it. In Roe v. Harvey, 5 Burr. 2638, Lord Mansfield said, that the word estate carried every thing, unless restrained by other expressions. In Roe v. Wright, 7 East, 259, the terms of the will were : “ I give, devise and bequeath unto my grandson, John Wright, all my estate, lands, &c, known and called by the name of the Coal Yard, in the parish of St. Giles.

It was admitted that the word estate in a will generally comprehended hot only the subject matter of the devise, but also the de-visors interest therein. But it was contended, that in this case, when taken in connection with the words which immediately followed, known and called, &c. it was to be considered as merely descriptive of the name and local situation of the thing devised. Lord Ellenborough, however, who delivered the opinion of the court, rejected that construction, and held that a fee passed to the devisee. In Holdfast v. Marten and another, 1 T.

R. 411, the terms of the devise were “ I give and bequeath to Mrs. Marten my estate at Braywick.” It was the unanimous opinion of the court of king’s bench that Mrs. Marten took a fee by virtue of the word estate. Buller, J. remarked that the word estate was the most general word that could be used ; that so far from its being necessary to add words of inheritance to make it pass a fee, words of restraint must be added to make it carry a life estate for it is genus generalissimum. In Tuffnel v.

Page, 2 Atkyns 37, the words were, “ My estate in Kirby Hall, near Henningham Castle, I give to my brother.” Lord Hardwicke held that not only the land, but all the testator’s interest in it, passed; for although the terms imported a locality, the testator meant his interest too. Fletcher v. Hinton, 2 T. R. 656, it was held that the word estates in a will would carry a fee, as well as estate, although Lord Hardwicke, in Goodwyn v. Goodwyn, 1 Ves. 229, had expressed a doubt upon the subject, and remarked that estate, in common parlance, means a description of land. In Telly v. Simpson, cited in 2 T.

R. 659, note b., Lord Hardwicke, however, seems to have entertained ■ no doubt that the fee would pass under the word estates, unless restrained by the context. Cases upon this point might be indefinitely extended. Cas. Temp. Talb. 157,284. 3 P. Wms. 295. 3 Atk. 486. 2 Vesey, 48. 3 Wils. 414. Cowp. 352, 657. Dougl. 734. In Bailis v. Gale, 2 Vesey, 48, a devise of all that estate I bought of Mead, was determined by Lord Hardwicke to carry a fee. This doctrine was considered by the supreme court of the United States, in Lambert’s Lessee v. Paine, 3 Cranch, 97. It was discussed with great ability by the counsel.

The words there were, “ I give to Doctor George Gilmer all the estate called Marrowbone, lying in Henry county, containing by estimation 2585 acres. It was argued with great force, or at least great plausibility, that the word estate here was descriptive merely of the land,"and not of the testator’s interest in it; but the court held it to have been used in its technical sense, and that it carried afee to the devisee. Vide Jackson v. Robins, 16 Johns.

R. 535, 587, 8, where most of the preceding cases are discussed by the counsel, and reviewed by Chancellor Kent. 4 Kent’s Comm. 534, et seq. 2 Preston on estates, ch. 6, from p. 68 to 288. 1 have cited these cases, not so much for the purpose of establishing the general principle, that the word estate in a devise carries a fee, as with a view to repel the suggestion which might be made, that the term landed, estate, which is used in this will, was intended merely to be descriptive of the realty, as distinguished from the personalty, and had no reference to the quantum of interest.

A conclusive answer to such a suggestion, if it should be made, will be found in several of the preceding cases. But the executors took a fee in the testator’s landed property, not only by virtue of the term estate, but also by necessary implication, from the power given them to sell and dispose of it. Chancellor. Kent states the principle upon this subject with great accuracy and perspicuity, in the case of Jackson v. Robins, 16 Johns. R. 588, in which the construction of Lord Stirling’s will was involved.

He saysj “ It may be laid down as an incontrovertible rule, that where an estate is given to a person generally or indefinitely with a power of disposition, it carries a fee; and the only exception to the rule is, where the testator gives to the first taker an estate for life only, by certain and express words, and annexes to it a power of disposal. In that particular and specific case, the devisee for life will not take an estate in fee, notwithstanding the distinct and naked gift of a power to dispose of the reversion.” This doctrine has the authority of Lord Coke, Co.

Litt. 9, b., who says, that an estate of inheritance may pass without the word heirs: as if a man devises twenty acres to another, and that he shall pay to his executors £10 for the same, hereby the devisee hath a fee simple, by the intent of the devisor, although it be not the value of the land. So it is if a man devise lands to another in perpetuam, or to give and to sell, a fee simple doth pass by the intent of a devisor. Where A. devised his lands to B. to give, sell, and do therewith at his pleasure, it was held that the devisee took a fee simple. Bacon’s Abr. tit. Devise, pl. 30.

Where A. devised lands to his wife, to dispose and employ them on her and her son at her will and pleasure, it was decided that she took an estate in fee. Moore, 57. In Timewell v. Perkins, 2 Atk. 102, the devise was as follows : “I give my houses in Broad-street to M. T. for her own use, to give away at her death to whom she pleases.” Lord Hardwicke held that these words created an estate in fee. Goodtitle, ex dem. Pearson v. Otway, 2 Wils. 6. Cruise. Dig. tit. Devise, ch. 11, § 11. 12, et seq. Com. Dig. tit. Devise, n. 2, 4, 12. In Jackson ex dem Bush v. Coleman, 2 Johns.

R. 391, the terms of the devise were, “ I give to my wife the use of all my real and personal estate, to use and dispose of at her pleasure.” The wife was held to take a fee by virtue of the power of disposition. In all these cases the devise was general, but where it is in terms for life the devisee will not take a fee, but only an estate for life, with a power to dispose of the reversion. Thus in Thomlinson v. Dighton, 1 Salk. 240, the devise was to A. for life, and then to be at her disposal to any of her children who shall then be living. A. took but an estate for life, with power to dispose of the fee.

Parker, Ch. J. said, that the estate here given was express and certain — an estate for life; and that the disposing power was a distinct gift, and came in by way of addition — that it could not convey the estate. But where the devise was to A. in general terms, with power to sell and devise, as he was empowered to convey a fee he is construed to have one. The power is held to convey the estate. In Croppling v.

Croppling, 2 Cox, 395, the testator devised a freehold estate to his wife for life, after which followed these words: “ and she shall dispose of the same among my children by her, at her decease, as she shall think proper.” The wife made no disposition of the estate, and it was held that the estate descended to the heir at law. Reid v. Shergold, 10 Ves. 370, is to the same effect. A distinction exists between a devise to executors with power or direction to sell, &c. and a mere direction to sell without any devise in terms.

All the cases agree, that in the former case the lands vest in the executors in fee; in the latter they vest in the heir until the power is executed. The one is a power coupled with an interest, the other a mere naked power. Cruise’s Dig. tit. 88, Devise, ch. 5. Powell on Dev. 300, et. seq. Bergen v. Bennett, 1 Caines’ Cas. in Err. 16, opinion of Kent, J. Jackson v. Burr, 9 Johns. R. 104. This question was much discussed in the case of Jackson v. Schauber, 7 Cowen, 193, and 2 Wendell, in error, involving the construction of the will of William Apple : all the authorities upon the subject are there collected.

The will in that case gave the executors an authority to sell the real estate, but contained no devise to them in terms. The supreme court held it to be a naked power, and that the land descended to the heirs. The court of errors, however, held, that as it was apparent from other parts of the will that the testator intended that the estate should not descend to his heirs at law, it vested in his executors under the power to sell. It is unnecessary, however, to pursue this distinction, as there is in this case an express devise to the executors.

If they took any thing under the will, therefore, it was an estate in fee subject to the trust declared in the will, and not an estate for life. Although the will is inartificially drawn, I think it admits of very little doubt that the testator intended that the title to his landed estate should vest in his executors, and not in his daughters. Literal effect cannot be given to all the terms of the will, upon any construction of it.

There is, in the first place, a clear devise to the daughters; and then a devise, in equally clear and explicit terms to the executors, with directions to sell the estate, and divide the net proceeds between the daughters, in equal shares.

It is evident that the testator, or whoever drew the will, was aware that the devise to the executors was incompatible with the previous devise to the daughters, for he says, “ Notwithstanding the former devise for the benefit of my wife and daughters, I empower my executors to do all acts, &c., and execute all instruments,. &c.; and I devise the same to them as joint tenants, to be by them sold,” &c.

The clear import of this phraseology is, that the previous provision is in no respect to affect or prevent the legal operation of the latter ; that so far as the first devise was inconsistent with the latter, it must yield to it: Notwithstanding what I have already said, still-1 devise my landed estate to my executors.

The intention of the testator to give the whole beneficial interest in his estate to his daughters, is carried into effect upon either construction of the will; for if the executors take the estate, it is to be sold, and the produce divided between the daughters — they are but different modes of accomplishing the same ultimate purpose. But where the provisions of a will are so repugnant that both cannot stand, the latter, I apprehend, must prevail. This is the doctrine of Lord Coke. In 1 Inst. 112, b., he says, “ Where there be divers devises of one thing in the same will, the last devise taketh place.

Cum duo interse pregnaniia reperientur in testamen-to ultimum ratium est. It is true, in the note upon this passage, it is said that the authorities are not consistent upon the effect of two inconsistent devises in the same will. Some hold with Lord Coke, that the second devise revokes the first; others think that both devises are void on account of the re-pugnancy, but that the opinion supported by the greatest number of authorities is that the two devisees shall take in moieties. Hargrave & Butler’s Notes, n. 144. Vide English ed. of Plowd. 541, where the authorities are collected.

Roberts on Wills, 430, note Powell on Dev. 411. Whatever the rule may be, where the question arises upon a simple devise of a particular thing or estate, there can be no such thing as taking by moieties in a case like this. It seems to me, in the nature of things, that in such a case the last devise must prevail. The premises in question having thus vested in fee in Gen. Schuyler, under the will of Gen.

Bradstreet, the next inquiry is, how did he dispose of the estate 1 It appears from Schuyler’s answer to the bill filed against him by Evans and wife, in 1788, that he had anxiously consulted the most eminent counsel in the state, in relation to the most safe and proper manner of discharging himself from the burden of this trust. Letters are set forth in his answer, from Alexander Hamilton, Samuel Jones and Richard Harrison, in answer to his inquiries upon this subject, and giving it as their opinion, that he ought to sell the interest of Bradstreet; that Mr.

Ludlow one of the attorneys of Sir Charles Gould, might and would become the purchaser; and that then there would be no difficulty in making a final settlement with Evans and wife, in reía» tion to their interest, and with Sir Charles Gould as the representative of the other parties in interest, under the wills of Mrs. Livius and Martha Bradstreet. This arrangement, however, was not carried into effect, in consequence of the refusal or inability of Evans to give satisfactory security to Schuyler, against any claims or debts which might arise against the estate of Gen. Bradstreet. Gen.

Schuyler also states in his answer, as an evidence of his fidelity in the discharge of his trust that he had referred several persons, who had applied to him to purchase parts of the said real estate, to Evans, and to Messrs. Ludlow and Gould, (the attorneys of Sir Charles Gould,) informing the applicants that he would confirm whatever agreement they might respectively enter into with Evans, Ludlow and Gould. No settlement, however, appears to have been made between Schuyler and the heirs of Bradstreet, nor any conveyance to have been executed by Schuyler until the 16th day of May, 1794, when the deed to Mrs.

Evans and to Edward Gould, as the attorney of Sir Charles Gould, bears' date. The general characteristics of this deed are, that it purports to be a deed from Schuyler, as the executor of Bradstreet, of the one part, and Agatha Evans, (who had then become a widow,) one of the daughters of Bradstreet, and Edward Gould, attorney to Sir Charles Gould, the only executor of the last will and testament of Martha Bradstreet, deceased, the other daughter of Bradstreet, of the other part.

It recites the will of Bradstreet, and sets forth all its material provisions ; that at the time of the making of said will, he, Schuyler, was seised in fee of certain lots of land, particularly enumerating them, and that as to one undivided sixth part of said lots of land, he was seised in trust for Bradstreet; that Agatha Evans, one of the grantees, was one of the daughters of Bradstreet, and that the other daughter, Martha, made her will on or about the 15th of May, 1781, by which she divided her estate between her sisters, Mrs. Evans and Mrs.

Livius, and Samuel and Martha Bradstreet, the children of her brother Samuel; and that she appointed SirCharlesGould sole executor of her will, and empowered him to sell and dispose of all her real estate in North America, or elsewhere, and to execute convey-anees for the same.

It then states that partition had been made of the several lots, and enumerates the lots which fell to him as trustee for Bradstreet; and that the indenture was made, as well with a view to invest the said Agatha Evans with a legal title to her proportion of said land, &c. as to convey the rest and residue thereof to the said Edward Gould, in trust for the several persons who may he entitled thereto, under the will of Martha Bradstreet. The deed then grants and conveys two third parts of the lands therein described to Mrs.

Evans, and the remaining one third to Edward Gould, his heirs and assigns, hut in trust to sell the same and dividetheproceeds, in conformity with the provisions of the will of Mrs. Bradstreet, and provides that the conveyances to be executed by Gould should express upon their face the said trusts as to the one third part of said premises.

In relation to this conveyance, the counsel for the demand-ant contended, that nothing passed under it to Edward Gould; that Schuyler had only a power to sell under the will of Bradstreet ; that this will was referred to in the deed, and therefore the extent of Schuyler’s power was brought home to the knowledge of Gould; that this conveyance was not a sale, and therefore not an execution of the power, and of course the grantee acquired nothing. This objection assumes that Schuyler had a mere naked power to sell, and if that were true, there would be force in the objection.

But if I have been successful in showing that Schuyler took an estate in fee under the will of Bradstreet, this objection is disposed of; for if he had the fee, he had of course the power of alienation, for it is a necessary incident of that estate.

The direction in the will that he should sell the estate at such time, and for such price as he should think expedient, and divide the proceeds between the daughters of the testator, did not confer upon him a power to sell — that he had before ; but it was a mere declaration of the trust, under and subject to which he took the estate ; and it passed to the grantee subject to that trust; not merely by virtue of the reference to the wills of General and Martha Bradstreet, but by the express terms of the deed itself.

If Gould did not acquire the legal title under this conveyance, then, so far as the paper title is concerned, independent-]y of the question of adverse possession, it still remains in the heirs of Schuyler ; for there is no evidence of any other conveyance by him or his heirs. Gould is the only medium through which the demandant pretends to have acquired the legal estate in the premises in question, if it was ever vested in Gen. Schuyler. She would effectually destroy her own title, therefore, by showing that nothing passed by this conveyance.

I apprehend the demandant is not now at liberty to deny that Edward Gould was the lawful attorney and agent of Sir Charles Gould, and that he took under the deed of Schuyler all that it professed to convey to him, in trust for the purposes of the will of Martha Bradstreet. In 1803, the de-mandant and her then husband, Matthew Codd, filed a bill in the court of chancery of this state, against Edward Gould and Samuel Bradstreet.

The will is not set forth in the case, but it would appear from the decree that one object.of the bill was to determine the respective rights of the demandant and her brother Samuel, under the will of Mrs. Livius. to the property in the possession of Gould, as trustee under'the deed from Schuyler. Mrs. Livius was one of the devisees under the will of Martha Bradstreet. She gave her one third of her estate, the demandant and her brother another third, and the residue to Mrs. Evans. The deed from Schuyler conveyed to Mrs.

Evans all her share, under the wills of her father and Martha Bradstreet, and to Edward Gould all the residue of the estate, in trust for the other devisees of Martha Bradstreet, to wit, Mrs. Livius and the demandant and her brother. Edward Gould in this manner became the trustee of Mrs. Livius. Mrs.

Livius subsequently died, and gave all her estate to the demandant and her brother Samuel Bradstreet; and this bill was filed against Gould and Samuel Bradstreet probably to determine the respective rights of the demandant and her brother to the property thus held in trust by Gould, and to compel him to account, and to convey to her whatever of her estate was still in his hands.

The decree accordingly adjudges and directs that Gould do transfer to Matthew Codd, the demandants’ husband, all the personal estate in his hands, as trustee of Elizabeth Livius, deceased, mentioned in the pleadings; and that he transfer and convey unto the complainant, Martha Codd, all the real estate vested in him as trustee aforesaid; but that nothing therein contained shall make him personally responsible for any of the said trust property which may have been converted into money, and for which he would have been liable, if he had not become a bankrupt and obtained a certificate of discharge; and the decree directs that each party shall pay his own costs.

The decree further directs a reference to a master, to take an account of the real and personal property in the possession of Gould, as trustee as aforesaid, and not converted into money before his bankruptcy, and to direct a proper transfer and conveyance to the complainant as aforesaid. It is very evident, from the decree, that Gould was proceeded against, and charged as the rightful and legal trustee of Mrs. Livius, and not as an intermeddler with her estate.

He is described as such trustee, and is not charged with costs, .which he unquestionably would have been, had he been considered an intermeddler or wrong doer. But all doubt upon this subject is removed by the conveyance which was executed by Gould to the demandant, in obedience to the decree, and the form and substance of which it is to be presumed were settled by a master of the court as the decree directed. This conveyance bears date the 22d of October, 1804.

It commences by setting forth, by way of recital, all the material provisions in the deed from Schuyler to Gould, of the 16th of May, 1794, to wit, among other things : 1. That the said Edward Gould was attorney to Sir Charles Gould ; 2.

That the deed was made as well to invest Agatha Evans with a legal title to her proportion of the lands devised to her by the wills ' of John Bradstreet and Martha Bradstreet, as to convey the residue of the land, &c. devised thereby to the said Edward Gould, in trust for the several persons who mightbe entitledto the benefit thereof, under the will of the said Martha Bradstreet; 3. A conveyance of one third thereof to Gould, upon the said trust; 4.

That the said Martha, the demandant, since the execution of the said release from Schuyler, had, by virtue of the last will and testament of Elizabeth Livius, become entitled to all her interest in the said premises, so released as aforesaid by Schuyler to Gould, in trust, and not converted into money; 5. That said Gould had become a bankrupt; 6. That by the aforesaid decree, he had been directed to convey and account as therein stated.

It then proceeds to convey to the demand-ant and to her heirs and assigns, in consideration of the premises’au(* *n pursuance of the decree, “ all the real estate held by him at the time of his becoming a bankrupt as aforesaid, as trustee as aforesaid, for the said Elizabeth Livius, by virtue of said indenture of release, executed by Schuyler as aforesaid, and the several wills therein referred to ; and also all the real estate held by him, the said Edward Gould, at the time of his becoming a bankrupt, &c. as trustee for the said Martha, by virtue of the said several indentures and wills last referred to. ' This decree and deed were given in evidence by the demandant herself, as links in her chain of title, and are relied upon by her for that purpose; and she certainly cannot be permitted to deny the material facts which it alleges, either by way of recital or otherwise, to have existed, and without the existence of which she acquired nothing under the deed.

It is not necessary to go into a discussion of the doctrine of estoppel to establish this proposition. The principle is well stated by Chancellor Jones, in Sinclair v. Jackson, 8 Cowen, 586. It is this: “ That a man who admits a fact or deed, in general terms, either by reciting it in an instrument executed by him, or by acting under it, shall not be received to deny its existence.” In Shelly v.

Wright, Willes, J., it was held that a party executing a deed was estopped by the recital of a particular fact in that deed to deny that fact; and several of the old authorities are referred to by Chief Justice Willes: Cro. Eliz. 756, 757; Alleyn, 52; 2 Leon. 11; 1 Roll. Abr. 870, 872; Co. Litt. 352, b.; Comyn’s Dig. Est. a. 2; 2 P. Wms. 432; Dann ex. dem. Colden v. Cornell, 3 Johns. Cas. 474; and Carver v. Jackson, 4 Peters, 83, et seq. where the doctrine of estoppel is considered at large, and most of the cases are referred to. An estoppel is reciprocal, and binds both parties. Com. Dig. Estoppel, E. Co.

Litt. 352, a. If Edward Gould could not be permitted to deny that he was the attorney of Sir Charles Gould, and took, under the deed of Schuyler, all that it professed to convey to him, in trust for the purposes of the will of Martha Bradstreet, the demandant, I apprehend, is equally concluded from denying those facts, by the decree in chancery and the deed of Gould, in both of which they are affirmed. It is true, as a general principle, that a feme covert is not bound by matters of estoppel accruing during coverture. Com. Dig. Estoppel, c.

But where a feme covert goes into a court of chancery to ask its aid on the ground of the existence of particular facts, and obtains the relief sought for, I apprehend she will be held precluded from subsequently denying those facts. She acts under the protection of the court, and will be bound precisely as though she were a feme sole.

But whether she would be bound or not by way of estoppel, by the mere force of the decree and the contents of the deed, if she had subsequently done nothing to recognize or affirm them, yet when she introduces and relies upon them as evidence, she makes them evidence in full, and their contents may properly be used against her as evidence. The legal estate in the premises in question then passed to Edward Gould, under the deed of Schuyler subject to the trusts therein declared.

Edward Gould in his own right, and Edward Gould, Richard Harrison and Charles Wilkes, as the executors of Agatha Evans, by deed dated the 11th June, 1796, conveyed the whole of lot No. 32 to William Cooper. Mrs. Evans it will be recollected, owned three fourths of the estate of her father Gen. Bradstreet. She made her will on the 29th November, 1794, by which, after certain bequests, she devises the whole of her estate to Richard Harrison, Edward Gould and Charles Wilkes, their heirs and assigns, upon certain trusts declared in her will, and appointed them her executors.

These executors, then, and Edward Gould held the whole legal estate of the entire lot No. 32, and their deed of the 11th June 1796, purported to convey the whole to William Cooper. It is objected to this deed, 1. That it was a deed from Gould in his own right, and not as trustee of the demandant, and therefore did not convey her interest as trustee ; 2.

If it would otherwise be held to cover his trust interest, yet, as the deed from Schuyler, under which he derived all his interest and authority in the premises, expressly required him to insert the trusts upon which he held the estate in all the conveyances which' he might make of the same, this deed was void on account of the omission to set forth those trusts upon the face of it; and 3. That the certificate of proof was insufficient to entitle •(. tQ jje recor¿e(j- The deed itself is not set out in the case.

Nil that is said of it is, that it was a deed from Edward Gould *u own r'g^b ar>d from Gould, Harrison and Wilkes as executors of Mrs. Evans, for the whole of the lot, &c. Now it does not necessarily follow, from this statement, that the trusts upon which he held the estate were not stated in the deed. This phraseology may have been used merely to show that he was a party to the deed in two capacities, as representing two distinct interests. The objections made to the introduction of the deed were simply, that the certificate was insufficient, and that no right had been shown in the grantor.

However, admitting the fact to have been as it is now assumed to have been, there is no force in the objection. Gould was not a mere trustee; he had an estate in fee in the premises, with express power or directions to sell, and apply the proceeds in a particular manner. A trustee of this description need not set forth the trusts in his conveyances. Cui bono 1 Why should he 1 He has the absolute power of sale, and if there is no fraud, the trust attaches only to the proceeds. 8 Cowen, 571, 584, and the authorities there cited.

There is no pretence, that Gould had or claimed any interest in these premises, except under the deed of Schuyler; his conveyance was undoubtedly intended to convey that interest, and such I think was its legal effect. ' The provision in the deed from Schuyler to Gould, that he should set forth the trusts in his conveyances, &c. I apprehend, is to be considered as directory merely, and not as a condition precedent. Its omission did not affect the validity of the conveyance at law; but neither at law nor in equity can the demandant avail herself of it.

Under the decree of the court of chancery in favor of the demandant against Gould, he was directed to account for the proceeds of all sales previously made by him. This was in effect a ratification of those sales. The demandant submitted to the decree, accepted a conveyance under it, and although it does not appear that ap account was actually stated between her and Gould, such is the legal presumption. In judgment of law she has received the proceeds of this sale, and cannot now object to its regularity. The certificate of proof of the deed was sufficient to entitle it to be read.

The acts then in force in relation to the proof and acknowledgment of deeds, simply required, in order to entitle them to be recorded, “ that they should be duly acknowledged by the party or parties executiug the same, or the execution thereof be duly proved by one or more of the subscribing witnesses to the same, before one of the justices of the supreme court, a master in chancery, &c. 2 Jones & Varick’s Rev. Laws, 266. It left the form of the certificate to the discretion of the officer before whom the deed was proved.

The proof in this case was taken by Chancellor Kent, then a master in chancery: and the certificate states, that “P. E. Fleming, one of the subscribing witnesses to the deed, appeared before the officer, who, being sworn, said that he saw the grantors therein named severally execute the same for the uses therein mentioned ; and that A. Kirkpatrick, with himself, subscribed their names thereto as witnesses. This was abundantly sufficient under that act.

Subsequently the legislature enacted “ that no proof of a deed should be taken, unless the officer taking the same should know the person making such proof, or have satisfactory evidence that he was a subscribing witness to such deed, and that such witness knew the grantor, and required that such knowledge or evi» dence should be inserted in the certificate. 1 R. L. of 1801 p. 478. Previously to this, it was not necessary to set forth in the certificate all the circumstances or evidence constituting the due proof. The fact that the officer knew the witness was implied in the assertion that A.

B., one of the subscribing witnesses, appeared before him, and the fact that such witness knew the grantors was also implied in the declaration under oath, that he saw them execute the deed. Having thus traced the legal estate in the premises in question down to 1796, and having shown it then to have vested in William Cooper under the deed from Gould and the executors of Mrs. Evans, I deem it entirely unnecessary to examine the subsequent conveyances from Cooper and his grantees and executors, by which the tenant contends he obtained a regular and valid paper title.

We have already traced it one stage beyond the point from which the demandant contends that it came to her. We have shown that it passed from Edward Gould in 1796, and could not therefore have' been conveyed by him to the demandant in 1804. What became of the title subsequently to the conveyance to Cooper, isa question in which the demandant has no interest. She must recover in this action, as in the action of ejectment, on the strength of her own title, and cannot rely upon the defect of title in her adversary.

From 1796 down to the commencement of this action in 1829, a period of thirty-three years, these premises have been actually occupied and improved under a claim of absolute title and ownership, by virtue of this conveyance to Cooper; and this possession, from its commencement to the present time, has been marked by all the characteristics necessary to render it adverse to all the' world. It cannot be necessary for me to go into a review of the cases upon this subject. If there is any doctrine familiar to the profession in this state, and to this court, above all others, it is the doctrine of adverse possession.

To constitute an adverse possession, it is not necessary that there should be a rightful title. All that is necessary is, that it should be a possession taken and held in good faith under claim and colour of title, and exclusive of any other right. The defence of adverse possession assumes that the defendant has not a valid legal paper title ; if he had, he need not rely upon the length of his possession. The fact of possession and the quo animo, it was commenced and continued are the only tests. Teller v. Burtis, 9 Johns. R. 174. Smith v. Lorillard, 10 id. 356. Jackson v. Wheat, 18 id. 40. Jackson v.

Newton, id. 355. Dunbar v. Todd, 2 Caines, 183. Jackson v. Ellis, 13 Johns. R. 118, Livingston v. The Peru Iron Co. 9 Wendell, 511. He need not even produce the deed under which he claims ; and if, when produced, it is defective as a deed, as for the want of a seal or otherwise, it will not destroy the effect of the defendant’s possession. 18 Johns. R. 40, 361. Jackson v. Le Frambois, 8 Cowen, 594, 596.

It was said by the counsel for the demandant, that, as Edward Gould, the grantor of Cooper, professed to act only as the attorney for Sir Charles Gould, the executor of Martha Bradstreet’s will, under which the demandant claims, the possession under his ■•conveyance can never become adverse to the demandant— that they both claim under the same title. This is an entire mistake.

A conveyance by an attorney or agent, professing . to convey the whole and absolute title, is a good foundation for an adverse possessionand if is perfectly immaterial for that purpose whether he had the requisite authority to convey or not, for, although a deed professedly executed under a power will not pass the estate, if the power did not in fact exist, yet it is sufficient to give color to the grantee’s claim of title, and stands upon the same footing with any other deed, which, for the want of title in the grantor, or for any other defect, does not actually pass the estate.

This point was expressly adjudged in Jackson v. Johnson, 5 Cowen, 101. 3 id. 229. 5 Day, 181. The possession of a grantee is as adverse to his grantor, and to any other person claiming the same title, as it is to all the rest of the world. This was expressly held in Pawlet v. Clarke, 4 Peters, 504, and Bradstreet v. Huntington, 5 id. 429, where it is correctly said by counsel that a purchaser does not take his possession in subserviency to the title of his grantor; he holds for himself and adversely to his grantor, and the case of Jackson v. Newton, 18 Johns.

R. 362, and the other authorities there cited, fully sustain this position. This must be so, upon the principle which lies at the foundation of the doctrine of adverse possession. It is perfectly immaterial, therefore, so far as the general doctrine of adverse possession is concerned, whether Gould had the legal estate, with power to eonvey these premises, or not, when he executed the deed to Cooper. Cooper entered, claiming the title under it, and it was at all events sufficient to give color to the claim.

But when we come to consider whether the defendant is protected against the running of the statute by her disabilities of infancy and coverture, it becomes very important to determine in whom the legal estate was when .the adverse possession commenced. The statute runs only against the legal estate, and if that was in the demandant when the conveyance to Cooper was made, and she was then under one or more disabilities, the operation of the statutes as against her would have been suspended until those disabilities «ceased.

But if I have been successful1 in showing that it was not in her, no matter where it was, whether in Schuyler or Gould, ^e statute having commenced running, its operation would not be suspended by any disability under which the de-mandant might be laboring when a right of entry subsequently accrued to her, admitting that she did subsequently acquire it. This whole doctrine is fully considered and settled in the case of Jackson, ex dem. Swartwout and wife, v. Johnson, 5 Cowen, 74; and I deem it unnecessary to dwell longer upon it. Whether the executors of Mrs.

Evans conveyed to Cooper with or without the consent of the Symingtons, is a matter with which the demandant has no concern. The Symingtons never having objected to the sale, the legal presumption is that they assented to it and received from the executors their distributive share of the proceeds. As to the demandant it is res inter alios acta. According to the true construction of the decree of the court of chancery, under which the deed from Gould to the demandant of 22d October, 1804, was given, and of the deed itself, none of the lands previously sold and conveyed ■ by Gould were embraced therein.

He was to account for the proceeds of previous sales, and convey all that remained in his hands. It was suggested by the counsel for the demandant, that the statute of limitations in relation to real actions allowed of cumulative disabilities.

The language of the proviso affords some color for the suggestion; it is, “ that no part of the time during which the plaintiff shall have been within the age of 21 years, insane, feme covert, or imprisoned, shall be taken as a part of the said limitation of 25 years.” But it is believed that the same construction has uniformly been given to this proviso, in this respect, as to that in relation to possessory actions — that where the statute has once begun to run, a subsequently accruing disability will not impede or suspend it.

The counsel cited no authority in support of their construction, and I am persuaded none can be found. There certainly can be no reason for allowing of cumulative disabilities to a real action, which would not apply with equal force to the action of ejectment. The wills of Mrs. Bradstreet and Mrs. Livius were properly admitted in evidence. Mrs.

Bradstreet’s will was admitted to have been regularly proved in England, and the other was offered as an ancient deed: and although it had never been proved, it was admitted that it had been deposited in the proper office in England, and that liberty had been given to the demandant to take it from the files of that office; and it was shown that lands had been held under it in Cosby’s manor, in this state. This evidence brought it within the principle which allows ancient deeds of more than 30 years standing to be read without proof.

Having come to the conclusion that the demandant has failed to show a legal title to the premises in question, it is not necessary for me to enter at length into the discussion of the question, whether a constructive seisin alone, resulting from the proof of a legal title without actual seisin, would have entitled her to recover in this action. At common law actual seisin was undoubtedly necessary to maintain a writ of right. There , is no discrepancy in the authorities upon this point. Lord Coke, Co.

Litt. 293, a, says, “ if neither the demandant nor any of his ancestors were seised of the land within the time of limitation, he cannot maintain a writ of right, for the seisin of him of whom the demandant himself purchased the land availeth not.” In Belville’s case, Coke’s R.

part 4, p. 9, it is said: “ So the seisin which is requisite in a writ of right of land ought to be actual and not seisin in law. ” Booth, in his valuable Treatise on Real Actions, page 111, says: Because possession is an evidence of right and property, therefore, in all real actions in the right (except such as are grounded upon the seignory, and not upon the seisin of the land as a writ of escheat, &c.) for recovery of lands and tenements, the de-mandant in her count must allege a seisin and taking of the profits, which is called the esplees, so that it must be an actual seisin. ” Mr.

Sergeant Williams, in a note to Williams v. Gwin, 2 Saund. 45, b., says: “ In order to maintain this action, a writ of right, the demandant must show an actual seisin, either in himself or his ancestor, by taking the esplees or profits of the land; therefore it is held that a.purchaser cannot maintain the action, except upon his own seisin. ” I had occasion to refer to these and various other authorities upon this point, in Williams v. Woodward, 7 Wendell, 251.

We there held that a devisee could not maintain a writ of right upon the seisin of his testator 5 and the English authorities there referred to undoubtedly establish that a devise, as such, cannot maintain a writ of right. 2 Sch. & Lef. 104, 604, S. C. 2 Merivale, 255, 273, 304, 329. 1 H. Black. 1. Mr. Justice Story, however, in Given v. Liten and others, 8 Cranch, 245, referred to several ancient authorities to show, that an actual entry and perception of esplees were not in all cases necessary to be proved in order to show an actual seisin, even at common law. In Hargrave’s Note, 3 Co.

Litt. 24, it is said in terms, that an actual entry is not always necessary to give a seisin in deed ; for if the land be leased for years, the husband may be tenant by the curtesy without entry or even receipt of rent. So in 1 Co. Litt. § 417, 418, it is said that if a man have occasion to enter into different parcels of lands in divers towns in the same county, an entry into one parcel, in the name of all, will give him a good seisin of all, as if he had entered in deed into every parcel. So of livery of seisin of one parcel in the name of all. And in

section 419, it is said that if aman hath title to enter into any lands, and if he dare not enter into the same, or any parcel thereof, for fear of beating, mayhem or death, if he approach as near as he dare, and by word claim the lands to be his, he has as good a seisin as if he had entered in fact; although he never before had possession or seisin of those lands. These cases show, as Judge Story remarks, that there are cases in which the law gives the party a constructive seisin in fact or in deed. The common law regards the nature of the case in the application of its principles.

It proceeds by general rules; but where a literal compliance with those rules is impossible, it accepts a performance which essentially accomplishes the original purpose and reason of the rule. The only reason for ever requiring livery of seisin or actual delivery of the possession of land, in order to perfect a title to it, was to make the change of title and possession notorious. It was a public ceremony, supposed to be performed in the presence of the vicinage.

The very object of the rule, as Judge Storyremarks, was notoriety — to prevent frauds upon the lands and upon the other tenants; and he asks, with great force, what notoriety could an entry, a gathering of a twig or an acorn in an uncultivated country, in wild and impenetrable woods, convey, where there were no inhabitants within-miles of the place.

He says the reason of the rule does not apply to such a state of things ; and the conclusion to which the court in that case came upon this point, was, that a conveyance of wild and vacant lands gives a constructive seisin thereof in deed to the grantee, and attaches to him all the legal remedies incident to the estate. This court had previously adopted the same principle in Jackson, ex dem. Beekman, v. Sellock, 8 Johns. R. 262.

It is as clear a doctrine of the common law, that actual entry by the wife or husband is necessary to the completion of a tenancy by the curtesy, as it is that it is necessary to maintain a writ of right; and yet, in the preceding case, it was held, that where a feme covert was the owner of wild and uncultivated lands, she was to be considered in law and in fact possessed, so as to enable her husband to become a tenant by the curtesy. The wife, in that case, derived her title by will, like the demandant here. She was a devisee.

Kent, J., in delivering the opinion of the court, says: ‘‘ The question is, was she not to be considered as seized in fact of these premises, so as to enable her husband to become a tenant by the curtesy. To deny this, he continues, would be extinguishing the title of tenant by the curtesy, to all wild and uncultivated lands. It has long been a settled point, that the owner of such lands is to be deemed in possession, so as to maiutain trespass; (though at law an action of trespass will not lie on a seisin in law before entry, 3 Black.

Comm. 210.) The possession of such property follows the title, and so continues until an adverse possession is clearly made out. This is the uniform doctrine of this court, and there is no reason why the same rule should not apply where the title by curtesy is in question. To require the actual occupation of such lands during the coverture, would be an unreasonable if not an impracticable requisition. The general language of the English cases is, that there must have been an actual entry, but the rule had reference to enclosed or cultivated lands.

We must take the rule with such a construction as the peculiar state of new lands in this country require; and this may be done without any departure from the spirit and substance of the English law; and he refers to several cases to show ^ateven 'n England, where actual entry could not be made, the law excused it. Co. Litt. 29, a. 3 Atk. 469. 7 Viner, 149, pl. 11. We had occasion also to consider this doctrine in relation to the estate by curtesy, in Jackson v. Johnston, 5 Cowen, 97, and the principle of the case in 8 Johns. R. was recognized as sound.

By the statute of uses, 27 H. 8, ch. 10, cestui que use is immediately seized and in actual possession, and may maintain assize or trespass against a stranger before entry. Cro. Eliz. 46. 2 Black. Comm. 238. 5 cowen, 98. Com. Dig. tit. Use, 1. Where the title is derived from a conveyance operating under and by virtue of the statute, actual entry therefore is unnecessary; and I agree with Mr.

Justice Story, that it will be found extremely difficult to maintain, that a deed or conveyance, which by the Zea; loci gives a perfect title to waste and vacant lands without further ceremony, will not yet enable the grantee to support that title by giving him the highest remedy applicable to it without an actual entry. 8 Cranch, 247. But I forbear enlarging upon ' this point. My opinion is, that if the premises in question were wild and uncultivated land when the demandant’s right of entry accrued, she might maintain this action without actual entry.

The power of the court to grant a new trial in a writ of right is too clear to require discussion. There is neither reason nor authority against it. The verdict is against law and evidence, and a new trial must be granted. New trial granted.