Hemingway, J., delivered the opinion of the court: The appellant had advertised for sale, and was about to sell, lands of the appellee, under the power contained in two mortgages, pur porting to have been executed by him and his wife to secure the payment of certain notes therein described. One mortgage bears date March 15, 1886, and recites that it was given to secure one note given for borrowed money and six notes for the interest thereon. The other is dated December 8, 1886, and was given to secure the same notes, except one interest no e which had been previously satisfied. The appellee's son paid it. The appellee brought this suit to cancel both mortgages and to restrain a sale under them. The complaint alleges that the prior deed and the notes therein described are forgeries, and that the plaintiff was entirely ignorant of their existence until the day that he executed the latter deed. That appellant's agent visited his residence on the 8th day of December, 1886, for the purpose of obtaining the deed and notes of that date. That Mangum showed him the forged instruments and told him they had been forged by his son J. E. Watson and that he had thereby obtained the amount of money therein indicated. That he, Mangum, only wanted the money secured, and if that was done the liberty and good name of the son would be saved; but that if it was not done he would be vigorously prosecuted and sent to the peniten tiary and lose his standing at the bar and in so ciety. That in order to prevent the prosecution and ruin of the son, the deed of trust and notes, suit or a criminal prosecution. Hilborn v. Bucknam, 3 New Eng. Rep. 266, 78 Me. 482; Harmon v. Harmon, 61 Me. 2:27. all of which Mangum brought ready for signature, were executed and the deed acknowledged before a justice of the peace, who had accompanied Mangum for that purpose. The appellee testified that the only consideration for the deed and notes was Mangum's promise not to prosecute his son. The court found that the material averments of the complaint were true, and that the deeds and notes executed by appellee on the 8th of December were void because they were made upon an illegal and invalid consideration; and it decreed that the appellant should surrender for cancellation said deed and notes and be forever enjoined from selling the land or collecting the notes. From this judgment the appellant has appealed; he insists that the first mortgage and notes were executed by the appellee and are valid, and that the second mortgage and notes were given as a further security for the first, to remove all doubts as to their validity. He asked no affirmative relief in his answer and we have not considered what his rights would be if he had done so. The evidence shows that the appellee did not execute the mortgage of March 15, and fails to satisfy us that he was a party to a conspiracy to obtain money by means of it. As the deed was forged, the appellee is not estopped to set it up, although the son obtained money upon the faith of it and loaned a portion of it to him, unless he participated in the illegal acts. A sale under the power in that deed would cast a cloud on the appellee's title and was properly restrained. and neither can recover the consideration. Haynes v. Rudd, supra. Whether both parties stood in pari delicto depends upon the fact whether the note was given for compounding the felony. Ibid. Where an officer threatens to take the execution debtor to jail, unless he secures the debt by a chattel mortgage, when the officer has process requir- So where a note and mortgage were made by a ing him to do so, it is not duress. Bunker v. Stew-mother to protect her son from prosecution for emard (Me.) 2 New Eng. Rep. 424. A mere threat to sue and to arrest defendant in a suit, or by virtue of an execution which could be issued upon a judgment, would not be such duress as would avoid a promise induced by the threat. Dunham v. Griswold, 1 Cent. Rep. 307, 100 N. Y. 224; Higgins v. Brown, 2 New Eng. Rep. 450, 78 Me. 473; Shephard v. Watrous, 3 Caines, 166 b; Knapp v. Hyde, 60 Barb. 80; Farmer v. Walter, 2 Edw. Ch. 601. Mere threats of criminal prosecution, when no warrant has been issued or proceedings commenced, do not constitute duress. Bunker v. Steward, supra. Where a son, convicted and awaiting sentence with his father for conspiracy to defraud the latter's creditors, gives them a bond to secure their claims; and the court afterwards sentences defendants to pay a merely nominal fine and costs,-he cannot avail himself of the circumstances under which the bond was given as a defense to a suit on it. Avery ▼. Layton, 12 Cent. Rep. 159, 119 Pa. 604. Money paid upon a promissory note given by the plaintiff to prevent the prosecution of his son for larceny cannot be recovered, if both parties intended the compounding of the felony; and it is immaterial that the plaintiff was influenced by the duress of the defendant, since both were in pari delicto. Haynes v. Rudd, 3 Cent. Rep. 449, 102 N. Y. 872; Williams v. Bayley, 35 L. J. N. S. Ch. 717. bezzlement it will be canceled as without consideration and obtained by undue influence. Foley v. Greene, 1 New Eng. Rep. 17, 14 R. I. 618. In such a case the maxim, in pari delicto potior est conditio defendentis, does not apply. A deed for real estate, given in part consideration of the withdrawal of a criminal complaint for embezzlement, is not void, in the absence of proof of any unconscionable advantage taken. Wilcox v. Daniels, 2 New Eng. Rep. 499, 15 R. I. 261. A note for an amount actually due, executed to prevent the maker from being put out of possession of land under valid legal process, is not executed under duress. Davis v. Rice (Ala.) 6 So. Rep. 751. Threats and intimidation by the judgment creditor, which secured the execution of a bond, if true, render the bond void. Mills v. Rodewald, 17 Hun, 304; Whelan v. Whelan, 3 Cow. 537: Sears v. Shafer, 1 Barb. 408, 6 N. Y. 272; Ellis v. Messervie, 11 Paige, 467; Evans v. Ellis, 5 Denio, 640. Threats to one party by a stranger to the contract (e. g., the husband of that party), without the knowledge of the party, will not avoid the contract. Fairbanks v. Snow, 5 New Eng. Rep. 160, 145 Mass. 153; Gardner v. Case, 10 West. Rep. 800, 111 Ind. 494. Duress cannot be set up by a stranger. Oak v. Dustin, 3 New Eng. Rep. 614, 79 Me. 23. The surety on a bail bond cannot offer as a defense Where both parties to a settlement compounding the fact that the principal was compelled by duresɛ a felony stand on an equality,they are in pari delicto, ❘ to give the bond. lbid. The question whether the appellee, on the case made by him, is entitled to any relief as against the latter mortgage and notes, is not free from difficulty. His case in effect is, that his son had forged a mortgage, on the faith of which he had obtained money from the appellant. That appellant desired to obtain security for that money and appellee desired to suppress the criminal prosecution of the son. That appellant proposed to appellee, that if he would execute the mortgage and notes tendered, appellant would not prosecute his son. That the proposition was accepted and the papers executed and received accordingly. That the son was prosecuted through other agencies and the appellee at no time sought to withdraw from the compact or to recover the securities given in pursuance of it, until the sale was advertised, -an interval of over two years,-and never released the appellant from his promise except as it may be implied by bringing this suit. Upon this state of case, can the appeliant invoke equitable relief? The allegation of duress is not sustained. It seems to be conceded that the son was guilty of a felony and the appellant threatened only to prosecute him for his crime unless the amount obtained was secured. It was not a threat to prosecute on a simulated charge in order to extort money. Marvin v. Marvin (Ark.) 12 S. W. Rep. 875. public policy is considered as advanced by allowing the parties or the less culpable one to sue for relief; but it is not material to consider the exceptions now, for cases like this have been considered to fall within the general rule. In the case of Atwood v. Fisk, 101 Mass. 363, Atwood sued to compel the surrender and cancellation of the notes, and a mortgage given to secure them, on the ground that they were given upon the consideration that the defendant would not prosecute him for a felony. The bill was dismissed because the plaintiff was not in a position to claim the equitable relief prayed for. Compton v. Bunker Hill Bank, 96 Ill. 301, is a case in which a wife sought to cancel a conveyance executed by her to the defendant in consideration of its promise not to prosecute her husband for embezzlement; the court reviewed the authorities and concluded that the bill should be dismissed, saying: "But though the deed may be void for such reason, equity does not relieve the party who executed it upon or for such illegal and immoral consideration and purpose." We might add many citations to the same effect: Allison v. Hess, 28 Iowa, 389; Worcester v. Eaton, 11 Mass. 377; Smith v. Rowley, 66 Barb.503; Swartzer v. Gillett, 1 Chand. (Wis.)207. Nor can he derive benefit from the rule, that a party to an executory, illegal contract may rescind it while it is executory and unperformed, and recover back money paid under it. The contract was to give notes and mortgage in consideration of a promise not to prosecute for a felony. When the papers were delivered and the promise given, there was nothing more to be done by either party, and the contract was fully executed. It is a practical principle that guides equity courts in their administration of justice that he who invokes their aid must come with clean hands that he who hath committed iniquity shall not have equity. It is the policy of the law that crime shall be prosecuted, and it prohibits, under severe penalties, the suppression of prosecution. An injured party, who agrees with the felon who robs him that he will not It was held in Atwood v. Fisk, supra, that prosecute him on condition that he return the the delivery of securities was the same in effect stolen goods, or who takes a reward on such as the payment of money. But conceding that condition, violates the spirit as well as the let-there was a time when the appellee might have ter of the law. The party who gives a reward withdrawn from his illegal compact, removed and the party who receives it, on such condi- the obstacle he had placed in the way of justice tion, stand in pari delicto. and recovered the securities, he never sought to do it, until the illegal purpose failed from other causes, and his agreement no longer thwarted justice. Both parties, following impulses of their own, willfully contracted to violate the law. The law will lend no aid to either of them but leave them where they have placed themselves. Mr. Story, treating the subject as to the rights of parties to such an agreement, states the law as it is generally approved: "The general rule is that, where an illegal contract has been made, neither courts of law nor of equity will interfere to grant any relief to the parties, but will leave them where they find them, if they have been equally cognizant of the illegality." 2 Story, Cont. § 486; 2 Parsons, Cont. 746; 2 Addison, Cont. pp. 715, 724; 1 Pom. Eq. Jur. § 402. There are some exceptions to the rule where the contract is malum prohibitum, as also where v. The judgment will be reversed, and a judgment rendered here canceling the mortgage of March 15, 1886, and enjoining any sale under it; but no relief will be given as against the second mortgage. NEW YORK COURT OF APPEALS. 8. Skiddy COCHRAN et al., Respts., Franz O. MATTHIESSEN et al., Exrs., etc., of William A. Wiechers, Deceased, Impleaded with the American Opera Co., Limited, et al., Appts. (... N. Y.....) A stockholder's liability to creditors of the corporation because of the failure to make 7 L. R. A. and record a certificate of the payment of all the capital stock as required by the Act of 1875, is not penal and survives his death. (February 25, 1890.) APPEAL by the executors of William A. Wiechers, deceased, from an order of the General Term of the Supreme Court, First Department, reversing an order of the New York Special Term denying a motion to re- | American Opera Company, Limited, a domesvive against such executors an action to en- tic corporation formed under chapter 611 of the force the liability of said Wiechers, as a stock-Laws of 1875, for the incorporation of business holder of the defendant corporation, for cor- corporations with limited liability. The capiporate debts. Affirmed. The facts are sufficiently stated in the ion. Mr. Henry Schmitt, with Messrs. Abbett & Fuller, for appellants: | tal stock of the company was fixed at $500,000, opin-only $148,000 of which was ever paid in, and no certificate that the capital stock had been paid in has ever been made or recorded, as prescribed by the Statute under which the company was incorporated. The plaintiffs' action is in the nature of a creditors' suit to settle the affairs of the American Opera Company, Limited, and to distribute its assets, as well as the proceeds of the stockholders' individual liability, among the company's creditors. Pfuhl v. Simpson, 74 N. Y. 137. Wiechers' only liability is under § 37, chap. 511, Laws 1875, and an action to enforce it is a penal action and does not survive. An action against the trustees of a corpora tion for failure to file a report, as required by the Statute, is penal in its character and does not survive against the executors of a deceased trustee. California Bank v. Collins, 5 Iun, 209: Easterly v. Barber, 65 N. Y. 252; Reynolds v. Mason, 54 How. Pr. 213, affirmed, 6 N. Y. Week. Dig. 531; Stokes v. Stickney, 96 N. Y. 323. In cases where an action does not survive by express statute the survivorship of actions is confined to actions ex contractu, express or implied. People v. Starkweather, 8 Jones & 8. 460. So far as the executors of a deceased stock holder who had paid in the full amount of his subscription are concerned, the action in any event is in the nature of a penalty, and does not survive. Irvine v. McKeon, 23 Cal. 472; Erickson v. Nesmith, 4 Allen, 233; Halsey v. McLean, 12 Allen, 442; Andrews v. Callender, 13 Pick. 490; Ripley v Sampson, 10 Pick. 372; Dane v. Dane Mfg. Co. 14 Gray, 488; Woodruff & B. Iron Works v. Chittenden, 4 Bosw. 406; Vin cent v. Sands, 42 How. Pr. 235; Gregory v. German Bank, 3 Colo. 332; Victory Webb Print ing & F. Mach. Mfg. Co. v. Beecher, 26 Hun, 52. Mr. Henry D. Hotchkiss, for respondents: The complaint alleges the incorporation of the company; the amount of its capital stock; the amount paid in, as above stated; and the fact that no certificate of the company had Been made or filed as required by the Statute. Numerous persons have been joined as defendants with the opera company, as to whom it is alleged that they are either creditors or stockholders of the company, and among these William A. Wiechers was named as a defendant as to whom it was claimed that he was a stockholder holding twenty-five shares of the stock of the company. It is also alleged in the complaint that several of the parties defendant who were stockholders were indebted to the company for their stock. This allegation is general, and the particular persons claimed to be so indebted are not named. Wiechers was served with the complaint, and appeared and answered. On or about December 14, 1888, he died, leaving a last will and testament wherein he appointed executors. The will has been admitted to probate by the surrogate of New York County, and letters testamentary issued to the executors, who have qualified and taken upon themselves the execution of the will. After the death of Wiechers the plaintiffs applied to the special term to revive and continue the action against the executors, and the special The individual liability of the stockholder is an essential element in the contract by which the stockholders become members of the cor-term denied the motion, upon the ground that poration. The liability arises from the fact that the individual is a member of the body corporate, and as such is responsible for the debt. Chase v. Lord, 77 N. Y. 33; Corning v. McCullough, 1 N. Y. 47; Story v. Furman, 25 N. Y. 214; Lowry v. Inman, 46 N. Y. 119; Wiles 7. Suydam, 64 N. Y. 173. Everyone who becomes a member of the company by subscribing to its stock assumes this ability, which continues until the capital stock is all paid up and a certificate of that fact is made, published and recorded. The fact that the liability ceases when these events take place does not change its nature and make that a penalty which would, without such limitation, be a liability founded on contract. Flash v. Conn, 109 U. S. 871 (27 L. ed. 966). A cause of action to enforce such liability survives the death of the stockholder. Bailey v. Hollister, 26 N. Y. 112; Chase v. Lord, 77 N. Y. 1, 6 Abb. N. C. 258; Richmond v. Irons, 121 U. S. 27 (30 L. ed. 864). O'Brien, J., delivered the opinion of the court: The plaintiffs are judgment creditors of the the cause of action stated in the complaint against the deceased was of a penal character, and did not survive. Upon appeal to the general term from this order, it was reversed, and the court directed that the action be revived and continued against the executors of Wiechers, and that the plaintiffs have leave to serve a supplemental summons and complaint on the executors. From the order of reversal the executors have appealed to this court. The cause of action stated in the complaint against the stockholders is twofold: first, it is alleged that many of them are indebted to the company for their capital stock; and, second, that as the capital stock was never fully paid in, and no certificate thereof ever made or filed, the defendants who were stockholders are liable for its debts to the extent of their stock. The question is whether a liability of this character on the part of a stockholder to the creditors of a corporation survives. If the liability is penal in its nature, it is conceded that it does not survive; while if the liability is in the nat ure of a contract obligation it is conceded that it does. The provision of the Statute of 1875 (chap. 611, § 37), upon which this action is based, so far as the stockholders are concerned, is as fol- | lows: "In limited-liability companies all the stockholders shall be severally individually liable to the creditors of the company in which they are stockholders to an amount equal to the amount of stock held by them, respectively, for all debts and contracts made by such company, until the whole amount of capital stock fixed and limited by such company has been paid in, and a certificate thereof has been made and recorded as hereinafter prescribed." We think the liability created by this Statute survived the death of the stockholder, and continues against the executors. It is not like the liability of a trustee for neglecting to make a report, or for declaring dividends out of capital stock, or acts of a kindred character. These are breaches of duty on the part of the managing agents of the corporation for which the Statute has made them liable, and this liability cannot be said to rest upon or grow out of a contract. The liability of a stockholder in the present case is different. Upon becoming the owner of the stock, he voluntarily assumes the obligations imposed by the Statute, and the creditors of the corporation who trust it may be said to do so upon the faith of the Statute, which is part of the contract. The statutory obligation is inherent in and forms a part of every contract that the corporation makes with creditors prior to the time that the certificate required by the Statute is filed. In Lowry v. luman, 46 N. Y. 119, Allen, J., stated the principle (pages 125, 126) as follows: "A personal liability of stockholders for the debts of a corporation, in virtue of the charter, is not in the nature of a penalty or forfeiture, and does not exist solely as a liability imposed by statute. It is not enforced simply as a statutory obligation, but is regarded as voluntarily assumed by the act of becoming a stockholder. By such act he assents to be bound, or that his property shall be charged with debts of the corporation, to the extent and in the manner prescribed by the Act of Incorporation." In Wiles v. Suydam, 64 N. Y. 173, it was sought to hold the defendant as a stockholder | in a manufacturing company on his liability under § 10 of the Act of 1848, chap. 40,-a section which, in substance, is almost identical with the one now under consideration; and also as a trustee on his liability for all the debts, because of a failure to file a report. A demurrer on the ground of the improper joinder of causes of action was sustained. The court, distinguishing between the two kinds of liability, said (Church, Ch. J.): "The cause of action against the defendant as a stockholder consists of the debt, and the liability created by statute against stockholders when the stock has not been paid in, and a certificate of that fact recorded. The first cause of action against the defendant as a stockholder is an action on contract. The six-years' Statute of Limitations applies. The defendant is entitled to contribution.' The liability of Wiechers, therefore, being in the nature of a contract obligation, it survived his death, and the action can be continued against his personal representatives. holder in any corporation dies, bis estate succeeds him in the title to, and the rights in, the stock he held. Of necessity, it must take that title and those rights subject to any liability then existing upon them; and so long as the estate is, by operation of law, the holder of such stock, the estate must become responsible for any obligations accruing during that time, which the law may impose upon any holder of the stock, as such. Such liability proceeds, not from any new contract, made by or on behalf of the estate, but is inherent in the property itself; . . . or, calling it a 'contract liability,' it arises out of a contract made by the stockholder, and binding his personal representa tives as it bound him, as long as the relation of stockholder existed." The liability of the estate of the deceased stockholder under the Statute is so well established upon principle and authority that further discussion is unnecessary. Chase v. Lord, 77 N. Y. 1; Flash v. Conn. 109 U. S. 371 [27 L. ed. 966]; Richmond v. Irons, 121 U. S. 27 [30 L. ed. 804]. The order of the Special Term denying the motion to revive and continue the action against the executors was properly reversed by the General Term, and its order of reversal should be affirmed, with costs. All concur. APPEAL by plaintiff from a judgment of the General Term of the Supreme Court, Fourth Department, affirming a judgment entered in Jefferson County upon the report of a referee dismissing the complaint in an action brought to secure the partition of certain real estate. Affirmed. Plaintiff claimed to have acquired from the heirs at-law of Susannah Wilder, deceased, the title to a portion of the real estate of which she died seised, she having died intestate. He brought this action to procure the partition of such real estate among those entitled to the several portions thereof. George Wilder filed a separate answer to the complaint denying that plaintiff had any interest in the property, and denying that Susannah Wilder died seised of the portion thereof claimed by plaintiff, but NOTE.-Deed; delivery. See notes to Taylor v In Bailey v. Hollister, 26 N. Y. 112, the court Street (Ga.) 5 L. R. A. 121; Stokes v. Anderson (Ind.) expressly recognized this principle. Gould, J.,4 L. R. A. 313; Standiford v. Standiford (Mo.) 3 L. R. said: "It will be conceded that, when a stock- A. 299. alleging that before her death she had conveyed the premises to him, the said defendant, in fee. Andrews, J., delivered the opinion of the court: The finding of the referee that Susannah Wilder executed and delivered to the defendant the deed of June 20, 1855, is supported by evidence and has been confirmed by the general term. The execution of the deed by the grantor was proved by two witnesses who were present at the time, and no attempt was made The case further appears in the opinion. Mr. Wayland F. Ford, for appellant: If not duly acknowledged previous to its delivery, the execution and delivery of a deed must be attested by at least one witness; or if not so attested, it shall not take effect as against a purchaser or incumbrancer until so acknowl-on the trial to show that the signature to the edged. 3 Rev. Stat. 7th ed. p. 2194; Chamberlain v. Spragur, 86 N. Y. 605, 22 Hun, 437; Roggen v. Avery, 63 Barb. 65, affirmed, 65 N. Y. 592. There is no presumption of delivery in the case of instruments not acknowledged or attested as required by statute. Genter v. Morrison, 31 Barb. 158; Elsey v. Metcalf, 1 Denio, 323. The term "purchaser" includes a purchaser from an assignee, heir or anyone in privity with the grantor. 4 Rev. Stat. 8th ed. p. 2469. The Statute is made to protect the grantor (Chamberlain v. Spragur, 85 N. Y. 608); and the heirs need the protection as effectually as the grantor. The evidence will not warrant the finding of any delivery of the instrument by Susannah Wilder to George Wilder. A deed does not become operative until it is delivered with the intent that it shall become effective as a conveyance. Ford v. James, 2 Abb. App. Dec. 159; Best v. Brown, 25 Hun, 224; Brackett v. Barney, 28 N. Y. 340; Knolls v. Barnhart, 71 N. Y. 474; Stewart v. Stewart, 50 Wis. 445; Genter v. Morrison, 31 Barb. 158; Elsey v. Metcalf, 1 Denio, 323; Wilsey v. Dennis, 44 Barb. 354; Hilberd v. Smith, 67 Cal. 547: Jackson v. Roberts, 1 Wend. 478; Fitzgerald v. Goff, 99 Ind. 28; Stillwell v. Hubbard, 20 Wend. 47; Graves ▼. Dudley, 20 N. Y. 76. Mr. Watson M. Rogers, for respondent: The deed, though unacknowledged, was good and effectual to pass itle as between the parties to it. Wood v. Chapin, 13 N. Y. 509–514. The deed being good as against the grantor, her heir took nothing, and had nothing to con vey. Possession by the grantee under the grantor's imperfect deed is adverse to the grantor. La Frombois v. Jackson, 8 Cow. 589; Briggs v. Prosser, 14 Wend. 227; Hoopes v. Auburn Water-Works Co. 37 Hun, 568-573; Abrams v. Rhoner, 44 Hun, 507-510; Sands v. Hughes, 53 N. Y. 287-296; Reformed Church v. Schoolcraft, 65 N. Y. 134-144; Bradstreet v. Clark, 12 Wend. 603-675; Jackson v. Newton, 18 Johns, 355-362. Every grant of land shall be absolutely void, if at the time of the delivery thereof such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor. 4 Rev. Stat. 8th ed. p. 2453; Jackson v. Newton and Reformed Church v. Schoolcraft, supra; Hilton v. Bender, 4 Thomp. & C. 270; La Frombois v. Jackson, supra; Clapp v. Bromagham, 9 Cow. 530; Bogardus v. Trinity Church, 4 Sandf. Ch. 739; Sands v. Hughes, supra; Munro v. Merchant, 28 N Y. 9. Pearce v. Moore, 114 N. Y. 256. deed was not genuine. The fact of delivery was not directly proved by an eye witness. But the defendant produced the deed, and the possession of a deed by the grantee is prima facie evidence of delivery, where there is nothing to impeach the bona fides of his possession. The other circumstances proved on the part of the defendant confirm the presumption of delivery arising from possession of the deed. It was shown that it was drawn by a scrivener, pursuant to the directions of the grantor. The sister of the defendant testified to declarations of her mother, the grantor, to the effect that she intended that the son should have the lot in question. She also testified that from the time of the execution of the deed until the mother's death, several years thereafter, the deed was in the custody of the defendant and was kept by him in a box with his other papers. The defendant's wife was permitted, without objection, to testify to the same fact. The defendant rented the house, paid taxes and made repairs on the premises, and during his mother's life, after the deed had been executed, exercised such control of the property as usually attends ownership. If the evidence on the part of the plaintiff can be regarded as casting any doubt upon the point whether there was an absolute delivery of the deed, with intent to pass the title to the property, we are concluded by the finding in favor of the defendant. The plaintiff claims title to an undivided part of the premises in question under deeds from some of the heirs of Susannah Wilder, who died intestate July 15, 1868, executed after her death. The deed from Susannah Wilder to the defendant was neither acknowledged by her nor was its execution attested by a subscribing witness. The plaintiff insists that for this reason the deed was void as to the plaintiff under the Statute (1 Rev. Stat. 738, § 137), which declares that an unacknowledged and unattested deed "shall not take effect as against a purchaser or incumbrancer until so acknowledged." The conclusive answer to this claim is that the plaintiff is not a purchaser within the meaning of the Statute. The word "purchaser" in this Statute means one who derives title by purchase from the grantor in the unacknowledged and unattested deed, or from one who, himself, is mediately or immediately a purchaser from such grantor. The word "purchase," as designating the origin and nature of title to real property, has a technical but well settled meaning. It includes every mode of acquisition of an estate in land known to the law, except that by which an heir on the death of his ancestor becomes substituted in his place as owner by operation of law. Burrill, Dict. title Purchase. The beir who takes by descent is not a purchaser in the eye of the law, and does not hold the estate descended by purchase. He may |