Hogan et al. v. Ross. a supersedeas, and the party who obtained the judgment in the District Court was undoubtedly at liberty to enforce it by execution, unless he is stayed by the second writ of error now pending. And the question presented by this motion is wheth er this writ is also a supersedeas. We think it is not. The act of 1789, ch. 20, § 23, in express terms declares that a writ of error shall be a supersedeas in those cases only where the writ is served by a copy thereof being lodged for the adverse party in the clerk's office where the record remains, within ten days, Sundays exclusive, after rendering the judgment. The writ before us was not issued or lodged in the clerk's office for nearly two years after the judgment in the District Court. It cannot, therefore, operate as a supersedeas. The cases relied on in support of the motion stand on different grounds. In Stockton and Moore v. Bishop, 2 Howard, 74, the bond was given and the writ of error filed and the citation issued within ten days after the judgment. The act of Congress, therefore, made it a supersedeas. And when the court in that case say that these proceedings were in due season, they are speaking of the time of filing them, by which they become a supersedeas by the act of Congress; and not of the time within which a writ of error may be brought to correct the errors in the judgment. In the case of Hardeman v. Anderson, 4 Howard, 640, the original judgment, it is true, was rendered in 1839. But upon referring to the record, it appears that a controversy arose in the proceedings on the execution, which were continued from time to time until May 20th, 1844. On that day a judgment, or an order that was regarded as a judgment, was entered, to which an exception was taken; and it was upon this judgment or order that the first writ of error was sued out. The bond, writ, and citation were all within ten days from this last judg And the case was docketed and dismissed at the succeeding term (December, 1844), not on account of any irregu larity or omission in these proceedings, but because the record had not been filed in this court. ment. In May, 1845, after this writ had been dismissed, the plaintiff sued out another writ of error, and gave bond, and regularly cited the defendant in error to appear; and filed the record and docketed the case at the beginning of December term, 1845, And the court being satisfied from the testimony offered that the omission to file the record at the preceding term arose from the neglect of the clerk of the District Court, and that the plaintiff was in no fault, it undoubtedly had the power to reinstate the case; and when reinstated it would stand in this court upon the first writ of error, and not upon the second. Van Rensselaer v. Kearney et al. The proceedings in relation to that writ were in due time, and when docketed in this court it stayed execution, by force of the act of Congress, while the case was here pending. And it was in this view of the case, that the court deemed it their duty to enforce the stay by awarding a supersedeas. It was upon this ground that the writ was issued, and not under the removal by the second writ of error; nor was it issued under the fourteenth section of the act of 1789, as would seem to have been the case, from some mistake or oversight in framing the orders and entries. For the court is unanimously of opinion, that, in the exercise of their appellate power, they are not authorized to award a supersedeas to stay proceedings on the judgment of the inferior court, upon the ground that a writ of error is pending, unless the writ was sued out within ten days after the judgment, and in conformity with the provisions of the twenty-third section of the act of 1789. And if the case of Hardeman v. Anderson had been considered as pending here by force of the second writ of error, no supersedeas could lawfully have been issued. The case now before us was not brought up by the first writ for want of the citation. There is no ground, therefore, for reinstating the case in this court upon that writ. And the second writ, by which alone it has been brought here, and by virtue of which it is now pending, was not sued out in time to operate as a supersedeas; and this court have not the power to award one. The motion must, therefore, be overruled. Order. On consideration of the motion made by Mr. Featherston for a writ of supersedeas in this cause, and the arguments of counsel thereupon had, as well against as in support thereof, it is now here ordered by the court, that the said motion be, and the same is hereby, overruled. JEREMIAH VAN RENSSELAER, APPELLANT, v. PHILIP KEARNEY AND FREDERIC DE PEYSTER, TRUSTEES AND EXECUTORS OF JOHN WATTS, DECEASED, CATHERINE G. VISSCHER, CORNELIUS G. VAN RENSSELaer, and GLEN VAN RENSSELAER, DEFENDants. In 1786 the legislature of New York passed a law declaring that "all estates tail shall be, and hereby are, abolished"; and if any person should thereafter become seized in fee tail of any lands, tenements, or hereditaments by virtue of any devise, &c., he should be deemed to have become seized in fee simple absolute. Van Rensselaer v. Kearney et al. This included an estate tail in remainder, as well as one in possession. The courts in New York have so decided, and this court adopts their construction. The remainder-man dying during the lifetime of the life tenant, the latter, being the father, inherited from the son a fee simple absolute. Whilst the remainder-man was yet alive, the life tenant sold the property and conveyed it to the vendee by a deed which, according to its true construction, affirmed the existence of an estate in fee simple in itself. The reasons for this construction stated. Those claiming under him are estopped by this deed. The doctrine of estoppel explained. THIS was an appeal from the Circuit Court of the United States for the Southern District of New York, sitting as a court of equity. It was a bill filed by the appellant, Jeremiah Van Rensselaer, against John Watts originally, and continued against his trustees and executors, praying for an account of the rents of certain property, and for the surrender of the leases, title-deeds, &c. In order to see at a glance the derivation of the title, the following table is referred to: Van Rensselaer v. Kearney et al. On the 25th of May, 1782, John Van Rensselaer was seized of a large body of land, about thirty-four thousand acres, a part of which had been leased on permanent ground rents, and a part leased for life or for years. The residue was owned by him in fee simple. On that day he made and published his last will and testament, by which he devised Claverack Manor to trustees during the life of John J. Van Rensselaer, his grandson, with the intent to create an estate tail, the rents and profits to the use of John J. Van Rensselaer during his lifetime and the remainder over to the issue male of the said John, and in case of failure of such issue, then to the issue male of the other sons of the testator. Provision was then made for raising portions for female issue. On the 12th of July, 1782, a law was passed in New York abolishing entails, and on the 29th of July, 1782, the testator added a codicil to his will, alluding to the law. In 1783 the testator died, and John J. Van Rensselaer, the devisee, entered into possession of the estate. On the 23d of February, 1786, the legislature of New York passed an act (3 R. S. N. Y., 1st ed., App. 48; 1 R. L. 1813, p. 52), declaring "That all estates tail shall be, and hereby are, abolished; and that, in all cases where any person or persons now is, or, if the act hereinafter mentioned [referring to the act passed on 12th July, 1782] had not been passed, would now be, seized in fee tail of any lands, tenements, or hereditaments, such person and persons shall be deemed to be seized of the same in fee simple absolute; and further, that in all cases where any person or persons would, if the said act and this present act had not been passed, at any time hereafter become seized in fee tail of any lands, tenements, or hereditaments, by virtue of any devise, gift, grant, or other conveyance heretofore made or hereafter to be made, or by any other means whatso. ever, such person or persons, instead of becoming seized thereof in fee tail, shall be deemed and adjudged to become seized thereof in fee simple absolute." In 1791 John was born, who was the first-born son of the devisee. It may as well be mentioned here, that he died in 1813, leaving his father surviving him. After John there were born other children, viz. Jeremiah, who was the complainant below and appellant here, Catherine, who intermarried with one Visscher, Glen, and Cornelius. In 1794, the condition of the estate was this. Much the larger proportion of it was held under leases, which had been made to different persons at different times, and the residue was held by. John J. Van Rensselaer. The leases were, some of them, executed by Hendrick Van Rensselaer and John Van Van Rensselaer v. Kearney et al. Rensselaer, the ancestors of the said John J.; and some executed by John J. Van Rensselaer himself. These leases for the most part created perpetual ground rents, and those which did not create perpetual ground rents were for the lives of the lessees. Two mortgages upon the property had also been given by John J. Van Rensselaer to Philip Schuyler, for three thousand one hundred pounds each. This being the state of the property in 1794, John J. Van Rensselaer entered into an agreement with Daniel Penfield, on the 4th of November of that year. As these articles were much discussed in the argument, it is proper to make extracts from them as to those points which were the subject of discussion. "Articles of agreement had, made, entered into, and finally concluded upon this fourth day of November, in the year of our Lord one thousand seven hundred and ninety-four, by and between John J. Van Rensselaer of Greenbush, in the county of Rensselaer, of the one part, and Daniel Penfield of the city of New York, of the other part, witnesseth: Imprimis, the said John J. Van Rensselaer, for himself, his heirs, executors, and administrators, doth covenant, grant, and agree, to and with the said Daniel Penfield, his heirs, executors, and administrators, that he, the said John J. Van Rensselaer, together with Catherine, his wife, shall and will, within the term of three months from the date hereof, by a good and sufficient deed and conveyance in the law, such as by the counsel of the said Daniel Penfield, his heirs or assigns, shall be reasonably advised, devised, or required, and that free and clear, and freely acquitted and discharged of and from all encumbrances and charges, other than leases heretofore given by the said John J. Van Rensselaer and his ancestors, assign, release, convey, assure, bargain, sell, grant, and confirm unto the said Daniel Penfield, his heirs and assigns for ever, all the right, title, interest, property, claim, and demand, either in possession, reversion, or remainder, of him, the said John J. Van Rensselaer and Catherine, his wife, of, in, or to all that tract and parcel of land situate, lying, and being in the town of Claverack, and city of Hudson, and county of Columbia, and included within the boundaries following, to wit, that is to say: Beginning," &c., (going on to describe the land,)" together with all and singular the waters, watercourses, and streams of water, profits, advantages, hereditaments, and appurtenances whatsoever thereunto appertaining and belonging, or which have been consideted and used, or now are used and occupied, as part and parcel thereof, in as full and ample a manner as the said John J. Van Rensselaer now hath and enjoyeth the same, and in as |