against his will or without his consent, is a proposition which the court are not prepared to admit. [101] 4*] HIS was *THIS a writ of error to the Circuit Court of the United States for the Southern District of New York. In the Circuit Court for the Southern District of New York an action of ejectment was instituted by the defendant in error for the recovery of a tract of land in the town of Carmel, in the County of Putnam, in the State of New York. The plaintiff claimed title on the demise of John Jacob Astor and others, named in the case. The action was tried by a jury at October Term, 1829, in the Circuit Court in the city of New York, and a verdict and judgment rendered for the plaintiff in the same; a bill of exceptions was tendered by the defendant in the Circuit Court, who prosecuted this writ of error. After judgment was rendered for the plaintiff in the Circuit Court, he prayed the court to order a writ of possession, to cause him to have possession of the premises, and thereupon James Carver suggested to the court that Roger Morris and Mary Morris, his wife, under whom the plaintiff in ejectment claimed, were for fifteen years and upwards next before the 22d of October, 1779, in possession of a large tract of land in the then County of Dutchess, in the State of New York, including the premises. That on the 22d of October, 1779, the Legislature of the State of New York, by an Act for the forfeiture and sale of the estate of per sons who have adhered to the enemies of the State," &c., declared Roger Morris and his wife to be convicted and attainted of adhering to the enemy; and all their estate, real and personal, severally and respectively, in possession, rever 66 its existence or validity. Ritter v. Phillips, 53 N. Y., 586; Haile v. Nichols, 16 Hun, 37; Thayer v. Marsh, 11 Hun, 501; affirmed 19 Alb. L. J., 56; Johnson v. Parmelee, 14 Hun, 398. A recital in a deed is not evidence against one, not privy in estate. Whyland v. Weaver, 67 Barb., 116. sion, or remainder, was forfeited and vested in the people of the State. That commissioners appointed under this act, on the 16th of November, 1782, sold, disposed of and conveyed the land in question in this suit, to Timothy Carver, his heirs and assigns, for the consideration of seventy-one pounds. That by an Act of the Legislature of the 12th of May, 1784, and an Act of the 1st of May, 1786, it was among other things provided, that where judg ment in a due course of law should be obtained for any lands sold by the commissioners of forfeitures, against any person who derived title thereto under the people of the State, or the commissioners, the person who ob- [*5 tained judgment should not have a writ of possession, or obtain possession of the land, until he or she should have paid to the person in possession under said title, the value of all improvements made thereon, to be estimated as provided in the acts. That he, the said Timothy Carver, purchased the property held by him in the full confidence that he obtained a perfect indefeasible title to the land in feesimple, entered forthwith into possession of the same, made great, valuable and permanent improvements on the land, which are now in value upwards of two thousand dollars, by which the lands are enhanced in value to that sum and upwards. That Timothy Carver afterwards conveyed the premises to James Carver, the defendant in ejectment, who also made other valuable improvements on the land before the commencement of this suit, of the value of two thousand dollars and upwards. That this action has been commenced and prosecuted, and a recovery has been had on a ground of title, reciting the same; that the Act of the Legislature of New York, passed the Where one deed recites another, no higher or other proof is necessary or required of the recited deed, than the recital itself, though the recited deed und the subscribing witness be both in court. This has been expressly held, not only by the Supreme Court of the United States, but by several of the State courts, not only as against the party reciting, A, by his last will devised as follows: "Whereas but against all who claim under him as privies in I have conveyed to my son D, my lands at F, I give blood, privies in estate, or privies in law. Carver v. and devise all my remaining lands to my sons C Jackson, supra; Crane v. Morris, 6 Pet., 598; West and D and my daughter." Held, that the recital in v. Pine, 4 Wash. C. C., 691; Jackson v. Halstead, 5 the will was evidence of a conveyance of the lands Cow., 216; Penrose v. Griffith, 4 Binn., 231; Per Mills, at F to D and that C as heir of the testator, was es- J., in Mitchell v. Maupin, 3 Mon., 186; Bibb v. Picktopped by the recital, to deny that the lands at Fet, Litt. Sel. Cas., 309, 312, 313; Kentucky Bank v. were conveyed to D. Denn v. Cornell, 3 Johns. Cas., Vance, 4 Litt. R., 172. 174. And such recital contained in a bond is evidence A party executing a deed is estopped by the re-equally high, even against the obligee, and all cital of a particular fact in that deed to deny such claiming under him. Jackson v. Carrington, 9 Cow., fact. 7 Bac. Abr., 621; Nash v. Turner, 1 Esp., 217; 86. Rees v. Lloyd, Wightwick, 123; Jones v. Williams, 2 But in such cases the bond must be traced to the Stark., 52: Bowman v. Taylor, 2 Ad. & Ell., 278; Lar-possession of the obligee. Jackson v. Brooks, 8 rison v. Tremere, 1 Ad. & Ell., 792; Hill v. Manches- Wend., 426. ter & Co., 2 B. & Adol., 244. So where a party to a written agreement recites therein, as consideration, that the other party has made a certain conveyance, of even date with the agreement, he is estopped to show, in avoidance of the contract, that such conveyance was not made until afterwards, though dated subsequently. Dyer v. Rich, 1 Met., 180. Where a grantor in a deed of warranty recites that a certain tract of land has been conveyed to him, he is estopped from denying that fact in a suit commenced against him by the grantee, or any person to whom his grantee has conveyed. Green v. Clark, 13 Verm., 158. A recital in a deed procured by fraud can never be used as an estoppel. Norton v. Sanders, 7 J. J. Marsh.. 12. Nor, it seems, a recital in a deed which is defective and void. Blake v. Tucker, 12 Verm., 39; see Norris v. Norris, 9 Dana, 17. And this class of recitals is received as primary proof of other instruments, even of records; a ca. sa. for instance. Ransom v. Keyes, 9 Cow., 138; Burleigh v. Stibbs, 5 Term R., 465; Edwards v. Etherington, Ry. & Mood. N. P. R., 268. If the condition of an obligation hath reference to a particular thing to be done, or in which a generalty is to be done, the obligor shall be estopped by it to say that there is no such particular thing. Roll. Abr., 872, 873; 7 Bac. Abr., 621; Dyer, 3; Savil, 90; Moor, 23; Paramour v. During, Moor, 420, pl. 578; Godb., 177. But if the condition of an obligation contains a generalty, a man shall not be concluded to say, that there is no such thing; as in debt on an obligation, of which the condition is to perform all agreements now set down by J. S., the defendant may say, that no agreement was then set down by J. S., because this comprehends a generalty. For this diversity, see Cro. Eliz., 362; Owen, 110; 22d of October, 1779, for the forfeiture of estates, &c., did not take from the plaintiff in the suit the title to the premises after the death of Roger Morris and wife, both of whom were deceased at the time of the institution of this suit. So that the plaintiffs were the owners of the land in fee, and entitled to recover the possession of the same. And the defendant insists that, under the provisions of the several Acts of the Legislature of New York, he ought to be paid the value of the improvements made on the lands; that no writ of possession should issue until the same was paid, and he prays the court to stay the plaintiff from the writ, or from having possession of the lands, until the value shall be paid, and that commissioners may be appointed to ascertain the said value. The plaintiff did not deny the facts alleged by the defendant, but he denied the right of the defendant to be paid for the improvements, and insisted on his right at law to a writ of possession, and to the possession of the land without paying the value of the improvements. The court held that the matter suggested by the defendant and admitted by the plaintiff were not sufficient to bar or stay the plaintiff 6*] from having his writ of possession, or possession of the land without paying the whole or any part of the value of the improvements estimated or valued in any way whatever; and that the plaintiff should have a writ of possession to cause him to have possession of the land. The bill of exceptions set forth the whole proceedings of the trial of the cause, and that an agreement had been entered into by the parties to it, that the plaintiff is not entitled to recovery of the property unless it should satisfactorily appear in the suit, in addition to whatever else may be necessary to authorize a recovery therein, that the whole title, both in Poph., 114; Moor, 405; Brownl., 117; Yelv., 226; 2 Bulst., 19; Latch, 125; Cro. J., 375; Dal., 28; Salter v. Kidney, 1 Show., 59; 7 Bac. Abr., 621; Strowd v. Willis, Cro. Eliz., 762; Shelby v. Wright, Willes, 9. Lord Holt lays down the rule in Salter v. Kidney (1 Show., 59), that general recital is not estoppel, though recital of a particular fact is. See Com. Dig. Div. Estoppel, A, 2; Rainsford v. Smith, Dyer, 196, a, note; 2 Smith's L. C.. 457; La Savage v. Prinan, 3 Mo., 529; Cow. & Hill's notes to Phil. Ev., 1235, 1236, 1237, 160, 161. Therefore, if one be bound in a bond, conditioned to perform the covenants in a certain indenture, or to pay the money mentioned in a certain recognizance, he shall not be permitted to say, that there was no such indenture or recognizance. But if the bond be conditioned to pay all the agreements set down by A, or carry away all the marle in a certain close, he is not estopped by this general condition from saying that no agreement was set down by A, or that there was no marle in the close. Neither does this doctrine apply to that which is mere description in the deed, and not an essential averment; such as the quantity of land; its nature, whether arable or meadow; the number of tons. in a vessel chartered by the ton; or the like; for these are but incidental and collateral to the principal thing, and may be supposed not to have received the deliberate attention of the parties. 1 Greenl. Ev., 32; 4 Com. Dig. Estoppel, A, 2:Yelv., 227, by Metcalf, note 1; Doddington's case, 2 Co., 33; Skipworth v. Greene, 8 Mod., 311; S. C., I Stra., 610. The recital of the payment of the consideration money in a deed of conveyance has been regarded, in England, as conclusive evidence of payment, binding the parties by estoppel. Shelley v. Wright, Willes, 9; Cossens v. Cossens, Willes, 25; Rowntree v. Jacob, 2 Taunt., 141; Lampan v. Clarke, 5 B. & Ald., C06; Baker v. Dewey, 1 B. & C., 704; Hill v. Manchester Salt-Works, 2 B. & Ad., 544. law or equity, which may or can have been vested in the children and heirs of Roger Morris and Mary his wife, of, in or to the premises or lands in question in the suit, has been, as between the grantors and grantees, legally transferred to John Jacob Astor, one of the lessors of the plaintiff, his heirs and assigns; nor unless a proper deed of conveyance in fee-simple from John Jacob Astor and all persons claiming under him to the people of the State of New York, would be valid and effectual to release, transfer, and extinguish all the right, title, and interest, which now is, or may have been vested in the children and heirs of Roger Morris and wife. The plaintiff in the ejectment gave in evidence a patent from William III. to Adolphe Philipse, dated 17th June, 1692, for a large tract of land, including the premises, and proved the descent of the same to Frederick Philipse; and that Mary Philipse, who afterwards intermarried with Roger Morris, was a devisee in tail with other children of Frederick Philipse, and by subsequent proceedings in partition, and by a common recovery, Mary Philipse became seized in fee-simple of one equal undivided part of the land granted by the patent; and that afterwards, on the 7th of February, 1754, a deed of partition reciting the patent and the title of the heirs, was executed between the children and devisees and heirs of Frederick Philipse, by which the portions sev erally belonging to them were set apart and divided to each in severalty, one portion being allotted to Mary Philipse; the land in controversy being included in the land surveyed *and held under the patent and deed of [*7 partition. The part allotted to Mary Philipse in the partition was No. 5. The plaintiff then offered to read in evidence a deed of marriage settlement, dated 13th of But in the American courts the recital of the amount of the consideration money paid has been treated like other recitals of quantity and value to which the attention of the parties has been supposed to have been but slightly directed, and to which, therefore, the principle of estoppels does not apply. Hence, though the party is estopped from denying the conveyance and that it was for a valuable consideration, the recital is regarded as only prima facie evidence of the amount paid, in an action by the grantee to recover back the consideration, or in an action by the grantor to recover the consideration money. Wilkinson v. Scott, 17 Mass., 249; Clapp v. Tirrell, 20 Pick., 247; Schillenger v. McCan, 6 Greenl., 364; Tyler v. Carleton, 7 Greenl., 175: Emmons v. Littlefield, 1 Shepl., 23; Burbank v. Gould, 3 Shepl., 118; Morse v. Shattuck, 4 N. H., 229; Pritchard v. Brown, 4 N. H., 397; Belden v. Seymour, 8 Conn., 304; Shepherd v. Little, 14 Johns., 110; Bowen v. Bell, 20 Johns., 388; Whitbeck v. Whitbeck, 9 Cow., 266: McCrea v. Purmont, 16 Wend., 460; Weigley v. Weir, 7 Serg. & R., 311; Watson v. Blaine, 12 Serg. & R., 131; Jack v. Dougherty, 3 Watts, 151; Higdon v. Thomas, 1 Harr. & G. 139; Lingan v. Henderson, 1 Bland's Ch. 236: Duval v. Bibb, 4 Hen. & M., 113; Harvey v. Alexander, I Randolph, 219; Curry v. Lyles, 2 Hill. So. Car, 404; Garret v. Stuart, 1 McCord, 514; Mead v. Steger, 5 Porter Ala.. 498, 507; Jones v. Ward, 10 Yerg, 160, 166; Hutchinson v. Sinclair, 7 Monroe Ky., 291. 293: Gully v. Grubbs, 1 J. J. Marsh., 39. But see Bracket V. Foscue, 1 Hawks, No. Car., 64; Spiers v. Clay, 4 Hawks, 22; Jones v. Sasser, 1 Dev. & Batt., 452. In Louisiana the recital of payment is made conclusive. Civil Code of La., Art. 2234; Forest v. Shores., 11 Louis., 416; see also Cow. & Hill's notes to 1 Phil. Ev., p. 108, note 194, and p. 549, note 964; Steele v. Worthington, 2 Ohio R., 350; 1 Greene Ev., ed. 1842, p. 32, sec. 26, and note 1. day of the date of these presents, and by force of the statute for transferring of uses into possession) and to their heirs, all those several lots or parcels of land, &c.," describing the property, in which is included the land in controversy in this suit. January, 1758, intended to convey all the land | them thereof made, for one whole year, by in No. 5 between Mary Philipse, of the first indenture bearing date the day next before the part. Roger Morris, of the second part, Joanna Philipse and Beverly Robinson, of the third part; on the back of which deed was indorsed a certificate in the following terms: "Be it remembered that on the 1st day of April, 1787, personally came and appeared before me John Sloss Hobart, one of the justices of the Supreme Court of the State of New York, William Livingston, Esq., Governor of the State of New Jersey, one of the subscribing witnesses to the within written indenture, who being by me duly sworn, did testify and declare that he was present at or about the day of the date of the within indenture, and did see the within named Joanna Philipse, Beverly Robinson, Roger Morris, and Mary Philipse, sign and seal the same indenture, and deliver it as their and each of their voluntary acts and deeds, for the uses and purposes therein mentioned, and I having carefully inspected the same, and finding no material erasures or interlineations therein, other than those noted to have been made before the execution thereof, do allow the same to be recorded. John Sloss Hobart." Upon the back of the deed was also indorsed a certificate of the recording thereof, in the following words: "Recorded in the secre-created between them, and to his, her, or their tary's office of the State of New York, in deed book commencing 25th November, 1774, page 550. Examined by me this 11th of April, 1787. Robert Harpur, D. Secretary." To which said evidence, so offered, the counsel for the defendant objected upon the ground that the certificate was not legal and competent evidence | to be given to the jury, and did not entitle the plaintiff to read the deed in evidence without proof of its execution; and that the certificate was not sufficient, inasmuch as it did not state that William Livingston testified or swore that he was a subscribing witness to the deed. The parts of the deed of 13th January, 1758, material to the case, are the following: This indenture, made the 13th day of Janu8*] ary, in the thirty-first year of the reign of our sovereign lord, George II., by the grace of God, of Great Britain, France, and Ireland, king, defender of the faith, &c., and in the year of our Lord, 1758, between Mary Philipse, of the first part, Major Roger Morris, of the second part, and Joanna Philipse and Beverly Robinson, of the third part, witnesseth, that in consideration of a marriage intended to be had and solemnized between the said Roger Morris and Mary Philipse, and the settlement hereafter made by the said Roger Morris on the said Mary Philipse, and for and in considera tion of the sum of five shillings, current money of the Province of New York, by the said Joanna Philipse and Beverly Robinson to her, the said Mary Philipse, at or before the ensealing and delivery of these presents, well and truly paid, the receipt whereof is hereby acknowledged; and for divers other good causes and considerations, her thereunto moving, she, the said Mary Philipse, hath granted, bargained, | sold, released and confirmed, and by these presents doth grant, bargain, sell, release and confirm, unto the said Joanna Philipse and Beverly Robinson (in their actual possession now being, by virtue of a bargain and sale to To have and to hold all and singular the several lots of land, &c., and all and singular other the lands, tenements, hereditaments, and real estate, whatsoever of her, the said Mary Philipse, &c., unto the said Joanna Philipse and Beverly Robinson, and their heirs, to and for the several uses, intents, and purposes, hereinafter declared, expressed, limited and appointed, and to and for no other use, intent and purpose whatsoever; that is to say, to and for the use and behoof of them, the said Joanna Philipse and Beverly Robinson, and their heirs, until the solemnization of the intended marriage, and to the use and behoof of the said Mary Philipse and Roger Morris, and the survivor of them, for and during the term [*9 of their natural lives, without impeachment of waste, and from and after the determination of that estate, then to the use and behoof of such child or children as shall or may be proheirs and assigns forever; but in case the said Roger Morris and Mary Philipse shall have no child or children begotten between them, or that such child or children shall happen to die, during the lifetime of the said Roger and Mary, and the said Mary should survive the said Roger without issue, then to the use and behoof of her, the said Mary Philipse, and her heirs and assigns forever; and in case the said Roger Morris should survive the said Mary Philipse without any issue by her, or that such issue is then dead without leaving issue, then, after the decease of the said Roger Morris, to the only use and behoof of such person or persons, and in such manner and form, as she, the said Mary Philipse, shall, at any time during the said intended marriage, devise the same by her last will and testament; which last will and testament, for that purpose, it is hereby agreed by all the parties to these presents, that it shall be lawful for her, at any time during the said marriage, to make, publish and declare, the said marriage, or anything herein contained, to the contrary thereof in anywise notwithstanding; provided, nevertheless, and it is the true intent and meaning of the parties to these presents, that it shall and may be lawful, to and for the said Roger Morris and Mary Philipse, jointly, at any time or times during the said marriage, to sell and dispose of any part of the said several lots or parcels of land, or of any other her lands, tenements, hereditaments and real estate whatsoever, to the value of three thousand pounds, current money of the Province of New York; and in case the said sum of three thousand pounds be not raised by such sale or sales during their joint lives, and they have issue between them, that then it shall be lawful for the survivor of them to raise the said sum, by the sale of any part of the said lands, or such deficiency thereof as shall not then have been already raised thereout, so as to make up the said full sum of *The court overruled the objection, and allowed the deed to be read in evidence, and the counsel for the defendant excepted to the same. three thousand pounds, anything herein before | give evidence to show that diligent efforts had contained to the contrary thereof in anywise been made in England and in the United States notwithstanding. to find the lease, without success; which was 10*j objected to by the defendant on the ground that such evidence did not go to prove the loss or destruction of the lease, but to show that none ever existed; and that before such evidence was given, it must be proved that a lease did once exist. The court overruled this objection, considering the recital in the release prima facie evidence for that purpose, and the plaintiff gave the evidence. To this decision, in dence, the counsel for the defendant excepted. Testimony was then offered and admitted to prove that it was the almost universal practice not to record the lease when the conveyance was by way of lease and release. This evidence was given by the testimony of persons who had examined the offices of record, and not by that of those who kept the records. The counsel for the defendant objected to this evidence, alleg ing that the facts asserted could only be proved by the persons who had the custody of the recThe plaintiff then gave in evidenee a convey-ords; but this objection was overruled, and the ance by lease and release of the premises, inter alia, by the heirs and legal representatives of Roger Morris and wife to John Jacob Astor. Evidence was then given, by the testimony of Mr. Hoffman, to prove the death of William Livingston and Sarah Williams, who were witnesses to the deed, and that the names of those persons were their proper handwriting. That Mary Philipse and Roger Morris inter-overruling the objections and admitting the evimarried, and had four children, all born before October, 1779; also the death of some of the children; the intermarriage of others; that Jo anna Philipse was the mother of Mary Morris and Susanna Robinson, wife of Beverly Robin son; that Beverly Robinson died between 1790 and 1795; that Roger Morris died in 1794, and his wife Mary Morris died in 1825. Evidence was also given to show that Roger Morris was in possession of the premises from 1771 to 1774. The conveyance by the commissioners of forfeited estates to Timothy Carver, of the land, was then given in evidence by the plaintiffs, and by Timothy Carver and wife to the defendant. Mr. Barclay proved that Roger Morris and his family left this country for England just before the evacuation of the city of New York by the British troops in 1782 or 1783, and that neither of them had since returned to the United States. The plaintiff here rested his case. And thereupon the counsel of the defendant objected, and insisted that (independent of any other questions that might arise upon the plaintiff's case) unless the deed, commonly called a marriage settlement deed, which had been given in evidence, was accompanied or preceded by a lease, the plaintiff could not recover in this action; that without such lease, the deed could only operate as a deed of bargain and sale, and the statute of uses would only execute the first use to the bargainees, Joanna Philipse and Bey erly Robinson, who took the legal estate in 11* the land; and that the children of the said Roger Morris and his wife took only trust or equitable interests, and not the legal estate in the lands; and that the plaintiff could not recover, because such lease had not been produced, nor its absence accounted for, if one existed, and of this opinion was the court. The counsel for the plaintiff then offered to give evidence to the court to prove the loss of the said lease, to lay the foundation for second ary evidence of its contents, by showing that diligent search for such lease had been made in various places without being able to find the same; to which evidence the counsel for the defendant objected, on the ground that such evidence did not go to prove the loss or destruction of the lease, but to show that none ever existed; and that before the plaintiff could give such, or any other evidence of the loss of the lease, he must prove that a lease did once exist. The counsel for the plaintiff then offered to same was excepted to. Here the plaintiff again rested_the_proofs as to the loss of the lease, and offered to [*12 give secondary evidence to the jnry of its previous existence and contents. The counsel for the defendant objected, and insisted that the plaintiff had not sufficiently proved the loss of the lease, and was not entitled to go into secondary evidence of its previous existence and contents. But the court overruled the objections, and was of opinion that the plaintiff had, from the evidence, satisfied the court as to the loss and nonproduction of the lease, and was entitled to give secondary evidence of its contents; to which opinion and decision, the counsel for the defendant also excepted. The counsel for the plaintiff, for the purpose of proving to the jury the existence and contents of the lease, offered to read in evidence to the court and jury the recital contained in the said release or marriage settlement deed, of a lease or bargain and sale for a year; to which evidence so offered as aforesaid, the counsel for the defendant objected, on the ground that the said recital was not evidence for those purposes against the defendant. But the court overruled the objections, and permitted the recital to be read in evidence to the jury to prove the existence and contents of the lease, to which opinion and decision the counsel for the defendant also excepted. The plaintiff then offered, and gave in evidence, by the testimony of Mr. Benson and Mr. Troup, that William Livingston, who had witnessed the deed of release, was an eminent lawyer in the city of New York, where the deed was executed, and that it was the practice at that time to employ lawyers to draw deeds; that it was usual to recite the lease in the deed of release; that it was a frequent practice in New York to convey lands by lease and release, until within four years of the Revolution. Evidence was also offered and admitted by the books of record to show what was the usual form and contents of a lease. To all this testimony the counsel for the defendant excepted. The printed journal of the House of Assem An bly of New York, for the year 1787, was then | lands in the counties of Putnam and Dutchess;" admitted in evidence, under an exception by the Act passed April 19th, 1828, entitled 13*] the counsel for the defendant. It showed Act to revive and amend an act entitled 'an Act that on the 16th of February, 1787, a petition to extinguish the claim of John Jacob Astor. had been presented by Joanna Morris on behalf and others, and to quiet the possession of cerof herself, her brothers and sisters, children of tain lands in the counties of Putnam and DutchRoger Morris and Mary, his wife, relative to the ess."" Evidence was also given, the defendestate forfeited to the people of the State of ant's counsel excepting thereto, to show that New York by the attainder of their parents, this suit was defended for the State of New and a report thereon to the Legislature, and York by the Attorney-General of the State. here the plaintiff rested his case. The defendant gave evidence to prove that Timothy Carver, and himself under him, had been in possession of the premises since the close of the Revolutionary War, claiming the same in fee. He also produced and read in evidence, conveyances by way of lease and release executed by Roger Morris and wife in 1765, 1771, 1773, and other deeds and leases for parts of the lot No. 5, in which no mention was made of the marriage settlement, and in which the property was described as held under the patent to Adolphe Philipse, and in which Roger Morris and wife covenant "that they had good right and full power and lawful authority to release and convey the same in fee." The defendant also gave in evidence the exemplification of a patent to Beverly Robinson, Roger Morris, and Philip Philipse, dated the 27th of March, 1761, in which is recited the surrender of part of the great tract granted to Adolphe Philipse on the 17th of June. 1696, the descent of the whole of the said tract to the children of Frederick Philipse; no mention being made in the recitals of the marriage settlement, and by which patent two tracts of land, as a compensation for part of the land held under the original patent, which was supposed to lie within the Connecticut line, was granted. It was proved by the evidence of Mr. Watts that he had in his possession the marriage settlement deed which had been read in evidence, at and immediately before the time of its proof before Judge Hobart in 1787; that the witness wrote the body of the certificate of proof indorsed on the back; that the whole of the said certificate was written by the witness, except the name of Judge Hobart, written at the bottom, which was written by the said judge; that he believes he wrote the certificate in the presence of the judge at the time the proof was made, which was at the house of said judge, in the city of New York (Governor Livingston 14*] was then staying at Judge Hobart's house on a visit). On being shown the said original certificate, the witness said that a blank was originally left in the body of the said certificate for the name of the judge or officer before whom the said proof was to be made, and from that circumstance he had no doubt that the said certificate was written before he knew what officer would take the said proof, and not in the presence of the judge; that the witness received the said deed early in the said year 1787, in an inclosure from the said Roger Morris, who was then in London, England. The plaintiff then gave in evidence, the defendant's excepting thereto, the Act of the Legislature of the State of New York, passed April 16th, 1827, entitled "An Act to extinguish the claim of John Jacob Astor and others, and to quiet the possession of certain The counsel for the defendant then gave in evidence an exemplification of the proceedings of the Council of Safety of New York, on the 16th of July, 1776, in which it was resolved, unanimously, that all persons abiding within the State of New York, and deriving protection from the laws of the same, owe allegiance to the said laws, and are members of the State; and that all persons passing through, visiting, or making a temporary stay in the said State, being entitled to the protection of the laws during the time of such passage, visitation, or temporary stay, owe, during the same time, allegiance thereto; that all persons, members of or owing allegiance to this State as before described, who shall levy war against the said State within the same, or be adherent to the King of Great Britain, or others, the enemies of said State, and being thereof convicted, shall suffer the pains and penalties of death. *The counsel for the defendant also [*15 read in evidence an Act of the Legislature of the State of New York, entitled An Act for the forfeiture and sale of the estates of persons who have adhered to the enemies of this State, and for declaring the sovereignty of the people of this State, in respect to all property within the same," passed the 22d of October, 1779; it being admitted by the counsel for both parties that Roger Morris, Mary Morris, the wife of Roger Morris, and Beverly Robinson, mentioned in the first section of the act, are and were the same persons by those names therein before mentioned; Beverly Robinson being the person by that name who was one of the parties to the marriage settlement deed: Also an Act entitled "An Act for the speedy sale of the confiscated and forfeited estates within this State, and for other purposes therein mentioned," passed the 12th of May, 1784: Also, "An Act further to amend an Act entitled an Act for the speedy sale of the confiscated and forfeited estates within this State, and for other purposes therein mentioned,' passed the 1st of May, 1786: Also, "An Act limiting the period of bringing claims and prosecutions against forfeited estates," passed the 28th of March, 1797: Also, "An Act for the limitation of criminal prosecutions, and of actions and suits at law," passed the 26th of February, 1788; and "An Act for the limitation of criminal prosecutions and of actions at law," passed the 8th of April, 1801. The counsel for the plaintiff then made and submitted to the court in writing, the following points upon which they relied: 1. Mary Philipse, in January, 1758, was seized in fee-simple. 2. By the deed of settlement a contingent remainder was limited to the children of that marriage, which vested as soon as they were born, and no act of Morris or his wife, done after the |