Benzein v. Lenoir, 16 N.C. 225, 1 Dev. Eq. 225 (1828)

June 1828 · Supreme Court of North Carolina

16 N.C. 225, 1 Dev. Eq. 225

Christian L. Benzein, et al. v. William Lenoir, et al.

From

¿I being an incident of the legal estate in the land, is of noces, cjtr tl.jrtioyed or suspended by whatever destroys or suspends the crdaie. Therefore, the lord by escheat,, tbs • bator, intruders di, 'j idol's &c. are not .subject to a tuisl,

Where a grant is obtained, with knowledge of the fact that the land has born before granted, such grant is void, and will be vacated in equity. Whore tins state oí facts appear», the Court will act, although the party entitled to relief is made Defendant with the fraudulent granice — especially where the bill was filed many years ago, «.-hen our equity system was imperfect, and the practice little lin-del stood.

'iViierc such fraudulent grant lias been recently obtained, the Court will entertain a bill to vacate, upon the ground oi quia timet; a for-tiorj, where possession has been had under it so as to bar or cloud tl,’. title at law, and will not only vacate the grant, but direct a "e-conveyance.

It & no defence that the fraud was not intended for the person upon whom it has taken effect 5 for if fraud exists, the party practising it shall not be protected against any who are injured.

_\r> equity of redemption is not a trust, but is a right inherent in tho I-.nd, and charges all who take the land, although coming in in the post and by tilla paramount.

"Tija doctrine laid down in Campbell v. SJaeAHhur, (-A4 C. T. It. II5,} recognized us lav/.

TSiis cause., while!» bar, in Hu various stagi-s been ire quently before the Court, (vide Conference Reports, Si?’-, 3 Law Sep. 504,) was argued at last term, upon the order for rehearing’, made by Uadgjek, Judge, on the Autumn Circuit of I8Í14, (4 Ilmvks 408.)

The bill was filed before the year 1800, and subsequently amended ; from the length of time which haa elapsed since the coninienremesil of the suit, many chan ip-, have tallen place in the parties, which it is unnecessary to notice, as the cause turned solely upon the questions presented by the original and amended bill. It was filed by ibe Plrdniffs, styling themselves (■ members ef the Unitas Fratrmn, on behalf of themselves and all the other members of the said Unitas Fratrum.” They aver-|¡iat on t¡,e igt|, day of November, A. D. 17S4, Earl Qranvilie granted to Henry Cossart, agent of and-trustee for the Unitas Fratrmn, two tracts of land in Wilkes county 5 that Henry Cossart died before the 4th day of July, A. D. 1776, leaving Christian Frederick Cossart, of the kingdom of Great-Britain, his heir at law. That Christian F. Cossart, with a view to a sale of the said land, in the year 1772 appointed one Frederick William Marshall his attorney, with a power of substitution. — ■ That Frederick W. Marshall, in pursuance of this power, appointed John Michael Graff his substitute, who on the 22d day of July, A. D. 1778, sold the said lands to one Hugh Montgomery now deceased, for 6,250 dollars ; that Montgomery paid 2,500 dollars of the purchase money, and on the next day, July 23d, for the purpose of securing the balance, demised the lands to Graff for the term of five hundred years, with a proviso for redemption • that Graff the mortgagee held the legal title of the term in trust for the Unitas Fratrmn, and upon his death it vested in Fragott Bagge ids administrator, who well knowing the trusts upon which his intestate held the same, assigned it to Frederick William Marshall, the agent of and trustee for the Unitas Fratrum, who by bis will dated December, A. D. 1801, devised it to the Plaintiff Benzein, who was also one of his executors, by whom the will was proved in this state. That in all the above recited transactions, Henry Cossart, Christian F. Cossart, Frederick W. Marshall and John M. Graff, admitted themselves to be trustees for the Uniias Fratnmn, an ancient Episcopal Church, recognized as such by an act of Parliament, 22d Geo. 2, and that the name of Henry Cos-’sari was used for no other reason, but because the legal title to the land was supposed to be vested in him, and that Montgomery in his will recognized the balance of the purchase money for the said land as a debt due bv Jtifm ío ¿lie • Cuitas Fratrnm, and charged his residuary estate with the payment of it. That Mmigmnerii in bis 1 *' life timo conveyed the said lands to several persons, of whom John Brown was the only survivor, in trust for his two infant children, that he appoint.';’ the same persons executors of his will, and that hr in his life time, and ills executors and trustees circe his death, had held possession of a part of the said land. The bill then averred that the Defendant Lenoir, and of her persons claiming under him, who were also Defendants, pretending that the land was subject to entry, had obtained grants for part of it.

The Plaintiffs insisted that the grants, if any had been obtained, issued since the year 1777, and were not warranted by any Jaw for opening the land-office, That if the land had been entered as confiscated, the grants were void and inoperative, ami if they were not void, that the state held the land if it had been confiscated, as a trust to secure the debt due to the Unitas Fralrum, and that it was still subject to this trust in the hands of the Defendants, who they averred had notice of it at the time they obtained their grants. The Plaintiffs denied that the land was within the several confiscation acts, and in support of this position, relied upon the act of 1782, entitled iS an act to vest .in Frederick William Marshall, Esq. of Salem, in Surry County, the lands of the Unitae, Fratrum in this state, for the use of the said Unitas Fra« irmn and other purposes.” The bill also alleged that there were defects in some of the instruments of transfer from Cossart to Montgomery, and sought to have the same corrected.

The executors and trustees under Montgomery’s will, as well as the persons who claimed under grants from the state, were made Defendants. The Plaintiffs prayed a discovery of the title claimed by the Defendants who were grantees, and that they might be decreed to be trustees for the infant children of Montgomery, and com-pellod to convey their titles and deliver up possession to> Ins surviving trustee, and that the Plaintiffs might have satisfaction of the debt due to the Unitas Fratrimu

John Brown, the surviving executor and trustee of Montgomery; in his answer, admitted all'the allegations-of the bill, stated' that he had brought an action at law to.recover possession of the land, in which ho failed; He denied his obligation to pay interest on the mortgage debt, because he had never been put in possession, and submitted- to pay the balance whenever this was done;

The Defendant Lenoir, in his answer, admitted that he had, on the 22d of May, A. D. 1779, the 24th day of September, of the same year, and'on the 1st day of March, A. D, 1780, obtained four grants for land which was within the boundaries of the land mentioned in the bill that these grants were founded on several occupancies,, some of them as old’ as the year 1765. He averred that he had been in actual possession and occupation of all the lands included within his grants ever since their date, claiming the same, adverse to the title of any person whatsoever ; and prayed the benefit of the act of 1715,. entitled “ an act concerning, old titles of land, and for limitation of action, and for avoiding suits in law.” He denied that Henry Cossart held the land mentioned in the bill in trtsst for the Unitas Frairnm, and insisted that he held for himself. He denied having any notice, before the date of his grants, of the title of Cossart, or of the trust claimed by the Plaintiffs to exist for the Unitas Fra-trum, but admitted that before that time “ he had heard that the Moravians set up some claim to two tracts of land, which were supposed to include the four several;] tracts herein mentioned as claimed' by him, but it was nothing more than a vague report, often contradicted by persons who said they fiad asked the Moravians about it, and that they disclaimed having any title to them j but that lie never had any information in the premises ‘to ¡«dure hint to believe that the Unitas Fratrum had any just claims to the land mentioned in the hill.”

'Hiero were twenty other Defendants. The titles of those who did not disclaim were, in all important particulars, similar to that of Lenoir. The grants they had obtained were all dated since the year lTS-l, and they admitted the same notice, and relied upon the same defence..

The deeds of Lord Granville to Henry Cossart, the power from Christian F. Cossart to Frederick W. Marshall, the deed of substitution from Marshall to Graffs the conveyance by Graff to Montgomery, and the mortgage made by the latter, the assignment by Bagge to Marshall, as well as his will and that of Montgomery, and a great variety of other documents were filed as ex Mbits to the bill. An abstract of those above mentioned only is thought to be material.

The deeds of the Earl of Granville to Henry Cossart. dated the 12th day of November, A. D. 1751, were indentures “ made between the Might Honorable John, Earf of Granville, &e. and Henry Cossart de SI. Avbin, Agent of the Unitas Fratrum. The limitation was “ to the said Henry Cossart, his heirs and assigns forever.” The covenants for the payment of the quit-rents were, that the said IFnrtj Cossart de St. JhMn, his heirs and assigns shall, fee.” There was no declaration of trust for the Unitas Fratrum, neither was their name mentioned in the deeds, except in the manner above set forth. The return of the surveys, however, stated them to have beermat! e “ for the Lord Advocate, the Chancellor and Agent of the Unitas Fratrum,,” The power of attorney from Christian F. Cossart to Frederick W. Marshall recited, •that “ for the end, intent and purpose that all and singular the fee simple, inheritance and full property of ai: lay messuages, lands, plantations and hereditaments novr belonging to me the said C. F. Cossart, situate, lying and being in the province of North-Caroiina, may be sold, &e. the said W. Marshall, of Salem, in Wacovis, (the name of the Moravian settlement) in the said pro * vince of North-Carolina,” was authorised to sell and dispose of the same, and lie was directed “ to remit and consjgn the proceeds to me, the said C. F. Cossart;, or otherwise to my executors, administrators or assigns.,s> No mention whatever was made in it of the Unit at Fratrum.

The substitution of Graff for Marshall followed the words of the original power, and in no way upon its face'did it appear that Graff was the agent or trustee of the Unitas Fratrum, whose name was not inserted in the deed. The same was the case with respect to the deed made under this power by Graff to Montgomery, and of the reconveyance to Graff in mortgage, and the articles in execution of which the deed was delivered, recited that the land was the property of C. F. Cossart.

The assignment by Bagge to Marshall recited the power from C. F. Cossart to Marshall, the substitution of Graff, the sale to Montgomery, and the mortgage by the latter to Graff, but contained no allusion to the interest of the Unitas Fratrum.

F. W. Marshall, by his will, recited, that “ whereas it is incumbent on me to see that sacred trust imposed in me by the people known by the name of the Unitas Fra-irum, with respect to all the land which I have and hold for them, in the State of North-Carolina, settled and es» iablished, &c.” The will then recited the conveyance by Earl Granville, on the 7th of August, A. D. 1753, of 98,985 acres of land, known as Wacovia, to James Mutton, Secretary of the Unitas Fratrum, and a declaration of the samo date by Mutton, that he held the whole of the 98,985 acres of land in trust, for the use and benefit of the Unitas Fratrum,, and declared the trusts upon which great quantities of land in Pennsylvania and New-Jersey, as well as in North-Carolina were held, and devised the whole thereof to the Plaintiff Benzoin, in fee sim pie, in trust that the devisee and his heirs would main tain toe said Ünited Brethren tn posc.u.»iuu of the said tracts and pareéis oiTand. And as to the lands india-¿míe, the will declared that they were originally " conveyed by the late Navi Granville to Henry Cossart, Agent of tfi3 Unitas Fmtrim, in trust for the sainé» The legal estate was afterwards by virtue of a power of attorney conveyed by rae, or which is the same, by my attorney, John. M. Graff, to Hugh Montgomery. And whereas the said Hugh Montgomery did mortgage the same lands to the said John M. Graff, for the balance of parchase money, and Vragott Bagge, administrator of the said John M, Graff', assigned the said mortgage to me, 1 do therefore hereby devise all my right, &c. in and to the said lands, to the said Christian L. Benadn, his heirs and assigns, in trust, as aforesaid.

Montgomery, by ¡¡is will, which was proved in the year ifSO, after several specific bequests, charged all the re mainder of ins estate with the payment of his debts, and K especially with a just debt ist specie, which Í owe to the .Moravians at Salem, and I do in a particular manner, order and direct my said executors to satisfy and discharge such Moravian debt, in gold or silver, according to equity and good conscience, and for that purpose to sell and dispose of so much of my said residuary estate for gold or silver, as shall fully satisfy that debt.

Replications were taken to the several answers, bat die Plaintiffs, by an instrument filed as an exhibit, admitted that the Defendants had been in possession of the. land claimed by them, in the manner set forth in their answers.

The depositions filed were exceedingly voluminous» It is thought, however, that the case may be easily understood without an abstract of them.

A decree for the Plaintiffs was made in 1814, ('vide Ca¡\ L. Bepos. 504,) and the object of the petition was A reverse that decree.

Badger* in support of (he petition,— -

I. No valid trust has been shewn.

1. The deed from Li. Granville to Henry Cossart does no{; express any trust. In the premises the grantor is described as Lord President of the Privy Council, and Knight of the Garter* and the grantee is styled agent of the TJnitas Fratram. This description occurring in the premises whose proper office it is to specify the parties and the thing intended to be convoyed, cannot be supposed to intimate a trust, and in tiie habendum, where properly the uses and purposes of the conveyance as well as the quantity of estate conveyed ought to be declared, nothing is said of any trust; but the person having been in the premises sufficiently identified, even the term « agent” in omitted and the limitation ‘is to “ Henry Cossart and his heirs and assigns.” To infer that the Unitas Frairtm were concerned in this grant because the grantee is styled their agent, seems not more reasonable than to suppose the Privy Council, or the Knights of the Garter had an interest in the grant, because the grantor is said to be a member of the latter, and the president of the former,, The certificate of survey is certainly a very improbable place to find a declaration of the trusts of the grant.— That can only show for whom the survey was made, and if the survey was made for them, it is clear the land was not intended to be granted in trust for them. If Cossart took a grant to himself of land surveyed for them, he might on the ground of fraud be constructively a trustee, but no such fraud is alleged. The trust set up in the bill is a direct and proper trust, and is not supported by-proof of facts, from which the Court, acting uptan the eon-science of the party, will by implication, raise a trust. The two species of trust are entirely distinct in their character, and governed by different rules, and the proof of the latter does not sustain an allegation of the former .

If such a trust as the Plaintiffs allege existed, and was recognized by C. F-«Cossart, why does not an intimation .¡'i it appear in the power of attorney to Marshall, in the instrument of substitution, in the deed to Montgomery, in the art ¡dea of sale, or in the deed which raises Ihemort-gage i a m to Graff ? In all these inssrmiients, the land is treated as the properly of Cossart alone, the sale is made for his benefit and the proceeds are directed to be remitted to him or to his assignees. Yet Marshall and Graff were members of the Unitas Frairum, and Bagge the administrator of Graff, in his assignment to Marshall, takes no notice of the existence of any interest in the Unitas Yralrnni,

2. If the deed does not express the trust, parol evidence is not admissible to shew it. Tire general doctrine that such evidence cannot be received to add to, or alter a written instrument, either at law or in equity, needs no authority for its support. No exception can be shown, which includes the present case, and the general rule is directly applicable to, and decisive of it. (Roberts en Frauds, 91 — &‘irk v. Webb, Free. eh. 84.)

The act of 1782, lends no support to the Plaintiffs case. The purpose of that act, as declared in the preamble, w as to vest in Marshall, the lands of the Unitas Fratrum In ibis state, and the second section vests in him the Wa-chovia and other tracts, but not that in question. The inference is that it was not their land.

3„ The trust, if any, was void, because limited to ari indefinite multitude.

In giving a construction to the statute 1 Rich. 3, which enables the cestui que me to convey the possession without the concurrence of his trustee, the distinction was settled between uses and trusts $ the former being general and permanent, and the latter special or transitory. Where the seizin was transferred upon a confidence, that the feoffee would permit the feoffor, or any oilier person and his heirs to receive the rents and profits, and that the feoffee would make such legal estates as should be directed, this confidence was the ose: but where the transfer was to the itifent that the feoffee should do some act which required him to have both the legal estate & the use, as to convey to a third person, this special confidence, was a personal trust in the feoffee. (Sanders’ Uses and Trusts, 3d London edition, ch. 1, sec. 1. 2.) Up on this use the statute 1 Rich. 3, operated, enabling ces-tui que use to convey to a third person the legal estate, without the concurrence of the trustee, and upon this use, the statute of uses 27 Hen. 8, also operated by transferring to the cestui que use himself, the legal estate, without his own concurrence or that of his feoffee; but the special trust or confidence still remained unaffected by either of the statutes. The species of trust which is the creature of Courts of Equity, and introduced in consequence of the statute of 27 Henry 8, is but the secondary use, unexecuted by the statute. Whatever modifications modern trusts have undergone, they are in their origin and nature, nothing but uses upon which 27 Henry 8, does not operate. This trusf, like the use before the statute, is a general and permanent right to the beneficial enjoyment as owner, of an estate of which another is seized at law. The use before, and this trust since the statute of uses, are, so far as this discussion is concerned, the same thing. (Sand. U. <§• T. ch. 3, s. 1-Cruise Big. Trust, ch. 1, s. 1, 2, 3.)

It is said by Ld. Keeper Henly in the case of Burgess and Wheate, (1 Blk. Rep.. 186,) iS that uses and trusts are the same, seems adopted by all the great persons who have presided in this Courtand in the same case Ld. Mansfield says, that “the forum where it is adjudged, is the only difference between trusts and legal estates, and whatever would be the rule of law if it were a legal estate, is applied in equity to a trust estate-” Such also was the opinion of Ld. Hardwicke. (1 Mk. 591.)

In every limitation of uses, it was necessary there should be a person capable of taking the use, and those only were capable who could take the legal estate $ feme© a use to the parishioners of a particular place was vokl» (Sand. 1 ch. sec. 9, p. 54, 55.) This rale Is the same as to the capacity to take a trust estate. (Sand, 1 J L ch. 8, s. 8.) But a legal estate limited to the Uuitas Fratrum, would be clearly void- — so would a use, and by the plainest Sc most precise analogy, would be a trust.

There is not the least reason to suppose that a trust for the inhabitants of a parish is good, otherwise than as a charitable use within the statute 4 a Elm. Mr. Sanders does indeed say, in the second edition of his work at page 67, that a use to a parish though void as a use, is good as a trust, but the case he cites, was decided upon the statute of Eli». In the 3d edition, which was carefully revised by himself, the position is omitted, and the omission cannot be attributed to accident. He distinctly considers the question, who is capable of taking uses and trusts, as they existed before, and exist since the statute of 27 Men, 8, and could only have left out the passage in question, because in a general sense he thought It untrue, and in its restricted reference to charitable uses, inapplicable to the subject of his treatise. The opinion of this writer is therefore with'us, and no authority can be produced except the position laid down by him, and by him subsequently retracted.

It being clear, then, by both authority and analogical reasoning, that a vague trust is void, we arc brought to the enquiry, whether the trust now in question Is excepted from the operation of the rule as a charitable use. On this point I refer to the argument made at December Term last, upon Griffin’s will,^* only adding, that the case of the Baptist Assoáation v. Hart’s Ex’r. then cited, is a conclusive authority to show, that the trust here is void. There, the limitation was in trust for the “ Baptist Association which for ordinary meets at Philadelphia,” and is, to say the least, as certain as a trust tor the Unitas Fratrum, a religious society whose members are scattered over Europe, America, and the remotest parts of the world.

But the act of Parliament recognising the Unitas Fru-trum as an ancient Episcopal Church, has been, and may be relied upon, as giving them a capacity to take. It is not; pretended that the act incorporates them, or expressly confers upon them any new faculties or powers, and the only question which can be made is, whether the bare recognition of an existing unincorporated society confers a capacity to take and hold property. It is evident it does not. The law of England recognises Counties and foreign States, yet they are incapable of taking any estate, legal or equitable. Parishes are recognised, yet we have seen that a use limited to a parish is void.— Churchwardens are officers whose existence is recog-nised, and their authority declared by many acts of Parliament j they are, to some purposes a corporation, have succession in law, can hold goods and chattels, and bring actions as churchwardens. (2 Hen. SI. 559. 1 SI. Com. 394. Cam. Big. Eglise F. 3.) Yet a devise of real estate to them is void. (Wright v. Bow — 1 Brown C. B. 61 in notes.) For what reason ? Because they are not a corporation as to lands. CCom. Big. Eglise, F. 3.J Is the Unitas Fratmm on higher grounds than the Church of England itself? That Church, established, endowed and protected by law, has been recognised by innumerable acts of Parliament, from Magna Charla to the present day, and yet in its aggregate, the Church of England is incapable of taking any estate. (Town of Panflet v. Clark — 9 Crunch, 325, 329.)

But if recognition will confer corporate powers, why not the power of taking the legal estate ? How is its efficacy limited to trust estates ? The great purpose of incorporation, is to give succession in law to a body whose members by natural causes, are constantly changing. (1 BL Com. 494.) If such powers exist, in whom áre they vested ? Where is the succession, and in whom is the power to sue, to act, and to bind the whole body of the Unitas Fratmm? Is it in the members who reside in Kurope, in Asia or in America ? If the trust, in question is valid, the most arbitrary, capricious and indefinite limitations cannot he pronounced too vague for judicial support.

IL If there was a trust declared upon the legal estate of IT. Cosmrt, and that trust was valid, then upon Cos» sart’s death, before 1776, the legal estate descended upon his heir at law. It either remained In him, or was conveyed to Montgomery, and if so, there was a dear reme» dy at law, and consequently none in this Court $ or the laud vested in the State, by the effect of the Revolution, or the confiscation laws, and, if so, the State held exempt from the trust, and so granted to us, before the act of 1782.

1. Supposing the estáte in Cossarl or his assigns, there was a clear remedy at law, which subsisted at the filing of the bill, unless barred fey legal impediments, and no argument can be required to shew, that, in such case, equity cannot interfere. If this case is virhin any exception to the general rule, it ought to fee shewn by our opponents. If defects in the instruments of transió;, be relied upon to give jurisdiction,, we say, first, ao such defect exists ; secondly, if there be any, the estate is left in him who made the defective instrument, and he was competent to assert the right at law: thirdly, if such defect gives jurisdiction, it is only against the trustee, and these who represent him, in favor of those interested in having the estate transferred, and not against those who claim adversely to both ; and lastly, if jurisdiction can fee assumed against us, it can only be to supply the defect, in order to enable the party to proceed at law, and not for relief here upon a subject matter cognizable at Jaw.

2. Supposing the legal title in the State, it was held discharged of the trust, as will appear from considering ♦he nature of that interest.

To the very existence of a use, before the 97 IL 8, were necessary» a person capable of standing seized to t|)e use, privity of estate, and confidence of person — for & use wag a trust or confidence, which was not issuing out of land, but was a thing collateral, annexed in privity to j|ie ¡>gfafe and to the person. Hence it followed that whenever either of these essential requisites failed, the use, which could not subsist a moment without them, was, of necessity, either suspended or destroyed. For want of privity of estate, the lord by escheat, and the. lord who entered for mortmain, held discharged of the use. So of the disseisor, abator or intruder, for they were in of a different estate, f Sanders, eh. 1, sec. 9.)

So where a tenant for life, remainder in .fee to the uso of another, makes a feoffment in fee, the feoffee, though lie hath notice cannot stand seized to the use, for that is annexed to one estate, and he is in of another. (1 Sep. 122 b. Sand. ch. 1. sec. 9, p. 53.J

In like manner, where confidence in the person did not exist, though there was privity of estate, the use failed —as where feoffee to uses for valuable consideration, and without notice enfeoffed another. (Ibid.J

The king by reason of the dignity of his person, could not stand seised to a use, nor the queen, nor could a corporation — therefore, if lands were conveyed to the king and a subject for term of their lives to certain uses, such uses were void as to a moiety of the lands. (Sand. ck. sec. 9, p. 53. J

The reason of these cases is very evident, if we keep in mind that the use is annexed to an estate, and cannot be supposed to exist without it — is not an interest in the land, or issuing out of the land. That which depends apon the estate in the land must be destroyed by whatever destroys the estate j while that which attaches upon the land itself, cannot be affected by the destruction of the estate, on which it does not depend. This doctrine is stated, and the, diversity well illustrate;!, in 1 Reports, i %% fa

In what respect dues a trust differ from a, use, so that it can subsist after the destruction of Use legal estate Created to support it? The very definition of a trust shewn that it is collateral, annexed in privity to the ¿ate, and not issuing out of the land, (t ¡7-m. Bl. U, 160.. €ruise, Trust, ch. i, sec. 1, 2, 3. Sand. 214.) Mr. Sanders has indeed said, (jp. 277,) that a trust will attach upon the land, but the case of Moggrhlgc v. ThackweU9 (3 Bra. Oh. Sep. 517,) which lie cites, supports no suck position. The case is a very simple one ; a devise of personal estate to charitable uses, and the devisee dying :u the life of the testator, it was held that the trust should not fail for want of a trustee. The subject of the devise was personalty, ami therefore the case is not analogous to wars J but if it had been land, the decision does not effect a single position Said down in this argument. The estate of the testator was subsisting in his heir at law? and upon that estate a trust was declared. It is there fore highly probable the expression does not convey the meaning of the writer, and if it does, his own work auf-JicientEy refutes it. If the trust attaches upon the land, ¡it will charge even a purchaser without notice, and will follow the land into whatever hands it may come, like ■charges for equality of partition and other incumbrances j but the distinction hot wee» them is clear and decisive.— 'l Hep. 122 L)

M¡\ Sanders has also said that the King may be a f'.-esiee, (p. 278,) but the authorities he cites relate only to cases where the same estate on which the trust was declared, is vested in the King, In one of them {Penn v. Baltimore, I Vesey, 443,) the Duke of York who was ■■•rusice for Penn, afterwards ascended the throne, and s-Vi Ckasxeiior inclined he might be a royal trustee, but gsw» ¡so ¿¿tided opinion — -and even the inclination of kb tsikd tv a a produced by the special circumstances of f,íi.í c'ise. C Is one intimated,' that laud vesting iys the King in his sovereign capacity, by title paramount, could be charged with a trust. Upon principle therefore, it tniig^ j)e that whatever destroys the estate of the trustee, destroys the trust also.

In opposition to tiiis reasoning, may be urged what is reported to have "been said in Geary v. llearcroft, (Carter 67) as stated by Mr. 'Sanders, (p. 279,) “if a man comeys lands in trust, and the trustee commit fe» lony, these lands shall be forfeited, though he. may have relief in equity,” to vvhicli Sanders subjoins, “ it is the same if the trustee commit-treason, for as cestui que trust forfeits iiis estate for treason, it is not consonant to justice, that the trustee should forfeit for the same offence.” Now it is dear, that cestui que trust does not forfeit the trust estate for felony. (Attorney Geni. v. Sands, S Rep. in Oh. 6,7 — Cruise, Trust ch. 2, s. 27, 28,) and therefore the doctrine in Carter is not law ; for forfeiture is annexed to the estate by the tenure, and if a conveyance to trustees will protect the estate from that consequences both for the felony of trustee and cestui que trust, the lord may be deprived of his right, and estates disencumbered of an essential incident, by a mere contrivance of the tenant. The observation of the Master of the Rolls in Bales v. England, (Free. ch. 200,) “ that if the trustee die. without heir, the lord by escheat will have the land at law, yet subject to the trust in equity,” and the obser-'ration of Ld. Mansfield in Burgess v. Wheate, may also be urged against us. Now the point decided in the lasé ease, is a complete answer to the dictum of the Master of the Rolls. It was there held, that upon the death of cestui que trust without heirs, the-'trust was expired, and did not escheat, and therefore that the trustee held discharged of the trust. If then the lord is subject to the trust, where the trustee dies without heirs, escheat is substantially destroyed, although by law incident to the .leñare-

SJuf should these observations bo ¡reiki! ¡upon, i{ is air iiirei! for She Defendants,

1. That they are mere dicla, unsupported by author!¿y, contradicting a plain analogy between uses and trusts, and subverting entirely the distinction between ineunu ¡.'minees which affect the land, and equities which aiFeci fbe estele only. (Cruise Escheat, see. 4! A

ii, The observation in Males v. England certainly, and the others probably, refer only to private persons, and do «oí, apply to (he sovereign taking jure enronie, (Cruise Escheat, sec. 43).

3. Mr. Hargraves decided opinion — -lie. declares that Ld. Bridgman’s own manuscript reports contain no sue!» proposition as that stated in Carter, and considers the dictum in Free. Ch. too loose to command any attention,, (1 Juris. Ese&r. 390 — Cruise Escheat, sec,. 43.)

4. The assertion of Ld. Macclesfield, that if a trustee of copyhold die without heir, the bird entitled by escheat is not subject to the frost. (1 Strange 454»)

5. The case of Stevens v. Bailey, (Mels. 107.') One Contracted to sel!, and before assurance made, died without, heirs, on which the land escheated, and the Court held the lord not bound to complete the contract. After the sale, the vendor was a. trustee for the vendee, ami if the lord is subject to a trust in equity, he was bound to convey. (Cruise. Escheat, sec» 44.)

ü. The statutes 39 k 4 0, Geo. 3, ch. 88, see. 12 & 47, fíeo. 3, ch. 24, empowering the King to direct the ese,»» entiosi of any trusts, to which escheated property might be liable, r.t the time of such escheat, and to make grants to trustees for that purpose. For these statutes there could be no reason, if without, them, the trust was a sub' cdsting charge upon the lands in his hands, and he was hound to execute it,

7. The opinion of Mr. Cruise that the law is with us, ■n.nd is so considered. (Digest, Trust ch. 2, *. 4 — Escheat sea- 59 to 45, inclusive.')

Jt is nofc ai all material in what way the land vested in the state. Escheat is either per defectum sanguinis» or per delictum tenentis, and the reason of an escheat, in cvery ¡nstanC0j ¡s (¡Je same, viz. the want of a tenant to perform the services. (Cruise Escheat, sec. 11, 15.)— "Wherever there is none to inherit, the land must revert to the lord, because the estate of the tenant is exhausted.

Upon the whole, it is believed to be fully established, that the trust being annexed to the estate, and not to the land, does not follow the land, but expires with the estate on which it depends, as every incident does with its principal, and as the state did not hold under the trustee, but paramount and in another right, she held discharged of the trust.

The former decree declares, that we are not compe tent to move these questions with the Plaintiff — that whether there was a trust or not, is a matter to us of no consequence, and concerns only the Unitas Fratrum and those deriving title from Cossart. Now who are the Plaintiffs here ? The Unitas Fratrum alone. "What interest do they claim in the subject matter of the suit ? None except as cestui que trusts. Lay aside the trust, and they have no more right to institute this suit, than any other man, or society of men in the world; and wc may say with confidence, if there be no trust, they have no pretence to move any question at all respecting the land, either with us or any one else. The decree, does then in effect, affirm that a Defendant has no right to question the only interest set up by the Plaintiff, in the subject matter of the suit. Can such a proposition be maintained ? Can a suit be properly constituted and judicially determined without any Plaintiff, or what is the same thing, by a Plaintiff who officiously exhibits a bill in which be lias no interest,, against all of those who have the interest ?

III. If all these points arc against ns, vs ace protected by the static of limitations*

'Wo bail more than seven years possession, and under a grant which is color of title j and our claim ami possession were adverse, both to the Plaintiff and to üossarí.

The legal title whether in Cossarfs heirs at law, in ,Montgomery, or in Graff, could have been asserted at law', and not being asserted, was barred by our colour and possession. For reasons ntianswerabiy strong, it has been decided in this Court, that notice makes no difference as to life operation of the at at «te. Qieddiek v. Legget, 3 Murph, 539.)

The former decree seems to exempt this case from the operation of She statute, because of the trust, and our purchase with notice, by whirl; we became trustees, and cannot avail ourselves of the possession against the Plaintiffs. The decree forbids us to dispute the existence of the trust, on the ground that it is inmaterial to us whether it exists or not, and assumes its existence as the ground on which we are deprived of a defence, otherwise available for ns.

But assuming the trust to exist, is not the reasoning of the Court entirely fallacious? Trusts, as isas already-been shown, are annexed to estates in the land, and not. to the land itself — and those only are constructively trustees who take from the trustee, either with notice or ■without value, the estate on which the trust depended, Can an instance be produced, where one who entered apon land adversely to the trustee, was held to be a trustee, while the estate of the trustee w as subsisting am! capable of being enforced ? It may be confidently affirmed that no such case exists. The only principle on which the alienee from the trustee is charged with the trust, (as well as the nature of trusts,) shows that it can have no application lo a case of title, claimed adversely to the estate of the trustee» Notice is perfectly immaterial on this subject in equity, »<- well at law. (IS Tee. 84, 93, 190 )

But if it could be maintained, that we were construe-' lively trustees for the Plaintiffs, still they are barred,, for the reasons given by Sir William Grant, in Ins ad-judgment upon the Jamaica Statutes. (Beckforá v. Wade, 17 Ves. 87.)

If we were not trustees for the Plaintiffs, while the legal estate of Cossart existed, and was capable of being enforced, did" we become such because that legal estate was barred by the statute of limitations ? Most clearly we did not; for whatever bars or excludes the legal estate of the trustee, of necessity, destroys the trust — so that after that estate is gone, there remains no trust for which any one can be seised. The cases already referred to of escheats, &c. are full to establish this position. But the same doctrine has been decisively settled by many, decisions in direct reference to the effect of the statute of limitations. (Wyche v. E. I. Company, 3 P Wms. 809. — Lowly v. Lowly, 9 Mod. 33* — Cholmondely v, Clinton, 2 Merivale, 362. — 7 Johns. C. R. 115 — 6 Vesey 217.) And the cases referred to have been sanctioned in a recent case by Lord Manners. (J’enttand v. Stokes, 2 Ball and Beatty, 74.)

A contrary doctrine would produce ruinous consequent ces, and would subvert the safe and salutary principle on which this Court decided the case of Reddick v. LeggeU That decision, instead of having the effect to quiet titles to land, w'iil only convert him wiio had seven years possession, with a colorable title into a trustee, and, instead of giving him protection, will merely change the jurisdiction in which a recovery is to be effected against him

The case was argued by Gaston, for the Plaintiffs at length.

(The Reporter regrets that the arrangements made by him to present the argument of this gentleman to the profession, have w'holly failed; he is compelled, therefore, to ask that it may be inferred from the reply of Mr. Badger.)

.Judge,r in reply :—

is the parol evidence admissable to shew the trust ?

The rule at the common law upon the subject of parol evidence, to vary or add to written agreements, was very strict, and an attentive examination ot the citations from Roberts on the Statute of Frauds, will show that inde-pend» fitly of that statute, the evidence ia not admissable to prove the trust set up oy the LlaintniF. (Roberts, 9, üü, it. — Hampshire v. Pierce, 2 Ves, sea, 216, I Ves.jr. Ml. — Ld. Cheyney’s case, 5 Rep. 68.J

’The reason why at common law, a use (as to lands) might be declared by parol, was, that the estate passed, not by force of a deed, but by livery of seisin : but wherever, at common law, a deed was necessary to affect the transfers, a deed was also necessary to raise the ase. (Roberts, 91, 92, 93.J

Resulting trusts are expressly excepted out of the Statute of Fraudo» There are two cases of resulting trusts, and one of them is where the deed is made to one, and the purchase money paid by another. (Per Lord Hardwick, 2 M¡. 150.J How is Use state of facts from which the trust results, to be shewn ? We say, by writing — certainly not by mere declarations depending for proof on oral testimony, (Roberts, 94, 95. —Kirk v. Webb, Free, Ch. 84. — Newton v. Preston, ibid. Í03.J

That the exclusion of parol evidence to shew the de-clara! ion of a trust, is not derived from the Statute of Frauds, is evident from the case of personal property, t® which that statute does not apply. Where a written transfer or grant is made, a trust cannot be set up by oral testimony j because, though the case is not within the statute, yet the general principle of law excludes suda testimony, where there is a written instrument. (Roberts, 94. — Fordyce v. Willis, 3 Bra. C. C. 577.J in Mr, Eden’s note on Fordyce v. Willis, lie says, he has ** not been able to find an instance of a declaration of trust of persona! property, evidenced only by parol, bav-in c been carried into execution,*"

The conclusion from all the cases will be found to supPot>t these positions — where to (he creation of the legal estate, a writing is necessary, so it is also to declare ^je trust. yiherea written transfer is not necessary., yet if it exist, a trust cannot be supcradded by parol; and that independently of the statute altogether, a trust cannot be averred, except where, before the statute of uses, a use could be averred,^kvhich could not be where there was a declaration of the use, a feoifment or bargain and sale.

The utmost relaxation of the rule is found in the case, of Streeter v. Jones, decided in this Court, that facts and circumstances may be shewn ; and even from that deci sion, the Chief-Justice dissented. (3 Hawks, 423.)

As to the validity of the trust.

The ordinance of tiie Convention of 1776, was intended; not to give validity to gifts previously invalid, but only to secure from legislative interference, such property as had been well granted before. And the position cited from Bacon’s Abridgment, that “ a use to the poor of the parish of Dale is good as a trust,” is the same position laid down by Sanders, which lias been already considered, and does not require to be further discussed. It is very evident that this trust can only be supported as a charitable use, under the statute of 43d Elizabeth. The subject of charitable uses, so fully examined if, Bryan v. Graham,^* I consider as forbidden ground ,, but, admitting every thing that was demanded by the defendant’s counsel in that case, to be law, it will not help the Plaintiffs here. For in the first place, that sta tute was intended to protect charities within the realm, but the Unitas Fratrum, considered as a religious some iy, maintain their charities throughout the world,™-2d. Its protection extends to no body of which the Court has not the control. Attorney General v. City of London, and William and Mary College, (l Ves.jr. 343-3 Bro. C- C. 171, S. C.)

Eat it has been objected, that the judgment on the de-murm* (Cottf.II. 217,) determines this question, and that the only mode of re-examining that decision, was by a pe-tit ion to rehear the order. This is a clear mistake as to the practice in equity. After demurrer ovt msied, defendant may insist on the same objection by way of plea', (Milford, ■ 70) So if a plea be overruled, defendant may by his answer insist on the same matter. (Milford, 248.)

Did the State, supposing her to have taken by escheat ar otherwise, hold subject to the trust ?

The strict rule as to uses required in all cases privity of estate, and the only relaxation of that rule, as applied to trusts, is that wherever the same estate upon which the trust was declared or attempted to be declared, exists, any party having that estate, or any interest carved -.mt of it, though by act of law, shall he in general charged with the trust. Instances of this relaxation are found in the case of tenant by courtesy ; and in the ¿wo cases cited on the other side from Jmbter, 552, and >■ Brown, C. G. 81, where manifestly the estate still subsisted» In our case, the estate on which the trust was declared, is entirely spent and gone j and the other side must show, in order to support this trust, that a trust is Annexed to the band itself, in a strict and proper sense» Chis has been attempted, but it is conceived it has not 5 ecK accomp!ished.

That the terms land and estate are frequently used to express the same idea by legal writers, is certainly true, it is as certainly true that their signification is etx-Jrely dissimilar- — the first denoting the subject, and the ?aitcr the interest which one has in that subject.

That Mr. Banders uses the term land in the sense of ■•Mate in the passage cited, will be sufficiently clear by -,oei paring pages 212, 277, 278, and will he manifest by examining page 214, in which he quotes from Sir Mat* 'hew Male a statement of the diversity between ac pquity of redemption, as an ancient right iniierent in the land, and a trust as affecting only the estate.

The same remark may be made of Mr. Cruise's use of (¡ie W01.(] ]and, in title Trust, eh. 1, sec. 89, 90, as will be seen by his observations in the three following sections. But in whatever sense he used the word, it is ch ar he did ndt mean, that the King taking by escheat, is liable to the trust, for that position he expressly disaffirms.— (Escheat, sec. 42 to 47.)

In Burgess v. Wheats, Ld. Mansfield as to the point decided, was opposed by a majority of the Judges who decided the cause. He held that the King could call upon the trustee to execute the trust in his favor, the cestui que trust having died without heirs j and this opinion he founded on the position that the trust was, in the consideration of a Court of Equity, the land. But the other Judges held that the trust was gone, and the trustee held discharged of any liability. This case proves that, in a strict sense, the trust is not either the land or the estate, or equivalent to either, for if it were why was not the King entitled by escheat?

It is said that the decision of Sir W. Grant in Choi-mondely v. Clinton, has been reversed. It is true, but the position for which that case was cited, was fully supported and confirmed by his successor, as will be shewn in another part of this argument.

The citation from Jacob and Walker’s Reports will be examined presently, and it will be seen that its true meaning is only, that in equity the cestui que trust is considered the owner of the estate, his interest, being in nature of a seisin, and capable of an adverse possession, in nature of a disseisin, at law.

It is believed'then, that the ground taken in the opening argument is fortified by the examination given it ora the. other side. That a trust attaches on the land as distinguished from the estate therein, is supported by no authority, and countenanced only by occasional, hasty, sa<1 inaccurate language, while both, authority and'analogy sheiv, that the trust as an incident of tiie estate, pe-S’iahes with it,

Was there relief at law ?

The Plaintiffs either come here on the footing of i\ trust upon the legal estate of Cossart, or as entitled the mortgage term of Graff. As to the first, it has hedí» shewn that if there was such trust, it was * oid, or if the land rested in the state, the trust ceased, As to Graff’s mortgage, there is no proof that it was d reigned for the benefit of Plaintiffs, neither the mortgage nor the assignment shews it — -and no document takes notice of such an. interest but the will of Marshall, made in Derember, 1802, several years-after the commencement of the suit, If it did appear,.it is void, or if not, it in but a trust of the term of which Bagge had the lego! lisle. And in either view, this Court cannot entertain a hill against as, who hold adversely to all the parties, and claim no estate under any of them, The Plaintiffs having no inJe-res i in the suit, cannot help the jurisdiction by snaking-. Defendants with us, those who have that interest. , As to the latter, was there not clear remedy at law, if the legal title passed to Montgomery ? Can they seek rebel’ here now, because by their neglect, they are barred at law? Or if not barred, why eorne here at all ?

Are we protected by the statute of limitations ?

This Is certainly the great question in the cause, anti it is necessary to examine the argument so ably urged by the Counsel on the other side, with care and attention.

As a preliminary step in this part of the argument, we most enquire whether the land of G. F. Cossart vested' in the state either by the confiscation sets, or by the effect of the revolution. In support of the latter, nothing is adduced, and it is directly contradicted by the decision in Campbell v. McArthur, (JV*. C. T. B. 115.)— Then as to the confiscation acts. That of November 3.7?7, cli. 17, is the only osse which san he, suppose,d. to, affect our case. Cossart was not within the operation of it ;*■ the preamble describes three classes of persons as within the view of the legislature, viz. those who had withdrawn themselves from the state, and become attached to the enemy, those ví ho had withdrawn to foreign parts in order to avoid bearing part in the defence of the freedom of the slate, and those who being out of the United States at the commencement of the war, liad failed to ts return.” Within the two first classes, it cannot be pretended that Cossart is included — and the word return” in the clause describing the last class, shews that none was intended but those who had been our own citizens, and ought to have joined their countrymen in the struggle for independence. The Legislature had no view to seize the property of native citizens of Great-Britain, who had never been resident here, and from whom we had no right to expect assistance, but to punish those who had withdrawn from, or kept away from their homes In order to assist the enemy, or unjustly to withhold their aid from us. The latter was a proper and laudable purpose, and the former would have been injurious and illiberal, and therefore, the latter is to be supposed the purpose of the Legislature. Besides, this is a highly penal statute, and is to be construed strictly.

But further, the act specifying neither the individuals nor the property, nothing was divested out of the owner, and nothing passed to the state till an office found, or something in nature of it. (per Tayxok, J. in Faris and Wife v. Simpson, Conf, Rep. 178.) And this appears 4o háve been the understanding of the Legislatur e, for by the act of Oct. 1779, c. 2, after reciting that many persons who came within the description of the previous confiscation laws, had failed to return, it is enacted that the estates of certain individuals, specially named, “ shall be fully forfeited.” The case of Campbell and McArthur expressly decides, that persons owning lands in North-Carolina, had a right to decline taking part in the con-Íroví^sy, aud to sell their lands to any citizen, and that when such sale was made, and the title passed to a citi-®m, it was not competent for the Legislature to divest it. But the sale to Montgomery, was made in July, 1778, when no seizure had been made which divested the estate, and consequently the land was not within the operation of the act of 1779. It is not to be presumed the Legislature intended to divest the title of a- loyal citizen j but if they did intend it, they had not the power.

if however, the land did pass to the state, the trust on the principles already staled was gone; but if as we suppose, the title passed to Montgomery as to the fee, and as to the term of 500 years was vested in Graff, are we not protected by the statute r

It is admitted by us that naked possession is not sufficient-then had we not color of title ? We had a grant covering the premises and professing, and for any thing which appears upon its face, effectual to pass the title. Several reasons have been urged why this is not sufficient.

2. That the land was confiscated, and therefore the grant was not color of title. The position is denied, and if true, the conclusion does not follow. The act of 1779, cñ~ 5, sec. 12, declares all entries of confiscated land void, and hence the counsel concludes, that a grant for such land, will not operate as a colorable title. Tins reason-ang is unsound, for the act establishing the land office, and prescribing what lands may be entered, expressly excepts lands which had been before granted by the King and the Lords proprietors j and further, the last section of the Bill of Bights, which declares the right of soil to be in the people, expressly saves the titles of those claiming under such former grants. There can be no doubt therefore, that an entry of previously granted lands Is void, because the Legislature liad not authorized it, and because a higher power than the Legislature had excepted such lands from the general right of soil, claimed for fhe people. If then a grant of confiscated lands is not-a color of title for the reasons urged, a fortiori a grant of appropriated lands, is not. But a grant of lands ap-pj-()priated, though it passes no title, is yet color of title by the universal practice and assent of the profession, and the contrary ho lawyer would, at this day, maintain.

But in order to ascertain what this objection is worth, let us see what is the nature of a color of title. It is, says this Court in Tate's heirs v. Southard, (3 Hawks, 119,) es a writing upon the face professing to pass title, but which does not, either from want of title in the maker, or from some defect in the instrument.” Therefore a deed from baron and feme, without privy examination, is color., (2 Hayw. 235.) So a devise by one not entitled, although the statute of Wills gives the right to devise only to those who are seised, &c. (1 Murph. 413 — £ Hayw. 9 — «7V\ ó. T. R. 19.)

So an unregistered deed, though registration is essential to its operation, (2 Hawks, 33.)

So an unconstitutional act of assembly", though such act is absolutely void. {Episcopal Church v. Newbern, Academy, 2 Hawks, 233.)

And so also, a deed executed in the name of A, as attorney of B, though without authority, (2 Murph. 14.), And so,, in our case, the officers of the state signed the grant, and affixed the great seal without authority, and it is difficult to conceive why this should not be color of title also.

The objection presupposes as its foundation, that the statute operates to perfect those titles which are partially defective only ; but this is an entire mistake. The statute presupposes a party totally'without title, and protects his possession because he seems to have one ; the claim which a party sets up is, and generally must be entirely void, in order to the operation of the statute at all. (% Jac. & Wal. 160.)

2. It is objected that the defendant had notice that the lands had been before granted. To this objection the case before cited of Reitlick v. Leggett, anti the second section of the .statute itself, furnish a conclusive

3. it is said our claim is based on fraud, and equity will therefore strip us of our legal defence. The only fraud which is charged, or can be pretended to be proved, is taking a grant of lauds, with notice »K* another claim-fed them. That is of no avail to jmvví'íú the bar of a legal estate in a Court of Law, according to the case of Meddick v. Leggett, so often referred to j and if it furnish a ground for the. interference of equity, the decision of that case does not protect the possessor, but only puts •him to She expense and delay of a suit in equity, instead of the shorter and cheaper remedy at law.

It. is surely a mistake to say that our statute operates directly on remedies only. If this be intended, it operates expressly and immediately upon the “ title and claim,” and the remedy ceases because the, right is gone.

It seems then dear, that the legal estate was barred by the statute t and this brings us to the enquiry, if the equitable or trust estate was thereby destroyed.

No new cases are brought forward by the opposite Counsel, but he has endeavored to escape from the force of those cited in the opening argument.

It is said by the Counsel, that in Fentland v. Stokess there were trustees to protect the inheritance ,* but can that circumstance have any effect, upon the decision ? — ■ Every lawyer knows that in settlements, trustees to support the contingent remainders, are intended not to protect the estate from the acts of strangers, but to prevent the ulterior contingent limitations from failing, by the forfeiture of the previous life estates, before such limitations have become vested.

It is said that the opinion of Sir Wiliam Grant, in the ease of Cholmonddy v. Clinton, was overruled when the same case came before Sir Thomas VlumvrP as .reported in £ Jac» and Walker-

Let us examine, that case and see if there was any dif ference of opinion between those two great Judges, upon the point to which I have cited it, and the only one material to this discussion.

The case will he sufficiently stated for the present purpose by saying, that the defendant entered into possession of certain mortgaged premises, claiming to be entitled to the equity of redemption, and with the assent: of the mortgagee, received the profits for more than twenty years, after which the Plaintiff filed his bill, alleging that in truth, the estate subject to the mortgage was his, and praying an account and relief. The question whether the Plaintiff or Defendant was originally-entitled, depended upon the construction of certain deeds of settlement; and at the hearing before Sir William Grant, that question was discussed, and it was also insisted by the Counsel for the Defendant, that whether the Defendant was originally entitled or not, yet he was then entitled, by the operation of the statute of limitations, which had barred the’Plaintiff’s right, and vested it in the Defendant. .

The Judge was of opinion, that there could be no such thing as a disseisin of an equitable estate, while the legal estate subsisted ; that a tortious act could not be the foundation of an equitable title, which might be barred by barring and excluding tiie estate of the trustee, but could never be transferred from one person to another^ He therefore directed a case, to take the opinion of a Court of Law upon the construction and effect of the deeds of settlement, (2 Mer. Rep. 171.) When the cause came on for further directions, Sir Thomas Plumer had succeeded to the office of Master of the Rolls, and the rase was again elaborately argued before him, (2 Jacob and Walker’s Rep. 1.) His Honor was of opinion that the effect of the deeds was not material to the decision of the cause, for that admitting the title to have been originally in the Plaintiff, he was barred by the statute of limita-uons, and the Defendant was then entitled, although the Segal estate was subsisting in a person, whose title both the Plaintiff and the Defendant admitted. But the po-sitian laid down by Sir William, Grant, that by barring and excluding the legal estate, the equity vías also des-ironed,” so far from being questioned? was distinctly admitted by the Counsel for the Befririaui, (2 Jacob and Walker?‘pages 18, 51,) by the Counsel for the Plaintiff, (page 62,) and by Sir Thomas Flumer, (vide pages 146, 147, 143, 153, 154») The real difference between these Judges was, that the former held that, to be the only mode of barring the equity, while ihe latter, admitting Chati to be one mode, insisted upon the existence of a separate independent bar of the equitable, without regard tc the legal estate — by which, In analogy to a disseisin üC law, the equity would be acquired by the possessor, s-íif-i the trustee hold the legal for estate him, as he before held far the rightful owner of the equitable estate»

iSeui it Isas been said by the Counsel on the other side, ¿hat Montgomery had only an equitable title, and that the statute operates only at law, and not upon equities j and Jones v. Pierson and Falls v. Torrance are cited. — ■ 'Phene were cases of pure trust, but it cannot be pretended that v;e were more than trustees by implication. In relation ¿o ike latter, the statute even in England applies, and the reasons, founded in the peace and welfare of the Community, are forcibly given by Sir Thomas Plainer, (?, Joe. and Wal. 139 to 149.) But our statute applies directly in its terms to the right, and bars it. The Jamaica statute, expounded by Sir William Grant, in Beck-ford v. Wade, is like our own, except that it contains an express exception of trusts. Yet Sir William Grant held that exception to be confined to direct trusts, and that the statute would operate in all cases of trusts by implication. His reasons for that opinion are worthy of profound attention, not only on account of the source from whence they come, but also for their intrinsic value and excellence.

Two other grounds are insisted upon why the Court s;10U](j disregard the bar of the statute.

1. It is said our title is founded in fraud — to which it would be a sufficient answer to say, that the statute operates upon the supposition that we have not a title — we rely upon the lapse of time, and not upon the title. But nhat is the fraud ? Taking our grant with knowledge of 'Plaintiff’s claim. Suppose it so — what follows ? that we cannot use the statute to protect us ? No — but we cannot use that title.

That fraud will vitiate every transaction is true ; if a title be fraudulently procured, it is not a good title; and therefore cannot be supported as such — but it may appear on its face to be a good one, and if the party having title neglect to assert his claim, it becomes by lapse of time, what it was not at first, to wit, a good and valid title.

If we had by a fraudulent contrivance, prevented the Plaintiff from proceeding to assert his right at law, that, I admit, upon a proper bill, might be ground to deprive us of the benefit of the statute. But no such case Is made by the bill, or shown in proof.

The position that fraud in acquiring a title, will deprive the party of the benefit of the lapse of time, is directly contradicted by Lord Kenyon, in the case of Bon-ney v. Redgard. (1 Cox, 145. J

It was contended in Cholmondely v.'Clinton, that a wrongful tortious act could not be the foundation of r. right in equity, ami hence would not be aided by the lapse of time; but Sir Th. Tinnier held otherwise, and his decree was affirmed in the House of Lords. See also Mr. Butlers argument in that case, and the cases cited by him, from page 47 to SO. (2 Jac. and Wal.)

2. The difficulties of the Plaintiffs, the unsettled state of the country, and the prejudices against their claim, soom after the war of the Revolution, it is insisted, furnish an answer to the statute.

3ut in the caso of Cholniondely v. Clinton, the Master of the Rolls held that neither poverty, ignorance, nor mistake will save a case from the bar of the statute'.--(2 Jac. and Wed. 139.)

And in Ben-yon v. Evelyn, it is expressly decided, that though the Courts of Justice are closed so that a party cannot bring his action at all, stiil the statute will rim against him, (Bridgman?s Rep. 324,J ami this case is cited with approbation in Beckford v. Wade, (17 Fes. 96.)

Lastly, it is urged that our grant is liable to be. set aside and vacated on the ground of fraud, and hence it is not colour of title, and for this is cited MeCree v. Alexander. To cite the case for this purpose, is making the Court say, what they expressly declare in that case they do not mean to say. But it is useless to prosecute this enquiry, because no case is made in the hill, or supported by the proof to raise the question.

Upon the whole, it is conceived that three points, at least, have been established — that the trust, if any, for the Unitas Fratrum, was void j that if good, the legal title passed to Montgomery, and has been barred by the statute of limitations, and that of necessity the trust is gone with it, and that if title to the land vested in the state, she held discharged of the trust, and so granted to m ; and it if? submitted, as the result from these propositions, that the former decree was erroneous, and ought to be reversed.

* To be hereafter reported.

* To be hereafter reported.

Henderson, Judge.

— I shall place this cause upon a cingle point — the defence set up under the statute of limitation, which depends upon the right of the Defendants to use in this Court, their grants from the state as colour of title. I consider it entirely unimportant to either party, whether the lands were granted to Cossart in trust for the Unitas Fratrum, and if so, whether the trust was valid. For if both propositions were decided in the affirmative, if Cossart has lost his estate, the cestui que trusts have lost theirs also — "their interest being s mere shallow of the legal estate, -vanishes when that ceases to exist, that is, when a different one arises, or in jthe language of the law, where another comes in the post †0 an es{ate in the lands. I do not. mean where the estate, to which the trusts were annexed, falls into other hands than those appointed by the creator of the trust to take it; as where the devisee in trust, dies before the de-visor, there the heir takes the estate subject to the trust. Tho law is the same as to tenants by the curtesy, tenant in dower, and the bargainee under a bargain and sale, who are said not to come in by the trustee, but by the law, their estates being the same with that of the trustee, and cast upon them by law, although not created by the act of the party., Nothing but the technical expressions, the per and the post, and not going beyond the letter of the maxim into the principle upon which it is founded, can for a moment sustain the idea, that those estates were detached from the trusts. But the lord who comes in by escheat above his tenant’s estate, the abator, the intruder, the disseisor, who thereby acquire a new estate, are not affected by the trust; and if as against them the trustee loses the legal estate, the trusts imme» mediately vanish, a: the shadow disappears when the substance is gone. The trusts remain dormant, until the legal estate is regained by the trustee, when they immediately spring up again. The Plaintiffs, or more properly those who claim Cossart’s estate, cannot attach a trust upon the estate of the Defendants, through the medium of the state, upon the idea, that she, upon the alienage of Cossart, succeeded to his estate, subject to the Moravian trust if any existed; and that the lands were then granted, subject to the same trusts.— For in reality, Cossart’s estate did not come to the state at all, neither by the revolution, nor by the confiscation acts, according to the principles adopted in the case of Campbell v. McArthur.

The. Plaintiffs equity is to have the grants of the De-jendaut surrendered up, as fraudulently obtained, both as against the state, and against them. It is shown that long before the 4th of July, A. I), 1776, the lands jn question, were granted by Lord Granville, the then pro-psieior, to Cossart; and that the Defendants with a knowledge of that fact, for rumor in Court is knowledge, entered and obtained grants ¡Tor them from the state, under our entry laws, as vacant ami unappropriated lands, in violation of both the letter and the spirit of those laws. I say that rumor is knowledge in this Court, if the rumor turns out to be correct. For although in this case, as the Defendants say, there was but a report, a mere rumor that the Moravians claimed these lands, which some pretended to believe, but more disbelieved, this rumor was notice $ it should have put the® ¡apon enquiry. And if the rumor turned out to be correct^ and the lands had been granted, whether to the Mora-vians or to others it is unimportant, for the fact of their having been granted, and not the names of the grantees, rendered the conduct of the Defendants fraudulent, they must take the consequences. They cannot say, that they were innocent purchasers, who had paid their money.— They took upon themselves to determine as to the truth of the report. The report turns out to be true. Equity ¡requires that they should abandon their designs, and their persisting in them, after the rumor was ascertained to be founded in fact, is conclusive, that had they thought their design would have succeeded, they would have made the attempt with a perfect knowledge of the fact. In fine, it was a game of hazard ; they adventured, and have lost. The report turns oat to be true; tiie lauds have been granted, and they must take the consequences. But the Defendants say they were not granted to the Moravians, nor to any one in trust for them | that Cos-•sari held to his own use and benefit; that if their design, was fraudaba!* it was against the Moravians,, and not against Cossart. It is no defence either in the civil or criminal code, that the blow was not designed to entire the person stricken, but another? neither is it in this The Defendants stand therefore before this Court, as having obtained their grants upon suggestions which were not only untrue, but which they knew to be untrue; they ask to be permitted to retain them. Upon what principle shall this be permitted ? For what purpose ? They tell us now to connect them with a seven years possession, and thereby bar the recovery of the Plaintiffs under that very title of which they had notice when they obtained their grants, and to defeat which, by some indirect means, was their original object. If compelled to give evidence against themselves, this must be their answer; for without foreign aid, their deeds were worthless. The lands had been previously granted. The grantor had nothing in them. Besides, they were obtained from a grantor to whom fraud cannot be imputed, and if in dealings with such a grantor, any exist, the consequences must be borne by the grantee. It appears to me, that to refuse our interference w’ould be to reward iniquity, not to redress a wrong.

It is to be observed that the State, ex mero motu, or at the instance of the party aggrieved, would have caused these grants to be surrendered up to be cancelled. When this bill was filed, a Court of Equity, by the well settled decisions of our Court, was the proper place to apply, for redress against a fraudulent grant. Judge Haywood, it is true, for some time struggled against this practice, contending that the proper redress was at law ; but he ultimately yielded.

If Earl Granville had granted, or rather passed to> Cossart an equitable title, and the lands had come to the State subject to the equity, and the State had made the grants to the Defendants with notice, as in this case, can ¿here be a doubt but that this Court would have made the Defendants trustees for the Plaintiffs ? — and where <-.h the difference? In reality there is none; it lies only ;in a name. In the one case they have the legal title-— in the. other the equitable. In the first case, they come into a Court of Equity, not for the legal title, but to protect it, to guard it from harm and injury, as if the boundaries are obscure, or the laud-marks wearing out— Equity will relieve by establishing them, and that upon the bill of one having the legal title. So also if a fraudulent deed has been obtained from the grantor, or from a stranger, and there is a probability of annoyance to him having the legal title. Equity will relieve by compelling a surrender of the fraudulent deed — Equity will remove every thing that improperly clouds or obscures a legal title, one great object of the Court being to give repose | to quiet and remove all fears and apprehensions arising from the fraud or iniquity of others, with regard, to property. All that is required to be shewn is, that, the fears are not idle, or imaginary, and that there ia improbability of harm.

Had this hill been ¡filed, calling for a surrender of these grants after the facts in relation to them had been established, ansi soon after they were issues!, the only possible defence which could then have been set up, would have been that the Plaintiffs apprehensions were groundless 5 that the grants were perfectly harmless $ for the Plaintiffs being the elder, and of coarse the better title, could wot he affected by them. To this it miglii then ¡be properly answered, as the event in this case has shown to be true, although the deeds aro fraudulent and void, yet they may be «sed to our annoyance. In the first /place, they cloud our title, and may injure us should we wish to sell. But worst of all, yon ¡nay connect them with a severs years possession, and bar our estate, 'Non may also, under coves* of them, perplex ns with a lawsuit for almost half a century. These are certainly Sot such idle fears, or imaginary injuries as would induce the Court to dismiss the bill, because the Plaintiff had not made oat a case of impending ham. If these anticipated injuries would be a sufficient reason for sustaining the bill, if filed immediately after tho grants we¡.e obtained, a fortiori, the reality is now sufficient ground for affording relief. The lapse of eight or ten year after our Courts were opened, before filing this bill, forms no defence, and more especially when in that short space of time, an attempt was made to obtain redress at law, and which failed, probably from the tom per of the times, for I imagine that no title derived from Cossart would then have been recognized. I feel, therefore satisfied, that this Court is bound to take from the Defendants their grants, and all benefits derived from them ; that they should be detached from the possession. In my mind, the possession set up under them by the Defendants, tends to weaken their case, as to retaining the grants. It shows in glaring colours the impropriety of permitting them to be retained, and settles the question as to the right of this Court to interfere. I have used thoughout this opinion the terms fraudulent, iniquitous, £fc. — I apply them in their legal sense only, not by any means intending to impute corruption or fraud in its ordinary acceptation to the Defendants j I use them for want of some milder terms.

I feel some difficulty in affirming the decree, on account of the place in which Montgomery's devisees stand before the Court. They unquestionably should have been Plaintiffs instead of Defendants; and it is difficult to conceive why they were not originally made Plaintiffs. It can be accounted for only from the ignorance of our Equity practitioners. But they are before the Court | r ., quenfly ,.cii mieras;. is hound. Their rights were as fully contested by the other Defendants, as if they were Plaintiffs. I cannot perceive that, any prejudice has arisen to any one of the parties on that account. * repeat again, that this Court does not take from the Defendants the benefit of their grants, because die LcjíI liad been before granted, hist fr-nuise in addi-íioa Í hereto, they knew that they had been granted. Their object was to deceive or defraud some wk*. it' not at first, most Certainly when they learnt that t'se Sands had been granted. They then well knew, that ;JI they acquired by Tirdr grants was taken fraudulent!'» '¡‘«¡ a some other person; and they cannot rightfully güín soy thing by if they are in fraud of the rights of others.

Hall, Judge.

— It appears to me that the ground ie tenable,, that the devisees at Montgomery, have a right to mleuin against the Defendants, in considering this question, no reliance is placed upon the trust supposed to be in the Unitas Fralrmi. I also admit that when a person comes in to an estate in the post, as the King by escheat, such estate is held free from a trust; but an equity of redemption is not such a trust.

In a Court of Chancery, an equity of redemption is defined by Sir M. Hale, to be an equitable right inherent in the land, binding all persons in ikv post, that is, persons coming in paramount to, and not under the title of themor»gagee. The lord of the mortgaged lands when he enters for an escheat, takes them, subject to the rights of the mortgagor. (1 Powell on Mort. 11, 337 — Hard. 479.)

Lord Nottingham say’s an equity of redemption charges the land, and is not a trust, in a Court of Equity. the equity of redemption is the fee simple of the land, (Ibid. 338, 11.) If then the land esrhcahd to the stale, subject to Montgomery’s rights as mortgagor, it was bound by those rights in the bauds of the grantees of the state, if it be admitted, that if the sand had escheated to the state and was theu conveyed to the Defendants, and their estate was not a con tin nance of the estate of the mortgagee’s, so as thereby to subject them to the equity of redemption, for the mortgagee’s estate was at an end, and that the state held the lands as the lord by escheat was supposed to do before he granted them at all, via, that he came in In the post, was in of another estate* and further if it be admitted that there vran no privity between that and the estate of which the mortgagee was possessed ; still he held them su|>jec(- to the equity of redemption.

The same remarks are applicable to a case where the lands do not escheat* as w here the King or the State seizes them without right, and grants them to another, the grantee comes in of a new estate, and holds in the post $ no reason can be given why he should not hold them, subject to the equity of redemption, as well as if they had escheated, and had then been granted. The principle is laid dowm as a general one, that the mortgagor can redeem against all persons coining in in the post, and the King by escheat, is only put as an instance. The reason assigned is, that when the money is paid, the mortgagor is placed in statu quo, the land having been only pledged for the money.

If then the lands of the Defendants are subject to the equity of redemption, is that right barred by length .of time ? In England, the right of the mortgagee is barred by twenty years adverse possession, by the express provision of the statute of limitations. The right of the mortgagor is barred by the same length of time in analogy to it. Here the mortgagee is barred by seven years adverse possession, by the act of 1715, (Revisal, chap. 2.) The mortgagor is barred by no time in analogy to that act, but only by twenty years, in analogy to the. rule of the English Chancery. On this point, I need make no remarks j I consider the question to be at rest. (Falls v. Torrance, 4 Hawks, 420.) It results then, that the mortgagee may be barred by seven years possession at law ; the mortgagor has twenty years to redeem in equity.

It is admitted, that the interest of a cestui que trust is dependant on that of the trustee in ordinary cases of trust, and if the trustee is barred by length offline, the trust is lost. But an equity of redemption is an inherent right in tlie ¡and, and binds She lord, or the state by escheat, as well as their erantee. And if the mortgagor had twenty years to redeem against the mortgagee, no reason can be assigned (as it appears to me,) w hy he should not have twenty years to redeem against the lord, or the state or their grantee; because the escheat to the King or the- State, and the grant by them to an individual, were acts over which the mortgagor had no centro], and bis rights on that account, ought not to be weakened.— Further, when it is said that the King holds escheated land subject to an equity of redemption, it is understood that he holds it in no manner more injurious to the mortgagor, than when it was held by the mortgagee $ and that consequently the grantees of the state in this case, take the land with the same burthen that existed, before it was granted to them. I therefore think In tills case, that the right of the mortgagor is not barred by lapse of time.

But it has been argued, that the mortgagee might have asserted his right at law against the Defendants, by bringing a suit for the land. It is true we now know lie might have done so, but the reasoning of the Judges in the case of Bayard v. Singleton, (Martin 58,) leaned to the position, that art alien to our constitution coaid sjot hold lands here j and this opinion was entertained by one of the most eminent Sawyers of that, day, (Judge Johnston) as appears by his opinion in the case of Den ex dem. of Stringer v. Phillips, (2 Hay. 158.) Indeed we see how fruitless the suit turned out to be, that was brought by Montgomery's trustee. If a suit has not beea brought by the mortgagee, the rights of the mortgagor are not to be injured on that account. It is not the case of a trust, which may be lost by the loss of the legal title ; but it is the case of an equity of redemption, inlie-rent in the land, where a bill will be sustained against noy person, if brought within twenty years.

An objection presents itself in this case to the form of proceeding. The devisees of Montgomery are not Plaintiffs, which they certainly ought to be, in the view 5 have taken of it: because it is principally for their benefit that a decree is sought against the Defendants. But to say the least of this suit, it is an extraordinary one ; at least, so far as relates to the time it has been depending., St appears, that a suit at law' was brought in Morgantori Superior Court sometime after the Revolutionary wary iu which a nonsuit; was entered in the year 1789. The present suit was commenced in the year 1793, not many years after a Court of Equity was first established in this State, < after the Revolutionary war. At that time, títere were doubtless but few of the profession who were well acquainted with Equity practice. The case has been brought, to this Court several times, and partially argued. This is the second time it has been argued on its mei’ifs. It has been argued at great length, and the Counsel for the Plaintiffs at each argument have taken the ground that the trust of the Dnitas Fratrum ought to be enforced. And in that view of the case, there cannot be the same objection to parties j because Benccein not; only represents the mortgagee, but also the interests of the TJnilas Fratrum. Aud admitting his pretensions to be well founded in the latter character, the deyisees of the mortgagor are properly made Defendants. This is Hot the case, however, in the view I take of it. Under all these circumstances, if a decree can be made which will reach the justice of the case, it ought to be done. The parties are all before the Court. It is the interest of the mortgagor and mortgagee, as well as their wish that a decree should be made. The case comes as fairly before the Court, and the interests of all parties can b© as well consulted, as if the devisees of Montgomery were Plaintiffs. The mortgagee as such, and not as repre-sensng the tTnitas Fratrum, prays for a decree, and h® interested in doing so. It is proper on his account-¿btei she mortgagor should bo put in possession of the ¡iaacl, and receive the profits , otherwise l¡e objects to the payment of the purchase money due to Cossart.

This view of the case steers clear of any injury to the BeSVisdanis, because if they are answerable to the devi-sees of the mortgagor in case they were Plaintiffs, they CEsnot he injured or placed in a worse situation, in case a decree is made against them on the same principles, in the present suit.

||| hope and think that this ease cannot, and will not be drawn into precedent, unless in cases marked with the same circumstances of delay and embarrassment, to which it has been subjected. Further delay would breed further litigation, and be productive of no good to either party'. My opinion therefore is, that, a decree should bo entered for the Plaintiffs, or rather that the former decree be affirmed.

Per Curiam.

— Let the petition be dismissed with í/OívtSo