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    Lasala and others vs. Holbrook.
    A person cannot be restrained from malting a reasonable improvement on his own premises, upon the ground that it cannot be made without endangering an edifice erected on the adjacent premises, if the owner of the adjacent premises does not possess any special privileges' protecting him from the consequences of such improvement, either by prescription or by grant from the person malting the improvement, or from'those under whom he claims title.
    The owner of land has a natural right to the use of the same in the situation in which it was placed by nature, surrounded and protected by the soil of the adjacent lots; and the owners of such adjacent lots have no right to destroy his land by removing these natural supports or barriers.
    Where a person, in the exercise of ordinary care and skill, in malting an excavation for the improvement of his own lot, digs so near the foundation of a house on the adjacent lot as to cause it to crack and settle, he will not be liable for the injury if such excavation would not have injured the ad* jacent lot in its natural state.
    Aliter as to ancient buildings or those which have been erected upon ancient foundations, and which, by prescription, are entitled to an exemption from injuries resulting from the improvements on the adjacent lots, or as to those buildings which have been granted in their present situation by the owners of such adjacent lots, or by those under whom they derived their title.
    This was an application to dissolve or modify an injunction Which had been granted by the injunction master- of the first circuit. The bill stated that the complainants were seized of certain lots in the city of New-York, adjoining Ann street, on which Christ’s church stands; which church was erected thereon more than thirty-eight years since. That the defendant was the owner of a lot lying west of the lots on which the church was built, and extending to within six feet of the west side of the church. That the defendant had commenced the erection of a building on his lot, which was intended to cover the whole lot, and to be six stories high; and that he was sinking the foundation of the building sixteen feet below the natural surface of the ground, and ten feet lower than the foundation of the church. That by excavating his lot, in the manner contemplated, the defendant would greatly endanger the church; and that the wall of the church, at one corner thereof, opposite which corner the excavation had been completed, had already settled so as to leave a considerable crack in the wall. That from the information which the complainants had obtained from persons skilled in such matters, and who had examined the premises at their request, they believed their church was in imminent danger of being destroyed, if the defendant was permitted to proceed with the excavation, in the manner in which he was going on. And they prayed for an injunction, restraining the defendant from proceeding with such excavation to the depth contemplated, and from removing any earth from the premises of the complainants, by causing the same to fall, by such excavation on his own lot. The injunction having been allowed by the master, as asked for in the bill, the defendant immediately put in his answer. And upon a petition stating these facts, and also that his workmen were thrown out of employ and that he was suffering great damage from the continuance of the injunction, he applied for and obtained an order for the complainants to show cause, at a short day, why the injunction should not be dissolved or modified. The defendant, in his answer, stated that he was proceeding in good faith to improve his own lot by erecting a- large building thereon, with a deep cellar which would be very valuable in" that part of the city; and that for the purpose of erecting a substantial wall for his own building, without injuring the property of the complainants, he had employed a skilful workman, who had already erected a large building with a similar deep cellar, in another part of the city. That he was proceeding with his excavation, and was building the wall as he progressed with all possible care and prudence. That he had advanced with the same about three fifths of the length of the church, and in that part where, from the nature of the soil, the excavation would be most likely to produce injury to the church. And the defendant denied that the wall of the church was in danger of falling, or of any other serious injury, from the proceedings of his workmen. He also attributed the crack in the wall, at the corner of the church, to the settling of the earth in the rear thereof, which had been used as a cemetery, from the weight of building materials placed thereon by permission of the complainants.

      July 22,

      J. Lynch, for the complainants.

      D. Lord,jm. for the defendant.
   The Chancellor.

I can readily believe, from the nature of the soil and from the great depth of the defendant’s intended excavation below the foundation of the church, that the complainants’ fears for the safety of their building are not entirely groundless; although the defendant alleges in his answer, and undoubtedly supposes there is no danger of serious injury to the walls of the church from the proceedings of his workmen. It is not, however, alleged in the complainants’ bill that the defendant is proceeding to improve his property in an unreasonable, or unusual manner, or with any intention of injuring their wall or building. Neither do they claim any particular privilege as belonging to their church, either by grant of the defendant, or those under whom he claims, or by prescription. This case, therefore, presents the question whether one person can be restrained from making a reasonable improvement on his own premises, because the same cannot be made without endangering a modern edifice erected upon the adjacent premises of another. Sic utere tuo ut aliemm non lerdas, is a maxim well known to our law; but the propriety of applying this maxim to a particular case sometimes becomes a question of great doubt, from the difficulty in determining what is a legal injury to the property of another. The erection of a new mill, in the immediate vicinity of one which had been previously erected by another person, might in fact destroy a moiety of the value of his mill, yet this maxim could not be properly applied to such a case. The owner of the first mill sustains no legal damage, because at the time lie erected it he knew his neighbor had a legal right to make asimilar improvement on his own premises, of which he could not deprive him by the previous erection. But if the first mill was supplied by a stream of water which had been accustomed from time immemorial to flow in a particular channel, the owner of the second mill could not divert the stream from its accustomed channel, although done on his own land, so as to deprive the first mill of its necessary supply of water. . The diverting of the water in such a case would be a legal injury to the owner of the first mill; because it would deprive him of a natural right, which was paramount to the right of his neighbor to an artificial use of the water. Upon examining the several cases on the subject, the same principles appear to have been applied to injuries arising to the owner of one lot by the artificial use of an adjacent lot by its owner. I have a natural right to the use of my land in the situation in which it was placed by nature, surrounded and protected by the soil of the adjacent lots. And the owners of those lots will not be permitted to destroy my land by removing this natural support or barrier. Thus it is laid down by Rolle, that I may sustain an action against a man who digs a pit on his own land so near to my lot that my land falls into the pit. (2 Rol Abr. 565, l. 10.) But my neighbor has the right to dig the pit upon his own land, if necessary to its convenient or beneficial use, when it can be done without injury to my land in its natural state. I cannot, therefore, deprive him of this right by erecting a building on my lot, the weight of which will cause my land to fall into the pit which he may dig in the proper and legitimate exercise of his previous right to improve his own lot. (1 Sid. Rep. 167. 2 Roll. Abr. 565, l. 5.) These principles were fully recognized by Ch. J. Parker, in the case of Thurston v. Hancock, (12 Mass. Rep. 223,) where it was held that the defendants, who had excavated their own lotto the depth of thirty feet below the foundation of the plaintiff’s house, were not liable for having thus placed the house in a dangerous position; but that the plaintiff was entitled to recover for the damage, if any, which had been occasioned by the loss of his soil in consequence of such excavation. And in the case of Panton v. Holland, (17 John. Rep. 92,) where the defendant, in the exercise of ordinary care and skill in mating an excavation for the improvement of his own lot, had dug so near the foundation of the plaintiff’s house as to cause it to crack and settle, it was held he was not liable for the injury. From the recent English decisions it appears that the party who is about to endanger the building of his neighbor by a reasonable improvement 'on his own land, is bound to give the owner of the adjacent lot proper notice of the intended improvement, and to use ordinary skill in conducting the same; and that it is the duty of the latter to shore or prop up his own building, so as to render it secure, in the mean time. (See Peyton v. The Mayor of London, 9 Barn. & Cress. 725. 4 Man. & Ry. 625, S. C. Walters v. Pfeil, 1 Moody & Malk. 362. Massey v. Goyder, 4 Car. & Payne, 161.) There is another class of cases, however, where the owner of a building on the adjacent lot is entitled to full protection against the consequences of any new excavation or alteration of the premises intended to be improved, by which he may be in any way prejudiced. These are ancient buildings, or those which have been erected u pon ancient foundations, and which by prescription are entitled to thejpecial privilege of being exempted from the consequences of the spirit of reform operating upon the owners of the adjacent lots; and also those which have been granted in their present situation by the owners of such adjacent lots, or by those under whom they have derived their title. (Palmer v. Fleshees, 1 Sid. 167. Cox v. Matthews, 1 Vent. 237, 239. Story v. Oden, 12 Mass. Rep. 157. Brown v. Windsor, 1 Cromp. & Jer. Rep. 20.)

In the case under consideration, the complainants’ church was not entitled to any special protection against the consequences of the present proceedings of the defendant, either by prescription, or by grant from the owners of the adjacent lot upon which the excavation was going on. And as the defendant and his workmen are in the exercise of reasonable care and skill in the erection of his building, and in laying the foundations thereof, the complainants must adopt such course as will secure their church against the dangers to which it is ■exposed. They are not, therefore, entitled to the aid of this court, to suspend the operations of the defendant; and the injunction must be dissolved.

         See Wyatt v. Harrison, (3 Barn, & Adolph. Rep. 871.)


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Van Rensselaer vs. Brice.
    Where a lessee is entitled to a right of estovers, for the use of his farm, in the unappropriated lands of his landlord, if the latter makes a colourable lease of all the unappropriated lands in the vicinity of the farm for the purpose of defeating the right of estovers, the lessee of such farm may resort to other lands of the lessor which are more distant, and where the wood and timber is much more valuable. But in ordinary cases, the taking of estovers of valuable timber, and at a great distance from the premises to which the right of estovers is appurtenant, would be deemed an unreasonable exercise of the privilege. It is therefore not impertinent in an answer to state the colourable lease as an excuse for the taking of the estovers upon such other premises of the landlord.
    If the matter of an answer is relevant, or can have any influence in the decision of the suit, either as to the subject matter of the controversy, the particular relief to be given, or as to the costs, it is not impertinent.
    An exception for impertinence must be supported in toto; and if it includes any part of the answer which is relevant and proper, the exception must fail altogether.
    August 6.
    This cause came before the court upon exceptions to a master’s report, allowing certain exceptions taken by the complainant to the defendant’s answer for impertinence. The bill was filed for the purpose of restraining the defendant from cutting wood upon certain lands, in the manor of Rensselaerwyck, which were alleged to belong to the complainant. The defence set up by the answer of the defendant was, that the lot upon which he had cut and was continuing to cut wood at the time of the filing of the complainant’s bill, was a part of the common lands of the manor. That such lot had been fraudulently conveyed to the complainant, for the purpose of depiiving the defendant of his right of estovers for building, fencing and fuel, as appurtenant to a farm of the defendant in said manor, held under a lease from the former proprietor of the manor. That the defendant was entitled to such estovers from the unappropriated lands of the manor; and that the alleged trespass was only the exercise of the right on his part to take estovers for building, fencing and fuel for his farm. The defendant admitted that his farm lay in Bethlehem, and that the wood and timber was cut in Troy, thirteen miles from such farm. But he alleged, as reasons for cutting at the place specified, and in such quantities, that he had ascertained that all the lands in the vicinity of his farm were appropriated; and that it had been the practice of the proprietor of the manor, as soon as the defendant found any unappropriated lands and began to take estovers from the same, to dispose thereof in such a way as to defeat the right of the defendant. That he therefore concluded to cut wood enough at once for the use of the farm for two or three years. That in cutting the quantity he did, it was not his intention to abuse the privilege granted in the lease under which he claimed, but merely to provide against the attempts of the present proprietor of the manor to defeat altogether the effect of the grant, by the numerous shifts and stratagems he had resorted to, and which the defendant bad been informed and believed he intended to resort to, as often as the defendant should attempt to exercise his right of taking estovers. The defendant further charged that one mode which had been adopted by the proprietor of the manor to effect his purpose, in that respect, had been by making sweeping grants of the unappropriated lands in the man- or to different members of his own family, and which grants were intended to have no other effect than to defeat and destroy the defendant’s right to take estovers, and the rights of other proprietors of the manor claiming under leases similar to his. The complainant’s first exception embraced the whole of this part of the answer, commencing with the allegation that it was not the intention of the defendant to abuse the privilege granted in the the lease under which he claimed, &e.
    The defendant further stated, in his answer, that he had been informed and believed, and so charged the fact to be, that in 1819, S. Van Rensselaer, the present proprietor of the manor, executed to his son, S. Van Rensselaer, junior, a general lease of all the unappropriated lands in the towns of Rensselaerville, Berne, Guilderland and Bethlehem, for the term of seven years, which term was afterwards extended ten years longer. That the lease was executed for the express purpose of depriving the defendant and other tenants of the manor who held under leases similar to the defendant’s, of their right of estovers on the common or unappropriated lands in those towns. And that under his lease, 8. Van Rensselaer," junior, had been in the habit of prosecuting the defendant and other tenants, whenever they attempted to exercise their right to take estovers from such unappropriated lands, in either of those towns; and by that means he put the defendant to great trouble and expense, and compelled him to resort to other unappropriated lands in the said manor, at a great distance from his farm, to procure estovers of wood and timber. To this part of the answer the complainant also excepted, for impertinence. Both exceptions having been allowed by the master, the defendant excepted to his report.

      J. T. B. Van Vechten, for the complainant.

      H. G. Wheaton, for the defendant.
   The Chancellor.

For the purpose of determining whether those parts of the answer to which these exceptions relate are impertinent, the part of the answer which charges the conveyance to the complainant to be fraudulent as against the defendant’s claim to estovers, as well as every other part of the answer, must be taken as true. And each exception should have been overruled, if any part of the answer embraced in such exception was pertinent, or necessary to the defence of the defendant. An exception for impertinence must be "supported in toto ; and if it include any passage which is not impertinent, it must fail altogether. (Wagstaff v. Bryan, 1 Russ. & Myln. Rep. 30.) From the answer, it appears that the defendant, as the assignee of the lease to Slingerland, given in 1767, was entitled to estovers, for building, fencing and fuel, in.the lands of the manor which were not fenced or particularly appropriated or demised by the proprietors thereof ; and that the conveyance to the complainant was without consideration, and made for the sole purpose of defrauding the defendant of his right to estovers. Notwithstanding the alleged fraud in this conveyance, however, it was valid as between the parties thereto; and the complainant is entitled to the same rights that the proprietor of the manor would have possessed if the conveyance had not been made. One of those ' rights was, that the privilege of taking estovers should be exercised in a reasonable and proper manner. It would be an unreasonable and unconscientious exercise of the power of taking estovers, if they could conveniently be obtained in the vicinity of the defendant’s farm where the value of wood and timber was comparatively little, for him to resort to the complainant’s land near the city of Troy, where wood and timber were much more valuable. And unless some special reasons existed which rendered such a proceeding necessary, the defendant would not be authorized to take estovers for two or three years in advance. He was therefore bound to state the facts which rendered such a proceeding on his part proper, and consistent with the just rights of the complainant. But if, as the defendant alleges, the proprietor of the manor was endeavoring to defeat his right, by colourable leases to members of his own family, and had actually leased all the common lands in the immediate vicinity, it was a sufficient excuse for what was an unusual, and apparently a vexatious proceeding on the part of the defendant. Although the lease of all the unappropriated 'lands, in the neighborhood of the defendant’s farm, may have been void as against him, yet he was not bound to subject himself to the costs and expenses of an interminable litigation, by exercising his right to taking estovers from such lands; and he might resort to other unappropriated lands in the manor, where no such difficulty was supposed to exist. If the matter of an answer is relevant, that is, if it can have any influence whatever in the decision of the suit, either as to the subject matter of the controversy, the particular relief to be given, or as to the costs, it is not impertinent. Testing the allegations of the answer embraced in these exceptions by this rule, I cannot say they are wholly unnecessary and irrelevant. The exceptions to the report of the master are therefore well taken; and the exceptions for impertinence must be disallowed.


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    Bogardus vs. Trinity Church.
    A plea is not rendered double by the mere insertion therein of several averments, that are necessary to exclude conclusions arising from allegations, which are made in the bill, to anticipate and defeat the bar which might, be set up in the plea.
    Where the complainant states a variety of matters in his bill, which, if admitted to be true, would be evidence to counter-prove the allegations of the plea, it is necessary to negative such matters, by general averments in. the plea, and to support the plea by an answer as to such matters.
    Upon the argument of a plea, every fact stated in the bill, and not denied by the averments in the plea and by the answer in support of the plea, must be taken as true.
    Where issue is taken upon a plea, if the truth of the matters pleaded are establishedj the suit will be barred, so far as the plea extends.
    A defendant is bound to support his plea by an answer as to those circumstances, stated in the bill, which, if admitted to be true, would be evidence to counter-prove the plea.
    In setting up a defence under a public statute, it is not necessary, either in a court of equity or law, to set forth the statute in the plea. It is sufficient to state the facts which are necessary to bring the case within the operation of the statute, and to insist that upon those facts the plaintiff’s right or remedy is at end.
    On the settlement of a new territory by a colony from another country, the colonists carry with them the general laws of the mother country, which are applicable to the situation of the colonists, and such general laws become the laws of the colony, until they are altered by common consent or by legislative enactment.
    Where a corporation received a grant of land from the crown of Great Britain, in 1705, and immediately entered by virtue thereof, claiming title to the whole premises, under the grant, adverse to the whole world, and continued such adverse possession under claim of right for sixty years; It was held, that such corporation acquired a perfect title to the premises covered by the grant, as against the rightful owner.
    Where one of several tenants in common conveys the entire premises held in common, and the grantee enters into possession under the conveyance, claiming title to the whole premises, such possession is adverse to the co-tenants of the grantor, and at the expiration of the period of limitations, their right will be barred.
    August 6.
    This case came before the court upon the defendants’ plea. By the complainant’s bill, he claimed as one of the descendants of Annetje Jans, or Bogardus, formerly wife of the Do-mine Everardus Bogardus, one undivided fifth part, of one sixth, of sixty-two acres of land, in the city of New-York, once known by the name of the Domine’s Bowery, confirmed to the children and heirs of Annetje Jans, by Governor Nicholls, in 1667. The bill alleged that the one undivided sixth part of the premises belonged to Cornelius Bogardus, the ancestor of the complainant, at the time of his death, in 1707, and was held by him as tenant in common with the corporation of Trinity Church. That upon his death, that sixth descended to his oldest son, the grandfather of the complainant, who -died in 1759, intestate. That on his death, it descended to the father of the complainant, who died intestate in 1794, leaving the complainant and his four brothers and sisters his heirs at law; by which the complainant became entitled to one fifth of that undivided sixth, as tenant in common with Ms brothers and sisters and the corporation. The bill further stated, that in 1705 the corporation went into possession of the premises, claiming the same under a conveyance, called a deed of transport, from a part of the children and heirs of Annetje Jans to Col. Francis Lovelace, executed in March, 1671, which only conveyed to him an undivided portion of the premises, and under the mesne conveyance of a grant from the crown of Great Britain, made in 1705; whereby the corporation became a tenant in common with and trustee for Cornelius Bogardus the elder, and subsequently for his heirs at law and their heirs. And that the corporation had received a part of the rents and profits of the premises in trust for him and them, from the time of such entry, in 1705, down to Che fifing of the bill in this cause. The complainant, in his bill, further alleged that, in 1785, the corporation, by a committee duly authorized for that purpose, made its claim in writing to the premises under the deed of transport to Colonel Lovelace, and through the mesne conveyance of the grant from the crown. The complainant further stated that the corporation had sold certain parts of the premises and received large sums on such sales, and had released other portions thereof, reserving the rent to itself; which rent it had received as tenant in common with Cornelius Bogardus and his heirs. And the complainant prayed a discovery of all the property of the corporation, and of the rents and income of the premises in question in tMs cause, and of the sales thereof; and for an account and payment of the one fifth.of one sixth of the rents and profits of the premises and of the pro- * x A ceecis of such sales, which had been received since the entry ^ corp0ration in 1705, or which might be due thereafter.
    The defendants, as to all the relief prayed for in the bill, and as to all the discovery asked for by the complainant, except so much as related to the supposed entry of the corporation, upon the premises called the Domine’s Bowery, under or by virtue of the deed of transport to Colonel Lovelace; and so much as related to the corporation being seized or possessed, or holding the premises or any part thereof, under the deed of transport, as tenants in common with the complainant or any of his ancestors; and so much as related to the corporation holding the premises as tenants in common with the complainant or his ancestors, under the deed of transport or the deed of confirmation from Governor Nicholls; and so much as related to the alleged receipt of the rents and profits, avails or proceeds, of the premises in trust for or to the use of the complainant, or his ancestors ; and so much as related to the seisin of the complainant or his ancestors of any estate or interest or share of the premises in common with the corporation, or to the taking of esplees or profits thereof by the father of the complainant; and so much as related to the written claim or communication stated in the bill to have been made by the committee of the corporation, in 1785, and the certified copy of the deed of transport enclosed therein, and to the authority of that committee; and so much as related to the intent of that written communication, pleaded in bar, that on the 23d of November, 1705, Queen Anne being in the possession and occupation of the premises called the Domine’s Bowery, and other lands in the city of New-York, and being in the receipt of the rents ai\d profits thereof to her sole and separate use and benefit, granted the same by letters patent, under the great seal of the province of New-York, unto the corporation of Trinity Church by its then corporate name, forever, in fee simple; that the corporation, under and by virtue of those letters patent, and not otherwise, entered upon the premises so patented, including the premises in question in this cause called the Domine’s Bowery, on the day of the date of such patent, and became seized thereof in its demesne as of fee, claiming by force arid virtue of that patent, and not otherwise, to be of right sole and exclusive owners of the same and of every part thereof in fee simple j and that the corporation, from that time continually down to the time of putting in such plea, continued in the sole and exclusive possession and seisin of the premises, claiming to have and to hold the same as the sole and exclusive owner thereof in fee simple; and bad during all that time been in the sole and exclusive receipt and enjoyment of the rents, issues, profits, avails and proceeds thereof, to the separate use of the corporation, claiming the right so to receive and enjoy the same ; and without having paid over or accounted for to the complainant, or those under whom he claimed title, any part of such rents, issues, profits, avails or proceeds; and without having held or possessed the premises or any part thereof, or any estate therein, or any rents, issues, profits, avails or proceeds of or arising out of the same, in common or undivided with, or as trustee of the complainant, or those under whom he claimed to have fierivded title ; and without ever having acknowledged or admitted that the corporation was bound, either at law or in equity, to pay over or account for any part thereof to the complainant, or those under whom he claimed ; and without having admitted or acknowledged, by the agents of the said corporation or otherwise, that the cómplainant, or those under whom he claimed to have derived title, had any estate, share or interest, in common and undivided, or any other estate in the premises, or in or to the rents, issues, profits, avails or proceeds of or arising out of the same. This plea was also supported by the answer of the defendants, as to all the discovery not covered by the plea and excepted in the commencement thereof; containing a general and particular denial that the corporation ever entered or claimed under the deed of transport, or under any of the children or heirs of Annetje Jans; or that the corporation was, or that by itself or its agents it ever admitted itself to be tenant in common with the complainant, or those under whom he claimed; or that it had received the rents, profits, avails or proceeds of the premises or any part thereof as tenant in common, or in trust, or for the use of the complainant or those under whom had admitted that he or they had any right or n premises, or the rents or proceeds thereof; or that w of the complainant ever took any esplees or profits them common with the corporation; or that either the complainan or his ancestors, or any descendant of Annetje Jans, ever entered upon and became seized of any estate or interest in the premises in common with the corporation; or that the committee of the corporation were authorized to admit, or ever intended to admit or to claim, that the corporation held or possessed the premises, or any part thereof, under the deed of transcript.

      B. F. ■ Butler fy B. A. Talcott, for the defendants.
    The plea put in by the defendants, if good, will protect them from any farther discovery, and will be a bar to all the relief asked for by the bill. It is now settled that the matters set up in this plea may be pleaded. (Beames, 3 to 7, 29, 30, 33. Mitford’s Pl. 241 to 244, 260 to 265, 271, 276, 298.) Adverse possession may be set up in an answer. It is better however to plead it, as this mode of making a defence saves expense. A plea reduces the matters in controversy in a cause to a single point. Here that point is the character of the defendants’ possession; the issue tendered is, that the defendants have held adversely to the title of the complainant, and those under whom he claims, since 1705. As the bill anticipates the defence and sets up facts to defeat it, the plea by general averments denies the facts so set up, and an answer in support of the plea has been put in. (Fith v. Courtney, Rep, temp. Finch, 336. Peacock v. Neils, Id. 266. Saunders v. Hord, 1 Chancery Rep. 184. Lowe v. Burrow, 3 Peer Williams, 262. Jermy v. Best, 1 Simon’s Rep. 373. Aggas v. Pickerell, 3 Atk. 224. Blewitt v. Thomas, 2 Vesey, jun. 669. Williamson v. Hadfield, cited in 1 McClelland & Young’s Rep. 321. Lake v. Thomas, 3 Vesey, jun. 17. Crow v. Tyrrel, 3 Mad. Rep. 179. Hony v. Hony, 1 Sim. & Stu. Rep. 568. Arnold v. Heaford, 1 M’Clel. & Young’s Rep. 331.) These cases show that this defence is properly made by plea. The bill does not allege that the ancestor of the complainant labored under any disability. There is a class of pleas of title only. (Beames, 254 to 256. Howe v. Duppa, 1 Ves. & Bea. 511. Gait v. Osbaldeston, Russell’s Rep. 158. Leigh v. Leigh, 1 Sim. Rep. 349. Marquis of Cholmondeley v. Lord Clinton, 2 Merivale, 171, 9. Turn. & Russ. 107, S. C.) A long peaceable possession may in equity be pleaded in bar to such a bill as the complainant’s. (Mitf. Pl. 219. Lube on Pleas, 232 to 236.) Whatever destroys the complainant’s right of action may be pleaded in bar. (1 Simon’s Rep. 58. Beames, 164.) The rules of equity pleading have been adopted in analogy to those which prevail at law. (Beames, 7.) The defendant’s plea is good, both in form and substance. It sets forth all the facts necessary to constitute a legal adverse possession. It avers that Queen Anne, on the 23d November, 1705, being in the possession of the premises in question, and in the receipt of the rents and profits thereof to her sole and separate use, granted the premises by letters patent to the defendants in fee simple; that the defendants entered under and by virtue of the said letters patent on the day of its date, claiming to be exclusive owners of the premises in fee simple; and that the defendants have, ever since their said entry, continued in the sole and exclusive possession thereof, claiming to hold the same as exclusive owners, and have during all that lime been in the sole and exclusive receipt of the rents and profits, without admitting or acknowledging the title of the complainant or his ancestors to any part of said premises, or to the rents thereof. This plea is supported by an answer as to all the discovery not covered by the plea. The adverse possession set up in the plea gives the defendants a perfect and indefeasible title to the premises in question, and bars all the right of the complainant, if he or his ancestors ever had any. The provision in the statute of 1704, which restricted the defendants to property of the annual income of £500, did not incapacitate the corporation from disseising or ousting the complainant or his ancertors. There is a distinction between an incapacity to hold property beyond a certain amount and that of a corporation to take by devise under a will. In the latter case, there is an entire want of power both to devise and to take, the prohibition being in the statute of wills. The sole authority to devise being derived from the statute of wills, a devise not authorized by that statute is absolutely void. But a grant to a corporation is not absolutely void; it is only voidable. Here the corporation had originally the capacity to take. The restriction as to the amount of property it was permitted to hold was strictly of a governmental character. The government alone could take advantage of a violation. It was like a grant to an alien. An alien can take and may hold land until the people interpose. The grantor cannot reclaim it. Whoever can take or hold by deed may take and hold by adverse possession. It has been decided that a monk who, being civiliter mortuus, could not hold real estate, might be a tenant to the pnecipe in a common recovery. (Thornby v. Fleetwood, 10 Mod. R. 114, and note.) When this corporation went into possession of the premises in question, the common law doctrine relative to corporations and their powers was in force in the colony of N. York. Corporations were then created by charter from the crown ; and they could at that time, at common law, hold real estate. Restrictions upon corporations as to holding real estate were imposed by the statutes of mortmain. The general result of these statutes was a prohibition against corporations holding real estate unless they obtained a license from the crown. (1 Kyd on Corp. 39, 41. 1 Bl. Com. 472, 6. 2 Kents Com. 227, 9. 2 Id. 268.) This license might be contained in the grant itself. A grant of land implies a license. Even a mere grant of land by the crown to a body of men has been held to create a corporation. (Mildmay v. Standish, Cro. Eliz. 35. 1 Kyd on Corp. 6, 52, 62, 63. Denton v. Jackson, 2 John. Ch. R. 320. Hempstead v. Hempstead, 2 Wendell, 109. Society for Prop, of Gospel v. Town of Pawlet, 4 Peters’ Rep. 502, 4.) A patent of land to an Indian and his heirs and assigns forever gives him the title, no matter what his civil condition and character may be, whether an alien or citizen ; and it gives him a right to transmit the land to his heirs. It is equivalent to a legislative grant. (Goodell v. Jackson, 20 John. Rep. 693. Jackson v. Lervey, 5 Cowen, 397.) The grant of 1705, of Queen Anne, was in itself a license to the defendants, as a corporation, to hold the lands granted. But the annual income of all the lands and personal property of the defendants did not exceed ¿£500, until long niter the title of the defendants to the premises in question became perfect, and the right of the complainant and his ancestors had become barred. Lord Coke laid down the rule, in giving a construction to the general statute of Elizabeth as to endowment of hospitals, that should the property granted subsequently rise in value, and in consequence of its appreciation exceed the amount prescribed in the restriction, the title of the corporation to the property granted would not be destroyed. (2 Institutes, 722.) Long previous to 1785, the complainant’s ancestor was barred, not only of his right of entry, but of his writ of right by an adverse possession of sixty years. The act of 1784, relative to this corporation, repeals the restriction contained in the statute of 1704, and authorized it to hold property of the annual income of ¿£5000. There is no allegation in the bill that the income exceeded ¿£500 previous to the year 1785. The English statute of limitations, of 21 James I, c. 16, was in force in this state when a colony. (Commonwealth v. Leach, 1 Mass. Rep. 61. Commonwealth v. Knowlton, 2 Id. 535. Report of the Judges, 3 Binney, 596.) And courts of equity have always considered the provision in that statute, which applied to rights of entry, and in which the period of limitation was twenty years, as .that by which they were bound. (Marquis of Cholmondeley v. Lord Clinton, 2 Jac. & Walk. 192.) For writs of right, parties were compelled to go to a court of law. (Hovenden v. Lord Annesley, 2 Sch. & Lef. 607. Elmendorf v. Taylor, 10 Wheaton, 152.) Colonists carry with them the laws of the mother countiy, and they are binding upon the colony without being re-enacted. (Boehm v. Engle, 1 Dallas, 15, 64.) The right of entry of the complainant’s ancestor was barred in 1725. Even if we admit that this corporation was a co-tenant with Cornelius Bogardus in 1705, it will not avail the complainant, as the rule is well established, that if one tenant in common enters claiming the whole to himself, and holds adversely for twenty years, he will acquire the title. A possession under a rightful claim is not necessary to give a perfect title. A mere claim of title is sufficient, although made under a defective deed. (Jackson v. Smith, 13 John. Rep. 406. Clapp v. Bromagham, 9
      Cowen, 551. Bradstreet v. Huntington, 5 Peters, 402. Culler v. Motzer, 13 Serg. & Rawle, 356. Prescott v. Nevers, 4 Mason, 326.) We stand in the same situation as if the crown had never originally granted the lands in question. Before the revolution, the fee was in the crown by right of sovereignty; and the defendants, holding as tenants in capite to the crown, could not hold in trust for any other person. (Blights lessee v Rochester, 7 Wheaton, 535. Soc. for Prop. of Gospel v. Town of Pawlet, 4 Peters’ Rep. 506, 7. Bradstreet v. Huntington, 5 Id. 439, 440, 1.) We claim title from the lord of the whole territory—the supreme owner. The defendants’ entry and sole possession, and exclusive receipt of the rents, and the omission of the complainant’s ancestors to make their claim, amounted to an ouster, and created an adverse possession even if the defendants originally held in common with the complainant’s ancestors. (Doe v. Prosser, Cowper’s Rep. 217. Jackson v. Brink, 5 Cowen’s Rep. 483. Jackson v. Whitbeck, 6 Id. 632. Jackson v. Tibbits, 9 Id. 241. Clapp v. Bromagham, Id. 551. M’Clung v. Ross, 5 Wheaton, 124. Van Dyk v. Van Beuren, 1 Caines’ Rep. 83.) Where one tenant in common conveys the whole estate as if he was the sole owner, such conveyance creates an adverse possession in the grantee who enters and claims under such conveyance. (Jackson v. Smith, 13 John. Rep. 406.) The grant of the crown in 1705, therefore, even if a tenancy in common then existed, created an adverse possession in the defendants. There could have been no trust in favor of the complainant or his ancestors; and the court'must hold that the statute of limitations is now a bar to any right which the complainant’s ancestors may have had. (Hovenden v. Lord Annesley, 2 Sch. & Lef. 630, 3. Beckford v. Wade, 17 Ves. 96. Dowling v. Foxall, 1 Ball & Beat. 195. Kane v. Rloodgood, 7 John. Ch. Rep. 111. Sherwood v. Sutton, 5 Mason, 143. Skirme v. Meyrick, 2 Comyn’s Rep. 711.) Wherever a demand is merely legal, a court of equity always applies the statute bar; and in all ¿ases of merely equitable demands, the court acts from analogy to law. (Prince v. Heylin, 1 Atk. 493. Bond v. Hopkins, 1 Sch. & Lef. 413. Hovenden v. Lord Annesley, 2 Id. 633. Marquis of Cholmondeley
      v. Lord Clinton, 2 Merivale, 171, 9. 2 Jac. & Walk. 1, S. C. Demarest v. Wynkoop, 3 John. Chan. Rep. 129. Elmendorf v. Taylor, 10 Wheaton, 168.) But independent of the statute of ,. . . , ' „ . . . . . . limitations, the mere lapse of time is a bar to the complainant’s title. (Marquis of Cholmondeley v. Lord Clinton, 2 Meriv. 171. Harmood v. Oglander, 8 Vesey, 117. Pickering v. Lord Stamford, 2 Vesey, jun. 280. Hercy v. Dinwoody, Id. 91. 4 Brown’s Ch. Cas. 639.) A court of equity always refuses to lend its aid to a party who has slept upon his rights, and where his demand has become stale. (Foster v. Hodgson, 19 Vesey, 184. Hodle v. Healey, 1 Ves. & Bea. 539. Roche v. Morgell, 2 Sch. & Lef. 724, 5. Langston v. Boylston, 2 Ves. sen. 109. Aggas v. Pickerell, 3 Atk. 225. Smith v. Clay, 3 Brown’s Ch. Cas. 639. Poster v. Hodgson, 19 Ves. 184. Bowers v. Cator, 4 Id. 91.) And if we can look back to the pleading in which the first fault was committed, we shall find that - ■the complainant’s bill does not show sufficient to entitle him to the relief prayed for. The cause is to be argued as if a demurrer had been interposed to the defendants’ plea. From the statements of the complainant in his bill, it appears that his title has been barred. The defence tends to one point— that of a continued adverse possession. This furnishes a foundation for the defence of the statute of limitations, as well as of a bar of the complainant’s title by lapse of time. There are oases where a statute bars a demand which would not be barred by mere lapse of time. (Poter v. Hubbert, 2 Chan. Cas. or Rep. 44. St. John v. Turner, 2 Vernon, 418. Pooley v. Ray, 1 P. Wms. 355. Deloraine v. Browne, 3 Brown’s Ch. Cas. 633. Hercy v. Dinwoody, 4 Id. 268. Jones v. Turberville, 2 Ves. jun. 13. Burke v. Crosbie, 1 Ball & Beat. 489. Earl of Egremont v. Hamilton, 1 id. 516, 531. Widdowson v. The Earl of Harrison, 1 Jac. & Walk. 528. Marquis of Cholmondeley v. Lord Clinton, 2 Id. 1. Hicks v. Cooke, 4 Dow’s Par. Rep. 17. Ray v. Bogart, 2 John. Cas. 432. Shaver v. Radley, 4 John. Ch. Rep. 310. Phillips v. Prevost, 4 id. 205. Livingston v. Livingston, 4 John. Ch. R. 294. Cohens v. Virginia, 6 Wheat. 281. Thomas v. Harvie’s heirs, 10 id. 146. Chalmer v. Bradley., 1 Jac. & Walk. 51.) The defendants can also call to their aid the doctrine of presumption. For 130 years, the defendants have been in exclusive possession, without any claim of title on the part of the complainant or his ancestors. From such a possession, for such a length of time, the court will presume a grant to the defendants from those under whom the complainant now claims title. (Starkie’s Ev. pt. 4, p. 1218 to 1232. Hillary v. Waller, 12 Vesey, 265. Jackson v. Lunn, 3 John. Cas. 109. Jackson v. M’Call, 10 John. 377. Jackson v. Moore, 13 Id. 513. Jackson v. Russell, 4 Wendells R. 548. Kingston v. Lesley, 10 S’erg. & Rawle, 383. Arnold v. Heaford, 1 M’Clel. & Young, 325. Hillary v. Waller, 12 Vesey, 251, 2. Holmes v. Coghill, 12 Id. 206, 7. Giles v. Baremore, 5 John. Ch. Rep. 550, 1. Jackson v. Lunn, 3 John. Cas. 117. Schauber v. Jackson, 2 Wend. Rep. 36. Doe v. Butler, 3 Id. 152, 3. Noble v. M’Micken, 9 Martin, 188, 9.) The law will presume a conveyance," from the length of possession, although the court should believe there had been none. (Giles v. Baremore, 5 John. Ch. Cas. 554. Livingston v. Livingston, 4 Id. 296.) Presumptions of law need not be pleaded. (1 Chitty’sPl. 226.) Presumption of a deed is matter of law. (Stoever v. Whitman’s lessee, 6 Binney’s Rep. 419.) The presumption of a grant, from a party out of possession, is raised where his conduct is such that it cannot be accounted for, except by supposing that he had conveyed to the party in possession. But for all the purposes of a defence to this suit, an adverse possession of one year suffices. This is not a bill in aid of a suit at law, or for discovery. But it is purely a bill for relief. The rule is, that where no action of account cannot be maintained at law, none can be maintained in chancery. And it is a settled rule at law that a tenant in common cannot maintain an action for an account against his disseisor. This bill, therefore, being for an account, cannot be sustained. Whenever the question in controversy is a legal question merely, this court will not interfere, until the title is established at law. (1 Institues, 2, a. 1 Selw. N. P. 1. 1 Jacob. Rep. 284. Coysgarne v. Jones, Amb. 613. 1 Jac. Rep. 349. Goodinge v. Goodinge, 1 Ves. sen. 232. 1 Vin. Abr. tit. Account, 185, pl. 9. 1 Atk. 321. Hutton v. Simpson, 2 Vernon, 724. Wilkin v. Wilkin, 1 John. Ch. 111. Clapp v. Bromagham, 9 Cowen, 530. 2 R. S. 317, § .1. Norton v. Frecker, 1 Atk. 524.) The complainant must bring the proper action at law to establish his title, before he invokes the aid of this court. This court will not try questions of title merely.
    It is objected that the plea does not deny that the amount of the income of the corporation exceeded 500 pounds. This, we insist, was not material. But even if it was, the omission does not vitiate the entire plea. A plea in equity may be good in part, and bad in part; and it will stand for what it is good. (French v. Shotwell, 4 John. Ch. 505. 5 John. Ch. 555, 569, S. C. 20 John. Ch. 668, S. C.) It is said the answer is not sufficiently explicit. An answer may be sufficient to support a plea, and still may be liable to exception, so far as it goes to the discovery. (Mitf. 3d ed. 241.) The plea does not overrule itself, by answering by negative averments what it professes not to answer. (Blewitt v. Thomas, 2 Ves. jun. 669. Appen to Beames, 337.) All the precedents of pleas to be found in Beames have been sanctioned by judicial decisions. A precedent like the present plea is there to be found. In the averments in a plea, only a general denial is necessary. (Kemp v. Pryor, 7 Ves. 245. Jones v. Pengree, 6 Id. 585. Goodrich v. Pendleton, 3 John. Ch. 397.) If the answer in support of a plea is not sufficient, it may be excepted to. (Jones v. Pengree, 6 Ves. 580, 584, 5. Beames, 344. Wallwin v. Lee, 9 Ves. 24. Willis’ Plead. 49. Goodrich v. Pendleton, 3 John. Ch. 393. Allen v. Randolph, 4 Id. 693.) A plea must cover all the matters of the bill which are not excepted. The plea here is sufficiently certain. It covers all which is not answered. It is always necessary to look into the bill to see the extent of the plea. (Howe v. Duppa, 7 Ves. & Bea. 511. Cunningham v. Wegg, 2 Brown’s Ch. Cas. 241. Beames, 337, 344. Blewitt v. Thomas, 2 Ves. jun. 669. Harley v. Russell, 2 Sim. & Stu. 244. Watkins v. Stone, Id. 564.) These cases show that this plea is sufficiently certain. The plea covers every thing in the bill, except the matters excepted in the introductory part of the plea, as to which there is a general denial in the plea and answer. Exceptions in a plea do not render it uncertain ; and immaterial matters in a bill do not require an answer. (Wing v. Murrells, 11 Price, 725. Morrison v. Turnour, 18 Ves. 182. Mountford v. Scott, 3 Mad. Rep. 37 or 56. Hicks v. Raincock, 1 Cox, 40.) All the facts in the plea converge to one point; it is not double. But although the facts in the plea tend to one point, still various reasons may be urged in its support. The plea contains substantially a denial of the power of the complainant to call on the defendants to account. Pleas which are directly negative are now held to be good. The defendant’s plea is a negation of a distinct affirmative proposition. The validity of such a plea never was doubted. (Beames, 126, 128, 129. Hall v. Noyes, 3 Brown’s Ch. Cas. 487. Lord Redesdale’s Trea. on Plead. 3d ed. 187, 8. Beames, 130.) A different rule would enable a complainant, by falsely alleging title in himself, to compel an answer from the defendant as to the circumstances of his whole title. The defendant has a right to meet the complainant at the threshold, and say he has no title ; as we have done in this suit, by denying that the complainant is a tenant in common with .the defendants. (Randal v. Head, Hardres’ Rep. 188. Marquis of Donnegal v. Stewart, 3 Ves. jun. 446. Phillips v. Prevost, 4 John. Ch. 214. Murray v. Coster, 4 Cowen, 641.) This rule is applicaple to a defence under the statute of limitations. (Drew v. Drew, 2 Ves. & Bea. 159.) The grant of Queen Anne was a sufficient colour of title, under which an adverse possession might commence. A corporation may be a disseisor. (Riddle v. Proprietors, &c. of Merrimack river, 7 Mass. Rep. 182, 6. Busk v. Bell, 16 East, 5. Lyman v. The White River Bridge Co., 2 Aiken’s Rep. 257, 8.) A disseisin may be either by fraud or violence. It may be without colour of title. (Brooke’s Abr. tit. Disseisin, pl. 65.) Where the king enters without title and grants, the patentee will be the disseisor, and not the -king. (Pignard v. Smith, 6 Pick. Rep. 172.) The grant of the queen contains the words give and grant, which import a warranty. The defendants’ possession is therefore one of the strongest cases of an adverse possession. An actual disseisin is not necessary to oust a tenant in common. Here the defendants entered under a grant for the entirety, claiming the whole estate to themselves ; which was inconsistent with the idea of there being any tenancy in common between the-defendants and any other person. (Bradstreet v. Huntington, 5 Peters’ Rep. 443.
      Clapp v. Bramagham, 9 Cowen, 551.) The statute of limitations need not be referred to in a plea. (Prince v. Heylin, 1 Atk. 493. Lawes on Pl. in Assumpsit, 723.) All that is necessary is to plead the facts upon which the statute operates. (Beames, 164. French v. Davidson, 3 Mad. Rep. 397. Jones v. Givin, Gilb. Eq. Rep. 224. Low v. Burron, 3 P. Wms. 265. Kane v. Bloodgood, 7 John. Ch. 113. Baylis v. Attorney General, 2 Atk. 240. Hovenden v. Lord Annesley, 2 Sch. & Lef. 607.) Twenty years adverse possession is sufficient to bar equitable titles. (Sugden’s Appen. 570.) The committee of the defendants, who sent the letter stated in the bill, acted without authority. The letter contains no admissions of any tenancy in common. The defendants’ title was complete in 1765, and nothing but a conveyance could restore it to the claimants. A tenant in common, receiving rent by, does not create such a trust as to take the case out of the statute of limitations. (M’Euen v. Girard, 2 Rawle, 315. Murray v. Coster, 20 John. Rep. 576. Wisner v. Barnet, 4 Wash. C. C. Rep. 631. Kane v. Bloodgood, 7 John. Ch. 119, 20. Brigham v. Eveleth, 9 Mass. Rep. 538, 540. Sargent v. Parsons, 12 Id. 149. Prince v. Heylin, 1 Atk. 493.) The rents cannot be separated from the land. Can the complainant recover the proceeds of that to which he has lost all title 1 Rent is incident to the reversion. Can a party lose the principal and retain the incident 1 (Frique v. Hopkins, 16 Mart. Lou. R. 212. Vin. Abr. tit. Account, D. a. pl. 7.)
    iL JF. Warner ty G. Sullivan, for the complainant.
    Pleas in equity are not favored. They are only proper where the matters in controversy can be brought to a single point. Unity is indispensable in a plea. (Mitf. 238.) We have been told that this is a plea of the statute of limitations, of a disseisin, of a presumption of a grant, and of lapse of time. Can it then be a single plea 1 The plea cannot be sustained as a plea of the statute of limitations; such a plea is never favored, because it is founded upon the idea of doing wrong. At law you are not permitted to amend a plea of this kind ; and the general issue will not be allowed to be withdrawn, in order to plead it. (Perkins v. Wright, 3 Har. & M'Hen. Rep. 327. Coit v. Skinner, 7 Cowen, 401. Hallagan v. Golden, 1 Wen

      dell, 302. Fox v. Baker, 2 Id. 244.) It does not appear by this plea, whether it is a plea of the statute of limitations, or of title by long possession. A plea of the statute of limitations must be strictly pleaded. It must be confined to the letter of' the statute. It must specify the number of years, to show it "is founded on the statute. (Dey v. Dunham, 2 John. Ch. R. 191. Goodrich v. Pendleton, 3 Id. 384. Hinsdale v. Miles, 5 Conn. R. 335. Hudsons v. Hudsons’ adm’r, 6 Munf. 356. Brown v. Jones, 2 Gall. 477.) At law, in a plea of the statute of limitations, the number of years which bars the plaintiff’s demand, are specified. There are two kinds of pleas in equity. The one brings forward new matter; the other is a negative plea, founded upon the bill. The latter makes a new case out of old matter. And to be good, it must be to the case made by the bill. The present plea excepts several matters in the bill as to which it does not extend. It divides sentences. A plea should divide topics of equity, not sentences. We make our case ; the defendants must follow us. This they have not done, as their plea is not to the case made by our bill. The exceptions in the plea render it uncertain. The plea tenders no issue. A plea must be such that the complainant can take issue on it. (Mitf. 240.) On a negative plea, the only matters in issue are the negative averments. (Thring v. Edgar, 2 Sim. & Stu. 274.) Here there can be no negative averments, as all the matters in the bill which are important, are reserved for the answer. A plea is bad, unless it makes a new case; if it does not, it only amounts to a demurrer. A plea, to be good, must be to the whole case made by the bill; to the discovery as well as to the relief. The negative averments of a plea must be to the facts which go to destroy the plea; and therefore it is, that parts of a bill cannot be selected to which no plea is made, and the rest pleaded to. This plea is not to the whole bill, not being to the whole discovery, but only to the relief. The discovery being ancillary to the relief, the not answering the discovery admits the right to it, and overrules the plea. The plea is bad, because it does not profess to answer the whole bill. - A plea must be a complete defence, per se. The averments of the plea must cover the whole case made by the bill, and the discovery must be co-extensive with the plea. (Hore v. Parker, 1 Cox’s Cas. 224. Roche v. Morgell, 2 Sch. & Lef. 721. Parker v. Alcock, 1 Young & Jer. 432. Bayley v. Adams, 6 Ves. 586. Attorney General v. Master, &c. of the Skinners Co., Mad. R. 203. Allen v. Randolph, 5 John. Ch. R. 693.) Every allegation in the bill not denied by the plea is admitted to be true. (Mitf. 198, 242. Watkins v. Stone, 2 Sim. & Stu. 572. Goodrich v. Pendleton, 3 John. Ch. R. 384.) The answer in support of the plea must be to the same parts of the bill as the negative averments. The answer here being to a distinct part of the bill from the plea, it does not support the plea. (Pennington v. Beechey, 2 Sim & Stu. 282. Mitf. 199, 241.) If the answer leaves the truth of the plea doubtful, the plea must be overruled for want of verity. The answer contradicts the plea. It also overrules the plea. It answers beyond the plea to matters excepted and not covered by the plea. If an answer in support of a plea goes beyond it, it overrules the plea. So an answer to matters, which the plea ought to cover and does not, overrules the plea. (Watkins v. Stone, 2 Sim. & Stu. 572.) Here, also, as the answer to the bill admits the right to relief, it for that cause overrules the plea. This is not a case for a plea. The plea alleges an entry under a grant. A grant disseises no one; it only operates upon the title of the grantor. (Cruise, 32, tit. Deed, ch. 6, sec. 43, 45, 47.) The king cannot be a disseisor. He does not pretend to know what he grants. His grants are set aside for mistake. Any recognition at any time in favor of one having the title, gives character to the possession. Subsequent to the recognition of the complainant’s title by the defendants, they could not acquire a title by possession.
    The case upon the plea is the only case before the court. Every thing not covered by the plea, and not included in the negative averments, is admitted by the plea. Several material matters in the bill are not denied in the plea. There must have been an actual disseisin by the defendants to acquire the right of Cornelius Bogardus. The plea ought to have denied his seisin. By not doing so, it admits that the legal and actual seisin was in him. The defendants must show an actuat ouster of the complainant’s ancestor, to make out an adverse possession. The defence set up is not the subject of a plea being matter of law. When the defendants entered, they entere¿ ag tenants in common with Cornelius Bogardus. The tenancy in common continued as long as they admitted the seisin of Cornelius Bogardus. They put themselves upon their long possession and exclusive receipt of the rents. There can be but one seisin; and the possession of one tenant in common is the possession of his co-tenants. The acknowledgment of the complainant’s title, contained in the letter of the committee of 1785, relates back to the time of the entry of the defendants. The restriction in the defendants’ charter disenabled them from ousting the complainant’s ancestor, or from acquiring title by adverse possession ; it also rebuts, the idea of the presumption of a grant. Such a presumption would be against law.
    . Where there is a clear case of equity, a bill will not be dismissed on the mere ground of the staleness of the claim. Even if the legal title is doubtful, the multiplicity of suits which would be necessary to recover the premises in question entitle us to come into chancery for relief. The defendants have received the rents as trustees. If the court has jurisdiction for one purpose, it has for all purposes.
   The Chancellor.

The complainant’s counsel have made several objections to the form of the plea in this case, which it is proper should be disposed of before I proceed to consider the question whether the matters alleged in the plea .are sufficient, in substance, to bar the complainant’s title to relief. The first objection to the plea, in point of form, is, that it is multifarious or double, and does not rest the defence upon a single point. I think this objection is untenable. It is the pleading of a double bar which constitutes duplicity in a plea. But a plea is not rendered double by the mere insertion of averments therein, which are necessary to exclude conclusions arising from allegations, in the bill, intended to anticipate and defeat the bar which might be set up in the plea. The object of the pleader, in the present case, appears to have been to rest his defence upon the point that the corporation entered into possession of the premises, as early as 1705, under a grant from the crown, purporting to convey the whole property in fee, claiming title to the whole; and that it had r. , . , , . . . , , . continued m the exclusive and uninterrupted possession under such adverse claim from that time down to the present, a period of 125 years before the commencement of the suit. But as the complainant had stated a variety of matters, in his bill, which, if admitted to be true, would be evidence to counter-prove the allegation of an adverse entry under claim -of title, and of an adverse holding, it became necessary to negative those matters by general averments in the plea, and to support the plea by an answer as to those matters. (Mitf., 4 Lond. ed. 240, 271. 1 Brown's Ch. Pr. 332, 338. Sanders v. King, Mad. & Geld. Rep. 65.) In the case of Bailey v. Adams, (6 Ves. jun. 593,) Lord Eldon doubted whether it was necessary to insert negative averments in the plea, as well as to support the same by an answer, denying all the matters stated in the bill as evidence to displace or defeat the bar set up by the plea; and, as was usual with him, in such cases, lie left the question undecided. But Lord Redesdale, whose opinion upon a case of equity pleading is always esteemed the highest authority, says: “Upon argument of a plea,every fact stated in the bill, and not denied by the answer in support of the plea, must be taken for true. The plea therefore to the relief, (of a stated account) ought to have averred that the accounts settled included all dealings between the parties ; that the accounts were just and fair, and that the balance as stated was justly due; and these averments ought to have been supported by an answer to the same effect,” &c. (Roche v. Morgell, 2 Sch. & Lef. 726.) Again; in his Treatise on Pleading, he says: “ Nothing can be in issue on the plea but what is contained in the plea; and every charge In the bill, not negatived by the plea, is taken to be true on the argument of the plea.” (Mitf. Pl., 4 Lond. ed. 243. See also Gilb. For. Rom. 58. 3 John. Ch. Rep. 391.) Indeed, it seems strange that any doubt should ever have existed on this subject; for it is well settled that when issue is taken upon a plea, either in the first instance, or after it has been allowed upon argument, if the truth of the matters pleaded is established, the suit is barred, so far as the plea extends. (1 Newl. Pr., 3 Lond. ed. 165. Gilb. For. Rom. 95. 1 Mitf, Pl.. 241) If, therefore, the defendant was not bound, by averments in his plea, to negative the allegations in the bill, inserted for the purpose of anticipating and displacing the bar, the complainant would frequently be compelled to rely upon the defendant’s oath, alone, for the evidence of the truth of such allegations; and he would have no opportunity to contradict that oath, under the issue joined upon the plea. If that course of pleading was adopted, the whole plea might be true, although the answer in support of such plea was absolutely false, and could be proved to be so, if an opportunity was afforded to the complainant for that purpose.

Again ; it is supposed by the complainant’s counsel that (he defendants have overruled their plea, by answering to certain matters covered by the same. By a reference to the commencement of the plea,’ however, it will be seen that it is pleaded as a bar to all the relief prayed by the bill, but is only pleaded as a bar to the discovery in part; and that the discovery, as to all the matters necessary to be answered to rebut the presumption that the corporation took possession of or held the premises, or any part thereof, as tenants in common with the complainant, or his ancestors, is expressly excepted. The' answer can only overrule the plea when it relates to matters which the defendant, by his plea, declines to answer, submitting himself to the judgment of the court, whether, if the allegations in the plea are true, he ought to be compelled to answer as to those matters. But here the defendants were bound to support their plea, by an answer as to the circumstances stated in the bill, from which it might be inferred that the corporation did not enter exclusively under the grant of Queen Anne, claiming title to the whole premises; and as to any other circumstances which would, if admitted, be evidence to counter-prove the plea, by showing that the corporation entered - and held the premises as tenant in common, and not adversely to the title set up by the complainant, or that the rents and profits, or a part thereof, were received as a tenant in common, or trustee for the complainant, or his ancestors under whom he claimed to have derived title. (San ders v. King, Mad. & Geldart's Rep. 64. Thring v. Edgar, 2 Sim. & Stuart's Rep. 281.) They have therefore, in making their defence by way of plea, very properly pleaded it in bar of the whole relief sought by the complainant’s bill, but only in bar of the discovery as to such matters as were not necessary to be answered and denied for the purpose of supporting the plea as a bar to the relief. The answer, then, as to these excepted matters, put in for the purpose of discovery merely, and in support of the plea which does not profess to cover that discovery, cannot overrule the plea, but it is entirely consistent therewith.

It is objected that the plea is not sufficiently supported. The only way of testing the sufficiency of an answer, in such a case, is to consider every allegation in the bill as true which is not sufficiently denied by the answer; and then to inquire whether, those facts being admitted, the plea is a sufficient bar to the claim of the complainant for relief. This objection, therefore, necessarily connects itself with the merits of the defence set up in the plea, and will be examined in that connection. I shall therefore proceed to consider the merits of this case as presented by the bill and plea.

In setting up a defence under a public statute, it is not necessary, either in this court or in a court of law, that the pleader should set forth the statute in his plea; or that he should allege the existence of a statute of which the court is bound to take notice judicially. It is sufficient for him to state the facts which are necessary to bring the case within the operation of the statute, and to insist that upon those facts the plaintiff’s right or remedy is at an end, or never existed. The court will then judicially notice the existence of the statute, and declare its legal effects upon the case as made by the pleadings. Although it is usual to set forth the statute in the plea, yet Lord Hedesdale, as well as Mr. Beames, have considered it unnecessary. And they both state that the substance of the plea consists in the averment of matters which are necessary to bring the case within the particular statute. (Mitf. 258. Beames’ Pl. in Eq. 164.) Indeed, it seems more appropriate, in this court, to plead the facts merely which bring the case within the operation of the principle of the statute, than to plead the statute, in terms, as a bar. The statutes of limitation which must govern this case, do not in terms apply to suits in equity. They only profess to bar legal remedies; although this court, whenever the complainant’s claim is founded upon a legal right, always acts in obedience to the rule prescribed by the legislature for the government of courts of law. At the time the corporation went into possession of the Domine’s Bowery under the grant from Queen Anne, in 1705, the law of limitation as adopted in England, by the statutes, 32 Henry 8, ch. 2, and 21 James 1, ch. 16, constituted a part of the law of the colony of New-York; being brought hither by our ancestors, who emigrated to this country from England, where these statutes were then in force, and settled in this state as an English colony. It is a natural presumption, and therefore is adopted as a rule of law, that on the settlement of a new territory by a colony from another country, especially where the colonists continue subject to the same government, they cany with them the general laws of the mother country which are applicable to the situation of the colonists in the new territory; which laws thus become the laws of the colony, until they are altered by common consent or by legislative enactment. (Blankard v. Galdy, 2 Salk. 411. 1 Howard's Col. Law Introd. 10. 5 Wendell’s Rep. 445. Boehm v. Engle, 1 Dallas’ Rep. 15.) But there might be a technical difficulty in pleading a statute of the mother country as the statute law of the. colony. The common law of the mother country as modified by positive enactments, together with the statute laws which are in force at the túne of the emigration of the colonists, become in fact the common law, rather than the common and statute law of the colony. The statute law of the mother country, therefore, when introduced into the colony of New-York, by common consent, because it was applicable to the colonists in their new situation, and not by legislative enactment, became a part of the common law of this province. (See Commonwealth v. Leach, 1 Mass. Rep. 60. The same v. Knowlton, 2 Mass. Rep. 534.) It was sufficient, therefore, for the defendants to. plead the facts which were necessary to bring their case within the common law of this state, without any reference either to the statute 32 Henry 8, or that of 21 James 1. The principle adopted by the first of these statutes was, that an adverse possession of sixty years was sufficient to bar any title or claim to real estate. That jf the plaintiff, or claimant, could not prove that either he or his ancestors, or those from whom he claimed to have derived his title, were in the actual possession or seisin of the premises, or of the rents, &c. growing out of the same, within the period thus limited he should be forever barred. And the latter act limited the right of entry of the claimant to twenty years after his title accrued ; with a reservation in favor of infants, and other persons who were under disabilities at the time their right of entry accrued. If the allegations in this plea are true, the corporation in 1705 received a grant from Queen Anne, who was then in the actual possession of the whole premises, and immediately entered, claiming title to the whole premises under that grant, adverse to the whole world; and has continued in such adverse possession ever since, under a claim of right. At the expiration of sixty years from that time, the right of the complainant’s ancestor,if he previously had any, was completely barred. The complainant’s counsel, however, have supposed it important to establish the fact that the corporation entered claiming under the deed of transport, as well as under the grant from Queen Anne. B ut as it is not alleged in the bill that the title which was vested in Colonel Lovelace and his heirs by that deed of transport was ever conveyed, either to the corporation or to the crown, I cannot see how a mere claim of a right to enter under that deed could make the corporation a tenant in common with Cornelius Bogardus; who, from the statement in the bill, could only have been a tenant in common with Colonel Lovelace, or his heirs, or assigns. Again; if it had been alleged in the complainant’s bill that the interest in the premises which was once vested in Colonel Lovelace, had been conveyed to the crown, previous to the grant of Queen Anne, so that it vested in the corporation under that grant, there would have been the same difficulty as to the advei'se possession. The deed of transport does not purport to convey an undivided interest in the property to the grantee, as tenant in common with any other person. On the contrary, it purports, upon its face, not only to convey the whole property, but to be executed by the attorney of two of the heirs, under whom the complainant now claims two eights of one sixth of the premises. The claim to that portion of the premises, I presume, is ma(je Up0n the ground that the person executing the deed of transport, was not in fact their attorney for that purpose. But for aught that appears in these pleadings, or in the deed of transport, Colonel Lovelace, at the time he took that conveyance, actually supposed the whole title to the premises was vested in the parties who were the grantors to him; and that William Bogardus was authorized to convey the interest of his brothers, Jonas Bogardus and Jans Roeloffson. If, therefore, Lovelace or his assigns entered under that deed of transport, claiming title to the whole, although they might in fact be only entitled to an undivided portion, as tenants in common, it would be a good colour of title to support an adverse possession. And it would be such an ouster of their co-tenants in common as to bar their right, at the expiration of the period of limitation as settled by the laws in force at the time such adverse possession commenced. In the case of Jackson v. Smith, (13 John. Rep. 406,) where the grantor gave a conveyance of a lot of land, describing himself as heir at law of the patentee, and his grantee entered into possession claiming the whole lot under that conveyance, although it was afterwards discovered that ' the grantor only owned one ninth part of the premises, as tenant in common with others, it was held, this was a good adverse possession to bar the right of the other tenants in common of the grantor. In the case under consideration, the grantors in the deed of transport describe the premises as their farm or bowery; which is certainly tantamount to a description of the grantor as heir at law of the former owner. So in the case of Culler v. Motzer, (13 Serg. & Rawle's Rep. 356,) the supreme court of Pennsylvania decided that where one tenant in common gives a deed of the whole premises, and the grantee takes possession under that deed, claiming title to the whole, it is a good adverse possession to bar the right of the other tenants in common. And by the decision of the court for the correction of errors, in the case of Clapp v. Bromagham, (9 Cowen's Rep. 530,) the law is now definitively settled, in this state, that the grantee of one tenant in common, of the whole premises, entering under such grant and claiming title to the whole, may set up the statute of limitations as a bar to the rights of his co-tenants in common. It is unnecessary, therefore, to inquire whether the allegation of the defendants that the corporation entered under the grant of Queen Anne, and not otherwise, claiming title to the whole premises, is equivalent to an absolute denial that the corporation entered claiming title under the deed of transport to Colonel Lovelace. Because, if the defendants had admitted that the corporation entered under both, claiming title to the whole premises, the result would be the same as a bar to the claim of the complainant. And if the crown actually derived its title to the premises under the deed of transport, either by escheat or otherwise, and the agents of the government were in the actual possession of the premises, claiming title to the whole under that conveyance, previous to October, 1700, although the defence would not be covered by the present plea, yet upon an answer insisting upon that fact, it would appear that the remedy of the complainant in this case was still more effectually barred by the act of the 30th of October, 1710. (1 Van Schaack's ed. of Laws, 82.) By that act it was declared that every person, or body politic or corporate, who by themselves, their tenants, or servants, or where his, or their ancestors, predecessors, or others under whom they claimed, had been seized to their own use, or had taken the rents, issues and profits of any messuages, lands, &c. in their own proper right, for the space of ten years before that time, and who should continue in possession, without any claim by actual entry and continued possession, or by suit prosecuted to effect, until the first of September, 1713, should forever thereafter be adjudged, deemed and taken to be the true, rightful and lawful owner of such messuages, lands, &c.; and might hold and enjoy the same, any claim, right, title, demand or pretence to the contrary notwithstanding.

I have not been able to discover that the letter of 1785, from the committee of the corporation to the agents of certain persons claiming another part of the church property, called the Domine’s Hook, can have any possible bearing upon the rights of the parties as to the present controversy. There is nothing upon the face of that communication from which it can be inferred that the committee intended to admit that the corporaj_jon eia"imed even the lands called the Domine’s Hook, under the deed of transport. As the corporation had been in the exclusive and undisturbed possession of that property for eighty years under Queen Anne’s grant, it had the right to retain that possession against every person who could not show a better title to the premises. It was, therefore, sufficient for the committee of the corporation to satisfy the agents of the claimants that their ancestors had conveyed their whole interest to Colonel Lovelace, without showing that the corporation had subsequently obtained the same title under its grant from the crown. They probably also fell into the error of supposing that the Domine’s Hook and the Domine’s Bowery were but different names for the same premises; and they therefore communicated the fact of the existence of this deed of transport as conclusive evidence that the claimants’ ancestors had divested themselves of all right to the lands then in controversy. As the whole property granted by Queen Anne’s patent had previously passed by the names of the Duke’s farm, the King’s farm, and the Queen’s farm, the committee may also have had reason to presume that a conveyance had been made from Colonel Lovelace to the Duke of York, before he came to the throne, and that the whole had subsequently passed to his successors as a part of the crown lands. But as the deed of transport described the premises, thereby conveyed, as the farm or bowery of the grantors, the committee had equally strong reasons for presuming that there had been a conveyance to the grantors from their co-tenants, if they were aware of the fact that there were other children of Annetje Jans, who had not joined in the deed of transport. There is, therefore, no reasonable foundation for the supposition that the committee intended to admit, or that they even believed the corporation ever was, in fact, a tenant in common with, the complainant or his ancestors, or with any other person.

Upon a full examination of the several questions which were so fully and ably argued by the counsel for both parties in this case, I have arrived at the conclusion, that the plea of the defendants is good in point of form ; and that the defence set up is sufficient, in law, to bar this suit of the complainant against the corporation. Indeed, it would be a matter of deep regret if the law was otherwise ; as the establishment of a different doctrine by the courts would unsettle and disturb the titles to much of the real property in those parts of the state where the recording acts have but recently come into operation. If a clear, uninterrupted and exclusive possession of land, for one hundred and twenty-five years, under a grant or conveyance purporting upon its face to be a valid conveyance of the whole property, is not sufficient to protect the occupant of the premises, against the claims of those whose ancestors may have once been owners of an undivided interest in the same, the titles to lands in those parts of the state are certainly very unsafe. For it would, in most cases, be found to be impracticable, after such a lapse of time, to trace out and establish a regular chain of title from every person who had once held an undivided interest in the premises. The limitation law, therefore, in such a case, is not only a proper but even a meritorious defence, against dormant claims.

The plea must be allowed; and the complainant’s bill must be dismissed with costs, unless he shall within twenty days pay the costs of the argument of the plea, and file a replication to the same.


text:
    Frelinghuysen & Bruen, trustees, &c. vs. Colden and others. Pelletreau vs. Frelinghuysen and others.
    Where mortgaged premises are sold under a decree of foreclosure, the purchaser is entitled to the assistance of the court in obtaining possession, as against the parties to the suit, or those who have come into possession under them subsequent to the filing of the notice of the commencement of the suit.
    But the court has no jurisdiction, by a summary proceeding, to determine the rights of third persons, claiming title to the premises, who have recovered the possession by legal and adverse proceedings against a party to the suit, under a claim of right which accrued previous to the filing of the bill of foreclosure.
    Where a person who was proved to ho insolvent was in possession of mortgaged premises, which were claimed by another, under a decree of foreclosure and sale to him, and the person so in possession filed a bill to redeem the premises, on the ground that he was not a party to the bill of foreclosure, the court directed a receiver to be appointed to receive the rents and profits of the premises pending the litigation, unless the complainant should elect to deliver up the possession, or give security for the rents and profits, or pay into court the mortgage money admitted to be due.
    igust 6.

      In May, 1829, C. R Golden purchased of the heirs of S„ Eldert a piece of land, in the town of Jamaica, containing about 54 acres, being a part of the miion race course, and gave a mortgage on the same to secure a portion of the purchase money. In July thereafter Golden gave another mortgage on the same premises to A. O. Spencer, to secure the payment of the sum of $1500. Golden also contracted with J. Cozine for the purchase of two pieces of land, the one containing fifteen acres, and forming a part of the race course, and the other being a farm adjacent thereto. On the fifth of August, 1829, Golden conveyed the 54 acres to C. C. Moore, and also assigned to him the contract for the purchase of the other two parcels of land. In the spring or summer of 1830, Cozine conveyed to Moore, and took from him a mortgage on the 15 acres, for $1000 of the purchase money, and another mortgage on the farm, to secure $5000 of the purchase money thereof. On the 12th of August, 1829, A. Burr recovered a judgment against Golden, under which J. Pelletreau afterwards became the purchaser of all Golden’s interest in these several pieces of land, on a sale thereof by the sheriff, in April, 1831. In June or July, 1830, Moore and Golden executed to Frelinghuysen and Bruen a mortgage on the same landb for the sum of $5500, part of which was advanced to A. O. Spencer, and the heirs of Eldert, for the amount of their respective mortgages ; which mortgages were at the same time assigned to Frelinghuysen and Bruen as a part of their security for the $5500. In December, 1830, Frelinghuysen and Bruen filed their bill, in the first of the above causes, to foreclose the three several mortgages, in their hands; and the mortgagors, together with Cozine, who held the prior mortgages on some part of the premises, were made defendants. But as Burr’s judgment was not supposed to be a lien on any part of the mortgaged premises, he was not made a party. After the filing of the bill, but before the sale by the master under the decree of foreclosure, Pelletreau perfected his purchase under the judgment, by taking a deed from the sheriff; and by a summary proceeding under the statute, against Golden the judgment debtor, obtained possession of the premises. Upon the sale under the decree, A. Dey, as the trustee of Haskins and Wells, purchased the fifty-four acre lot and the fifteen acre lot, constituting the Union race course, and Cozine purchased the residue of the mortgaged premises. Pelletreau then filed his bill, in the last of the above causes, against the parties in the first suit and the purchasers at the master’s sale, alleging, among other things, that he had a specific equitable lien upon the two pieces of land purchased of Co-zine, for monies advanced to Golden towards the purchase of the same; and that the judgment of Burr was also a lien on the fifty-four acre lot and on Golden’s interest in the other lots, the conveyance and assignment to Moore being fraudulent and void. He therefore claimed the right to redeem, upon payment of the amount due on the mortgages which were prior to the judgment of Burr, and upon the two subsequent mortgages, given to Cozine by C. C. Moore. A. Dey thereupon presented a petition to the court, stating the proceedings had in the foreclosure suit, and his purchase of the two lots constituting the union race course, and that Pelletreau had gone into possession, under Golden, pending the foreclosure suit, and ^at he refused to deliver up the possession of the premises according to the directions of the decree. The petitioner also stateq proceedings in the last entitled suit, and that the property was exposed to deterioration and loss, and that Pelletreau was destitute of property, and unable to pay the rents and profits of the premises or the damages which the petitioner might sustain by his continued possession thereof. The petititoner therefore prayed that the tenant of Pelletreau might at-torn to him, and that the possession of the race course might be delivered to him; or that a receiver might be appointed to take the management and control of the same; or that Pelletreau might give security to pay the rent of the premises and for the damage they might sustain while in his possession, in case the title of the petitioner should be established; or that he might have such other relief as might be just and equitable. On the part of Pelletreau an affidavit was read, showing that he went into possession pending the foreclosure suit by means of an adverse proceeding against Golden, and not under him. In the affidavit he also denied that he was totally destitute of property, as stated in the petition; but did not state any particular sum, or amount of property, to which he was entitled, over and above his debts. Burr also put in an affidavit, denying that he had any personal interest in the premises.

      B. F. Butler § B. W. Bonney, for the petitioner.

      W. Kent, for Pelletreau and A. Burr.
   The Chancellor.

Where mortgaged premises are sold under a decree of foreclosure, the purchaser is entitled to the assistance of the court in obtaining the possession, as against parties to the suit, or those who have come into possession under them subsequent to the filing of the notice of the commencement of the suit. (2 R. S. 191, § 152.) But this court has no jurisdiction, in a summary proceeding, to determine-the rights of third persons, claiming title to the premises, who have recovered the possession of the same by legal and adverse proceedings against a party to the suit, under a claim of right which accrued previous to the filing of the bill of foreclosure. In this case Pelletreau claimed a right to the possession of the premises under a title paramount to the rights acquired by the filing of the bill, against Col-den. And when he obtained that possession by due course of law, it related back to the recovery of the judgment, or at least to the issuing of the execution; so that he is not to be considered as entering under Golden, pending the suit, within the spirit and intent of that part of the decree which directs those persons who have come into possession, under a party, since the commencement of the suit, to deliver possession to the purchaser. In this case, if the only claim of the purchaser, to the possession of the premises, or to other relief in this court, depended upon the proceedings in the first suit, he would be left to his ordinary remedy, at law, by an action of ejectment against the person in possession. The petitioner’s claim to relief, if any, therefore, arises from the proceedings in the second suit, in which Pelletreau is a party as complainant. The owners of the mortgages which were given for the purchase money, whether before or after the j udgmen t of Burr,are entittled to a preference in payment, even if the conveyance and assignment from Golden to Moore was fraudulent; and Pelletreau must pay the amount due on those mortgages before he can be permitted to redeem. The petitioner, as the purchaser under the decree of foreclosure, became entitled to all the legal and equitable interest of the several parties to that suit in the two lots constituting the union race course. If Pelletreau redeems, he must, at all events, pay to the petitioner the amount of the $1000 mortgage to Cozine on the fifteen acres, and of the Eldert mortgage on the fifty-four acres, and also whatever may be justly due on the Spencer mortgage. During the controversy in this court as to the validity of the conveyance from Golden to Moore, it would be improper and unreasonable that the petitioner should be compelled to litigate the same question at law, for the purpose of obtaining the possession of the property and of recovering the mesne profits, if it should eventually appear that Pelletreau has no right to redeem, or if he should neglect to redeem after such right was established. He must therefore give up the possession to the purchaser, or give security to pay the mesne profits, and the damages the petitioner may sustain by his retaining the possession, if it should turn out that he has no right to redeem; or he must pay into court the amount of the Eldert and Cozine mortgages, which will belong to the petitioner in any event, even if all the allegations in the bill in the last cause should be established by the proofs. If this money is paid into court, it will dis'charge Pelletreau from any further claim for interest on that amount if he is permitted to redeem; and if it shall appear that he has no right to redeem, and that he is wrongfully withholding the possession from the petitioner, the mesne profits and damagss may be paid out of the money thus brought into court, and the residue will be refunded to Pelletreau. And in the mean time the fund may be invested for the benefit of whoever may be eventually entitled to the same. If Pelletreau shall not, within ten days after the entry of the order in this case, give to the petitioner’s solicitor a written notice of his election to comply with one of the conditions above mentioned, and actually comply with the same within twenty days thereafter, it must be referred to master Codwise, to appoint a receiver, and to take from him the requisite security. The receivership, however, must be without prejudice to the legal or equitable rights of Botts.

The agreement between the petitioner and Botts was a mere contingent arrangement, depending upon the result of the litigation between Pelletreau and the petitioner. It was not intended to deprive the latter of any of his rights or remedies as against Pelletreau. And from the very nature of the agreement, it cannot be consummated until the result of this litigation is known. It therefore forms no valid objection to the relief sought for by this petition. If Pelletreau elects to give security, the amount of the bond and the sufficiency of the sureties must be settled and approved of by the master; and upon the usual notice to the petitioner to attend upon the determination of those questions.