author: Swift, Ch. J. Smith, J. Gorrín, J.

text:
    Sumner and another against Child.

      New-Haven,

    November, 1818.
    THIS was an action of ejectment for certain lands in Woodstock, in the county of Windham. The cause was tried at Windham, September term, 1818, before Swift, Cii..!. and Edmond and Peters, Js.
    On the trial, the plaintiffs claimed litle to the lands demanded, under a sale, by order of the court of probate for Pomfret district, within which they lay, in pa\ ment of debts due from William Dudley, late of Roxbury in Massachusetts, deceased. William Dudley died, seised of the lands in question, at Roxbury, in 1786 ; administration on his estate was granted in Pomfret district, in 1814 ; the lands were there inventoried as part of his estate, in 1815 ; and were sold, by order of that court, in 1817. The plaintiffs produced no record or written evidence of the title of William Dudley to the demanded premises ; but they proved, that he was in possession from the death of his father, Thomas Dudley, in 1769, until his own death, in 1786, taking the rents and profits, and holding adversely to all others.
    The defendant, to shew that the lands did not belong to William Dudley, offered in evidence the letter of administration, granted on his estate, in Massachusetts, soon after his death, in 1786, with the inventory and settlement of his estate, asan insolvent estate ; in which inventory these lands were not included. To the admission of this evidence, the plaintiffs objected; but the court admitted it.
    The defendant claimed title under the levy of an execution, in the year 1814, in favour of Isaac Jacques, against Joseph Dudley, the son of William, who took possession, by his guardian, on his father's death. The defendant produced no record, or written evidence, of the title of Joseph Dudley : but claimed, that from the length of time, and various accompanying circumstances, which he had proved, the jury were warranted to presume and find a grant to the defendant* or those under whom he claimed. The court stated to the jury, that a man, by fifteen years adverse possession, could acquire a title to land ; and that from great length of time* with circumstances to render it probable, they might, to quiet men's possessions, presume and find a. grant; and then instructed them, that if they should find, that William Dudley
      had been in the adverse possession of the premises, for fifteen years, and that the defendant, had not proved such facts as would warrant them to presume and find a grant to those under whom he claimed, they must find for the plaintiffs ; but if they should find, that William, Dudley had not had fifteen years adverse possession of the premises, or if they should find a grant thereof to those under whom the defendant claimed, they must find for him.

      The inventory of an intestate estate, pan of the record of a courtofpro-bate in Massachusetts}, is not evidence to shew, that lands in Connecticut, not comprised in such inventory, did not belong to the intestate,
    A grant oflands, conferring an entire title, cannot be presumed from possession and Lngth of time alone.
    What circumstances furnish a presumption of a grant, is a question of law.

      The jury returned a verdict for the defendant; and the plaintiffs moved for a new trial, on the ground of a misdirection, and of the admission of improper evidence. This motion was reserved in the usual manner.

      Goddard and Cleaveland, in support of the motion,
    contended, 1. That the record of the court of probate in Massachusetts, was improperly admitted, to shew, that the lands in question did not belong to William Dudley. To give any relevancy to this evidence, it must be established, that an administrator, appointed by a court of probate in one state, is bound to inventory lands lying in another state ; else how can his omission to inventory them, form even the slightest presumption, that they did not belong to his intestate ? The reverse of this is well settled. Goodwin v. Jones, 3 Mass. Rep. 514. Riley v. Riley, 3 Day 74. Champlin v. Tilley, 8 Day 303. The subject-matter is strictly local; and a foreign jurisdiction can exercise no controul over it.
    2. That the charge was, wrong, in as much as it authorized the jury to presume an entire title to land, from length of time, without an adverse possession. Where the subject is within the statute of limitations, and there has been no adverse possession pursuant to that statute, the authorities have never gone farther than to presume a grant to complete an imperfect title. Eaton v. Sanford, 2 Day, 523. Beach v. Catlin, 4 Day, 284. 294. Keene d. Lord Byron & al. v. Dear-don & al. 8 East, 248. 262. & seq. Jackson d. MtDonald v. M'Call, 10 Johns. Rep. 877. S80. 3 Term Rep. 158. 12 Fes. jun. 251.
    3. That if there were other circumstances, in connexion with length of time, proper to go to the jury in aid of the presumption claimed, it was the duty of the court to state them to the jury, and to instruct the jury as to their legal effect. What circumstances will justify, er aid, the presumption of a grant, is matter of law. Stoever v. Lessee of Whitman, (> It inn. 416. See also the charge of Chambre, J. in Campbell v. Wilson, S East, 29T.

      Sherman and T. S. Williams, contra,
    contended, 1. That the probate record from .Massachusetts was properly admit' ted, on the ground of the compact formed by the four ,Veitv England colonies in 1648, which provided, that on the death of any known planter or settled in habitant, intesulr, administration should be granted, by the colony to v. Inch the deceased belonged, though he died in another colony, and that the administration being duly certified, should be of force for the gathering in the estate in the rest of the colonies. 2 Haz. Hist.Coll. 124. 3 Mass. Rep. 515. 3 Day, 79. By virtue of this compact, an administrator in one colony, was authorized “ to gather in” — i. e. inventory, and return to the court of probate —“ the estate” of bis intestate “ in the rest of the colonies.” The word “ estate,” is appropriate to express land. This compact does not stand on the footing of an ordinary statute, repeatable at the pleasure of the legislature ; but was binding upon the parties to it, until one of them, in 1807, refused to give it further effect. If, then, it was the duty of the administrator to inventory all the estate of bis intestate, whether in Massachusetts, or in Connecticut, and the inventory returned by him, and accepted by the court, omitted the estate in question, it afforded a fair presumption, proper for the consideration of the jury, that such estate did not belong to bis intestate. Besides, the probate record was admissible for another purpose, viz, to prove the death of William Dudley.

    2. That a grant of lands may be presumed, in cases not within the statute of limitations, from possession and length of time only. Bedle v. Beard & al. 12 Co. 5. Mayor of Kingston-npon-Hull v. Horner, Cowp. 102. 109. Roe d. Johnson & al. v. Ireland, 11 East, 280. 284. Goodlitle d. Parker v. Baldwin, 11 East, 488. Jackson d« McDonald v. M'Gall, 10 Johns. Rep. 377. 380. Jackson d. Gansevoorl ‡ al. v. Limn, 3 Johns. Ca. 109. 117. Bunce v. Wolcott, 2 Conn, 'Rep. 9.7. PhiU. Evid. 119. 2 Wins. Saund. 175. n. 2. The principle on which these decisions are founded, is that of quieting possession; a principle of peculiar importance in tins country. Cowy. 215. Mor is (he doctrine confined, in its application, to incorporeal hereditaments. Phill. Evid,
      ig4. n. (a), by Dunlap. It is obviously as important, that n mw, should be quieted in the possession of a farm, as of an , casement.
    S. That it was the peculiar province of the jury, to judge °f the cimnnstances accompanying the possession. Those circumstances are now to be considered as having been properly before the court, as no exception was taken to their relevancy. The court, then, left it to the jury to consider their weight. This is the course which has been uniformly adopted, in all the analogous cases. Archer v. Saddler, 2 Hen. & MunJ. 370. 377. Besides, if possession and length of time alone,'were sufficient to justify the presumption of a grant, the court, by instructing the jury, that the same possession and length of time, with other circumstances, were sufficient, neither helped the defendant’s claim, nor prejudiced that of the plaintiffs. That part of the charge, therefore, affords nó ground for granting a new trial.
   Swift, Ch. J.

In this case, it appeared, that the defendant, and those under whom he claimed, had been in possession of the demanded premises, more than twenty-eight years; and the court instructed the jury, that from great length of time, and accompanying circumstances, they were authorized to presume a grant; and the question is, whether this direction was- correct.

It has been insisted on, by the counsel for the plaintiffs, that an entire grant cannot be presumed. As this doctrine was never before heard of, it is proper to examine whether there can be any foundation for it. It appears, from unquestionable authority, to be a general rule, that grants, letters patent, a common recovery, and by-laws, may be presumed. It is no where said, that an entire grant cannot be presumed; or that nothing but what aids or confirms a defective, os* imperfect grant, can be presumed. The proposition, that grants may be presumed, is laid down in the most unqualified terms; and it may, with as much propriety, be said, that an entire deed cannot be proved, as that it cannot be presumed. Judge Butter says, in 3 Term Rep. 158. “ For the last two hundred years, it has been considered as clear law, that grants, letters patent, and records, may he presumed from length of time.” A jury may find a recovery on presump-iion. Lord Mansfield says, a by-law may be supported by usage, without any proof of the. existence, or loss of it, Cowp. 110. Lord Kenyon once said, that he would presume, not only one, hut a hundred grants, to support a long enjoyment. 11 East, 284. Tin's language does not look much like favouring the doctrine, that nothing but part of a grant can be presumed, or some circumstance to aid a defective grant. On the examination of particular cases, they will be found to be numerous, to prove, that entire grants may be presumed ; and there are few of any other description.

It has also been argued, with much confidence, that grants can be presumed of incorporeal rights only : but there is not the slightest foundation for this opinion. It is a clear prim ciple, that grants can be presumed of every kind of property. The rules are laid down, in the most unqualified manner, without any restriction or limitation ; and are equally applicable to real and personal property, to corporeal and incorporeal rights : nor can there be the least reason for such a distinction. Why not presume a grant of a corporeal, as well as of an incorporeal, hereditament? Indeed, the truth is, that every species of title can be presumed. If the law requires it to be by deed or record, these can be presumed, as well as a title by parol. A title to a personal chattel may be presumed. Suppose one should purchase a horse, without any witness to the bargain, and should use him as his own, for a number of years, wit!» the knowledge, and in the neighbourhood, of the vendor, without any claim on his partand then, the vendor should bring an action for the horse; though the purchaser could adduce no manner of proof of the sale, yet from such possession, under such circumstances, a jury would not hesitate to presume a sale of the horse. But to remove any doubt on this point, we need only to refer to the case of Goodtitle d. Parker v. Baldwin, 13 East, 488. That was an action of ejectment, to recover a freehold estate; and the court held, that it would have been competent for the jury to presume a grant against the crown, from fifty-live years possession, had there not been a statute prohibiting such alienation. Here, it was determined, that an entire grant might be presumed of lands, from mere length of time, where there was no statute of limitation.

It. íh further in pis fed on, that the eourt ought to hat* states! the length of time, and the circumstances of presumption, as matter oflaw, to the jury, ami not to liave submitted them as matters of c\ idence. How can a court state that as master of law, to the jury, which is really matter of evidence ? Though we commonly say, that the jury presume a grant, yet, in truth, they jfincf the grant, on presumptive evidence, in f he same manner as they find any other fact, on the evidence. They do not presume a grant, as matter of law, without weighing the evidence." The length of time, and accompanying circumstances, are the evidence on which they may, or may not, find a grant, charter, record or deed, according as they judge them sufficient, or not. Let the evidence be ever so clear, the court cannot tell the jury as matter of law, that they must find the verdict one way, or the other. It is the province of the jury, to decide whether they will believe it, or not 5 and, of course, it must be left to them ? and it may as well be said, in an action of assault and battery* that it is the dflty of the court to state to the jury, all the evidence in the case as matter of law, as it would be, in the case in question, to state to them the length of time, and accompanying circumstances, as matter of law.

But I do not rely on reasoning only. On examining the English authorities, there will not be found a dictum to countenance the opinion I am opposing. In the case of the Mayor of Kingston-upon-Hull v. Horner, Cowp. 102, 3. Mr. Justice Gould, in his charge to the jury, submitted to them, whether they could not consider the usage, from the year 1441, to the time of bringing the action, a sufficient ground to presume a grant of the duties. This was not stated to them, as matter of law, with a direction how they should find the verdict, but as matter of evidence, on which they were to find, as they thought proper. The direction was not only approved of, by the court of King’s Bench, but Lord Mansfield clearly lays down the principle, that presumption is matter of evidence to be left to the jury. In Powell v. Milbanke, cited in a note, Cowp. 103. Lord Mansfield left to the jury, whether, from two adverse nominations, and possessions under them, they would not presume a grant from the crown, of a right of presentation to the curacy in question. In the case of Roe d. Johnson & al. v. Ireland, 11 East, 280. the court of King’s Bench granted a new trial, because the judge told the jury, that, considering all the circumstances, he saw no ground to presume the enfranchisement of certain copy-hold lands by the crown ; for they said, he ought to have submitted the circumstances to them, to consider whether they would not presume a grant against the crown. In the case of Goodtitle d. Parker v. Baldwin, 11 East, 488. a very recent case, the judge, in his direction to the jury, told them, that they could not presume a grant against the crown ? but the court of King’s Bench granted a new trial, on the ground that the matter ought to have been left to the jury, who might have presumed a grant against the crown, unless there was a provision in a certain statute, to preclude it. In sundry cases cited in 2 Wms. Saund. 175, this doctrine is laid down, and it is denied, that length of time can he a positive, though it may he a presumptive, bar. In the case of Holcroft v. Heel, 1 Bos. & Pull, 400. Chief Justice Eyre held a possession for twenty-three years, without interruption, not as evidence to a jury from whence they might presume a grant, but as a complete answer, or bar, to an action for disturbing a market, by erecting another. This, however, is opposed to the whole current of authorities in England. But admitting it to be correct, that in cases where there has been a possession for more than twenty years, of an easement, and where there is no circumstance to rebut the presumption, the judge might tell the jury it amounted to a positive barj yet, I apprehend, the question might have been left to the jury, with perfect propriety, and does not, at any rate, operate against the general rule, adopted in the other cases mentioned, when such specific circumstances could not ha\ e been stated to the jury; for then they could not be matter of law, but must be left as matter of evidence. The cases, however, in East, are of a later date, and higher authority. In these cases, there seems to have been no contest respecting the facts and circumstances ; and yet, the court left them to the jury, to consider whether they could presume a grant. If, then, the court had assumed the prerogative, insisted on by the plaintiffs, it would have been a flagrant usurpation upon the rights and powers oT juries.

Perhaps it may be said, that the court should have staled to the jury, the circumstances from which they would a«h ise them to presume a grant. Rut it appears from the motion, this was done. It is true, these circumstances ace not detailed in the motion.; nor was it necessary : for the court are bound only to state the facts on which the questions °* arise, and not the evidence submitted to the jury: the court decide on the relevancy, and the jury on the weight, of the testimony. If irrelevant testimony is offered, the party, on objecting to it, can take the opinion of the court, and make it a part of the motion : but when proper testimony is admitted, the court are bound to submit it to the jury ; ami tin- party cannot move for a new trial, on the ground oí the insufficiency of the evidence, and require the court to state all the testimony, for the purpose of a revision in this Court. If this doctrine be admitted, in this case, it may be extended to every other case ; and the party moving for a new trial, may require ail the testimony to he stated, to determine whether it was sufficient,. Such an idea cannot be admitted for a moment. The evidence, then, was properly submitted to the jury; and this Court cannot, in any simpe, revise the question, whether the verdict was founded on sufficient testimony. - !

Again, it has been insisted on, by the counsel for the plaintiffs, that where the legislature has not prescribed length ol time, as a bar to a right, courts of law cannot interpose to create such bar. But the reverse of this proposition is true, It is, peculiarly, in cases where there is no statute of limitation, that the doctrine of presumption comes into operation. Lord Mansfield says, there are many cases not within the statute, where, from a principle of quieting possession, the court have thought the jury should presume any thing, to support a length of possession. Whenever there Is a statute of limitation, it is conclusive upon the jury, as a bar. Though the jury might have been satisfied, that the plaintiff had a good tille, or that the debt had never been paid j. yet, if the time prescribed by the statute has run, they are hound to find a verdict, for the defendant •, for there, time operates as a conclusive bar. Cowp. 108.

So, in the case of a prescription, which is founded in immemorial usage or possession, the jury will be concluded by length of time, if there could have been a legal commencement of the right; but this may be rebutted, by any written evidence, which proves a different: right from the one claimed by prescription : for where there is any written evidence, it will rebut any parol evidence to the contrary. Cawp. 109.

Where there is a statute of limitation, mere length of time, short of the period prescribed by the statute, can never warrant a presumption : for this would be to presume against the statute. Cowp. 114. Nor will a presumption of a grant be admitted, where it is against law. 11 East, 488. Nor where trustees would be guilty of a breach of trust. Rut though there is a statute, there may be circumstances, which, together with length of time, may warrant the presumption of a grant; especially, where great length of time is allowed by the statute. And it is in such cases only, where circumstances are absolutely necessary to aid presumption from length of time ; though they are sometimes called in aid, where mere length of time would constitute a presumptive bar.

Where statutes of limitation have been made, in respert ol. real rights, whether coporeal, or incorporeal, courts have always extended them to analogous cases ; and have thus introduced important improvements into our jurisprudence; for statutes of limitation, are very properly called statutes of repose. In England, they have statutes limiting the time iu which actions can be brought to recover corporeal heredita-ments. The writ of right, is limited to sixty years. By statute 21 Jac. 1. c. 16. it is enacted, that no entry shall be made, by any man, on lands, unless within twenty years after his light shall accrue. This has been extended, by courts, to writs of ejectment; so that twenty years, is a bar to that action.

In the case of incorporeal hereditaments and mortgages, there is no limitation ; yet the courts, on analogous principles, have extended the statute of James, to these cases, and twenty years is a presumptive bar.

In this state, the right of entry into lands, is limited to fifteen years after the title accrued ; and by construction, the statute has been extended to bar all real actions, unless brought within that period. We have no statute of limitation; respecting incorporeal rights, or mortgages : and our courts have, hv analogy, extended the same limitation to all cases of this description. And on the same ground, it must be extended to ail similar cases. The case of mortgages. precisely resembles the one under consideration. The morí gagor has no right of entry on the land, and can maintain no suit at law. By an application in chancery, he can redeem. Fifteen years possession, by the mortgagee, has been deemed a bar to the mortgagor, though the possession of the mortgagee is not adverse, and the mortgagor can, at any time, sell his equity of redemption. So here, though the creditors, as such, could not have made an entry on the land, or brought suits to recover $ yet, by a proper proceeding, before the court of probate, the land could have been sold for the payment of their debts. There is, then, the same reason why they should be barred, by fifteen years possession, as in the case of mortgages.

In regard to the nature of presumptions, or that proof of a presumptive nature, which will warrant a jury to find a grant, it may be remarked* that presumptions arise from circumstances. When no positive proof can be had, then certain facts, or circumstances, may be shewn, from whence the fact intended to be proved, may be inferred. Lord Mansfield says, All evidence is according to the subject matter to which it is applied.” Cowp. 108. “ If a foundation can be laid, that a record, or deed, existed, and was af-terwards lost, it may be supplied, by the next best evidence to be had ; or if it cannot be shewn that it ever existed, yet, enjoyment under a title, which can only be by record, is strong evidence to be left to a jury, that it did once exist. I do not know an instance in which proof may not be supplied.” Id. 109- I have myself taken it to be established, in point of law, that though the record be not produced, nor any proof adduced of its being lost, yet, under circumstances, it may be left to the consideration of the jury, or a court of equity, if the case comes properly before them, whether there is not sufficient ground to presume a charter.” Id. 110. There may be a length of possession, uninterrupted by any opposing claims, and without any circumstances to rebut the presumption, which will warrant a jury to find a deed, charter, or even a record. For it cannot be supposed, that the proprietor of a right, would permit another, for any.great length of time, to continue in the enjoyment of it, in the same manner as if it was his own. Such acquiescence, then, without asserting, or interposing, any claim, must be deemed satisfactory evidence, that he had parted with his right. But ia casos of this kind, cire.umst ancos w ill often occur, which very much strengthen tho presumption arising from long possession. It will bo proper to take those into consideration, though not necessary to warrant the presumption of a grant. Bu! in all cases, presumption may be rebutted, by proof of fads, which shew, that the grant, intended to he presumed, did not exist ; or which account for the. long possession, wiihcnir: supposing a grant.

In regard to the length of time, necessary to warrant the presumption of a grant.: Lord Mansfield says, there is no positive rule, winch says one hundred and fifty years possession, or any olher length of time within memory, is a Kulfirieni ground to presume a charter. It has hern several times done, where there was great length of time, in the case of the Mayor of Kingston-upon-Hull v. Horner, Cowp. 103, there was a period of three hundred and fifty years. In Powell v. Milbanke. cited Cowp. 103. there was one of about eighty years ; and Lord Mansfield mentions a case of one hundred years. Cnrcp. 110. Where the lenglh of timéis so great, every body acquiesces in the decision ; hut the doubts arise where the time is shorter. But in England, the judges do not hesitate on this ground. In the case of Doe d. Fisher & al. v. Prosser, Cowp. 217. it was holdcn, that ihirtv-six years sole and uninterrupted possession, by one tenant in common, without account to, or demand made, or claim set up, by his co-tenant, was sufficient ground for a jury to presume an actual ouster, in that case, if the parties had not been tenants in common, twenty' years would have been sufficient to have barred the action of ejectment; but as the possession of one tenant in common, is the possession of all, no length of time could be a bar, without an actual ouster : and here the court, where a freehold estate in a corporeal here-ditament was concerned, left it to the jury to presume an actual ouster, from the mere possession of thirty-six years, without account, it is perfectly evident, in this case, that the court might, with equal propriety, have submitted to the jury, whether they would not have presumed a conveyance,. Jlshhnrst, «L in remarking on the case, observes — “ after so long an acquiescence, I think the jury were well warranted to presume any thing in support of the deiendaní’s tille ; and they might presume either an actual ouster, or a convey awe.,? if thirty-six years, is a sufficient length of time to jsresmr.c an actual ouster of a tenant in common, or a conveyance oí his title, shall we hesitate to say* that a period of twenty-eight years is sufficient ? Shall we split hairs upon the great, questions of justice ?

In the case of Fairclaim d. Empson v. Shackleton, 5 Burr, 2604. a question was made, whether one tenant in common shall not bar the other, by the statute of limitations, where there was no adverse possession. It was decided, that the possession must be adverse, and that there must be an actual disseisin : but as there had been a possession of twenty-six years, Lord Mansfield said, if there had heen a question about ouster, it might have been a fact to be left to the jury. In the case of Fisher & al. v. Prosser, Cowp. 220. Ashhurst, J. in speaking of this case, remarks, with respect to it, that “ the present question was not properly before the court, in that case. The single question there, was, whether the plaintiff was barred by the statute of limitations. The possession, was a possession of twenty-six years ; but in that case, it was not left to the jury to presume facts.” This is, certainly, a very clear intimation, that the possession of twenty-six years might have been left to the jury, to presume an ouster } which would have been the same thing, as to presume a conveyance. Here is a period two years short of the lime, which had elapsed in the case under consideration. One would think, this was sufficient authority to justify the court, in submitting to the jury a possession of twenty-eight years, without interruption, from w hence to infer the existence of a conveyance, or to be a presumptive bar to the action for the recovery of the land.

In a great number of cases, respecting easements, the courts in England have decided, that twenty years uninterrupted possession, without any circumstance to rebut it, may be presumptive evidence of a grant, or a presumptive bar. 2 Wms. Saund. 175. a. In the case of a bond, it has often been decided, that twenty years, without any demand of payment, is, of itself, a presumption that the bond has been paid : but that this is only a circumstance to found a presumption upon, and is, of itself, no legal bar. Oswald & al. v. Legh, 1 Term Rep. 270. Searle v. Lord Barrington, 2 Stra. 826.

As the writ of right, in England, is barred only by a possession of sixty years, we have few cases reported, where the fee, or freehold, is concerned ; but in most cases where the statute does not extend, courts have admitted a much shorter period than sixty years to be a presumptive bar. They have extended the statute of James I. to the writ of ejectment, to incorporeal rights, and to mortgages ; and though there is no express decision, that twenty years’ possession, or enjoyment, of a right, shall warrant a jury to presume a grant, in all cases where there is no statute of limitation, yet this principle, I apprehend, is fairly deducible from a collected view of their decisions on this subject.

Though there has been no decision in this state, expressly settling the point under consideration; yet, pursuing the practice in England, principles have been recognized, which will comprehend it. The statute barring entry on lands, by fifteen years adverse possession, has been construed to transfer the estate, to bar any action to recover it; and has been extended to mortgages and incorporeal rights. The doctrine established, is, that the statute shall be extended to all similar cases — to all cases within the spirit and meaning, though not within the letter, of it. By the same train of reasoning, it must be applied to the case in question; for though it does not come within the literal construction, it is, unquestionably, within the equity of the statute; and if the legislature had contemplated the possible existence of such a case, they would have provided for it$ as it is evident they intended to quiet the title to land, by an uninterrupted possession of fifteen years. It would seem, then, as the case is within the reason of the statute, the provision of it ought to he extended to it, in the same manner, as in the case of rights of way, and other easements. Why should an heir be deprived of his paternal estate, by fifteen years’ possession, and a creditor be permitted to pursue his claim forever ? It is equally in bis power to avail himself of the land, as for an heir to recover it $ and there is precisely the same reason why he should be barred, by negligence, or delay. There can, then, be no imaginable reason, why this case should not stand on the same footing, as to matter of presumption, as all other similar cases: there can be no justice in saying, that the same limitation shall not be extended to it, as there is to incorporeal rights.

But here it is answered, that however reasonable and proper it may be, there are decided cases opposed to it, ich are Conclusive on this point. The case' of Eaton v. Sanford, 2 Day, 523. and Beach v. Catlin, 4 Day, 284. are relied on.

In the case of Eaton v. Sanford, the court decided, that the statute of limitations did not begin to run during a disability, and that the plaintiff could take advantage of the disabilities of infancy and coverture. On that construction, (though an incorrect one,) the case was within the saving of the statute : and though the defendant attempted to avail himself of the presumption arising from a possession of near sixty years, the court properly decided against him ; for mere length of time short of the period prescribed by the statute, is never a sufficient ground to presume a grant. If the defendant could have accompanied this length of time, ■with circumstances conducing to raise a presumption, then the question might have been submitted to the jury.

The case of Beach v. Catlin, was a fraudulent conveyance j and there the court decided, that the creditor acquired no right of entry on the land, till the levy of his execution i and, of course, the statute could not operate against him, prior to that time ; for till that time, there could be no adverse possession against him. Though the question now under consideration, was not directly, and formally, raised and derided in that case ; yet, as it might have been made, I am willing to admit, that the court did decide, that where there was a fraudulent conveyance, there can be no presumption of one that is bona fde, so as to constitute a bar to the action. That this decision was correct, but not at all opposed to the doctrine I am endeavouring to support, will readily appear.

It must be remembered, that presumptions, in all cases, may be rebutted, or explained. If facts can be proved, which shew, the grant, or deed, claimed to be presumed, could not have existed, the ground of presumption is removed. 2 Wins. Saund. 175. a. In the case of Beach v. Catlin, the defendant claimed under a deed from Brace, the debtor, which was proved to be fraudulent and void. Here, there w#s an express grant, or deed, which rebutted and excluded all presumption of any other: for it cannot be supposed, in any possible case, that there should be two deeds, made at the same time, of the same estate, one bona fide, and the other fraudulent. If a deed be proved to have existed, the rights of the parties must be governed by it; and the party can never resort to a presumptive grant; because that which was actually made, was fraudulent and void: for though presumption may be admitted, to supply a defective deed, it can never be done, to validate a fraudulent transaction. The case, then, of Beach v. Catlin, can be vindicated on solid principles. The court did not decide, that fifteen years’ possession would furnish no evidence to presume a grant, where the case was not within the statute; but that a fraudulent deed rebutted all presumption, that a bona fide one was made at the same time. It may also be added, that a fraudulent conveyance always contains a secret fraudulent trust, w hich is never protected by a statute of limitations.

How different is this, from the case under consideration ! There is no pretence of fraud, in the claim of Joseph Dudley ; or in the creditor, who levied on the land for the payment of his debt. Here is a possession of more than twenty-eight years, uncontradicted, and Unexplained. Certainly, this is the very case, where presumption from length of time, should have its full operation and effect. I apprehend, then, the proposition will be found to be warranted by reason and authority, that, as in England, twenty years possession, so in this country, fifteen years possession, without interruption or contradiction, is a matter of evidence, per se, without any other circumstance, proper to be left to the jury, to presume a grant, in all cases not within the statute of limitations. There must be some period of time established, as the ne plus ultra. As we find many cases which have adopted this period, and none which have required a longer one, we are authorized to say, that it is the time established by law; and that possession for the period of fifteen years, imcontradicted and unexplained, is the same as time whereof the memory of man runneth not to the contrary.

The possession, then, in this case, for more than twenty-eight years, might have been submitted to the jury, as evidence from whence they could have presumed a grant, without any accompanying circumstances ; am! this would have justified the verdict they found. That part of (lie charge, then, which submitted the accompanying circumstances, veas unnecessary and immaterial ; it might have been omitted — .it was mere matter of surplusage, and can he no ground for a new'trial.

Some, however, revolt at the idea of presuming a deed or grant, from so short a pusscssiop. But it must be remembered, that this is done, in effect, every day, by the statute of limitations ! and we may as well complain of hardship in one case, as in the other. By this statute, the clearest record title can he defeated, by fifteen years adverse possession. The same policy, which justifies the legislature in making this regulation, to avoid the inconvenience of antiquated claims, will justify courts in extending it to similar cases. There can, t hen, be no well grounded cause of complaint, on this head.

But it is said, in this case, there is no probability, that a deed, or grant, ever existed; and that it would be very strange to admit a jury to make such a presumption. This leads me to consider the principles on which grants are to be presumed by a jury.

Any fact may be found, by a jury, on presumptive evidence ; but, generally, facts are found, on the ground that the jury are persuaded, or convinced, by the presumptive evidence, that they actually existed. All the innovation, that has been made, by courts, in modern times, is, that they will permit a jury to presume a grant, charter, or any writing, though there is no probability that they ever existed. Lord Mansfield says — “ Not that the court really thinks a grant has been made; because it is not probable that a grant should have existed, without its being on record ; but they presume the fact, for the purpose, and from a principle, of quieting the possession.” Cowp. 215. In giving their opinion in the case of Knight v. Halsey, 2 Bos. & Pull. 206. the judges say — “ The presuming a deed from long usage, is, certainly, a novel invention of the judges, for the furtherance of justice, and for the sake of peace, where there has been a long exercise of an adverse right. For instance, it cannot be supposed, that any man would suffer his neigh-bour to obstruct the light of his windows, and render his house uncomfortable, or to use a way, with carts and carriages, over his meadows, for twenty years respectively, unless some agreement had been made between the parties to that effect, of which the usage is evidence.”

In examining the cases, which have been decided, it will be found, in most, if not all, of them, that there was not the remotest probability that charters ever existed ; for if they had, they would have appeared of record ; yet the court did not hesitate to permit the jury to presume them. In the case of the Mayor of Kingston-upon-Hull v. Horner, there was no reason to believe there, had been a charter. T he same may be said of Powell v. Milbanke, Cowp. 103. n. and Bedle v. Beard, 12 Co. 5. This presuming a grant, however, is not wholly a novel principle. Presumption is well known at the common law. This is founded oh immemorial usage or possession, for a length of time beyond legal memory, or the memory of man : this supposes a grant which has been lost. All the innovation, in modern days, regards the length of time ; and now, instead of requiring proof of a possession or enjoyment beyond the time of legal memory, in order to presume a grant, courts have very properly admitted a much shorter period ; yet in these cases, they proceed on the ground, that there has been a grant, the evidence of which has been lost, by length of time, so that no rule of the common law is violated. The leading principle is, that grants are to be presumed where the justice of the case requires it, to quiet a long possession. Under such a guide, this is a power, which courts, in the exercise of a sound discretion, may use, in such a manner as greatly to promote the peace of the community, and the security of property. It may be used as an instrument to subserve the cause of justice, where from length of time it is probable that the evidence of title is lost, or where it would be unreasonable to disturb a possession of long standing j but it is never to be exercised where it would promote injustice, or deprive a man of a clear and well established right.

It is not necessary, that the jury should presume who is the grantor, or what is the particular kind of grant. They may presume such a grant as will quiet the possession. Of course, they can presume charters, deeds, records, by-laws, common recoveries, and even acts of parliament, where it is necessary. Lord Kenyon once said, that he would presume not only one, but one hundred grants, to support such a lung possession. Lord Ellenborough said, be would presume any thing, to support such a long possession. 11 East, S83. There can be no difficulty about a grantor, or grantee, or the forms of the grant.

To apply these principles to the case under consideration. The defendant, and Joseph Dudley, under whom he claims. have been in possession of the demanded premises nearly thirty years. The creditors of William Dudley, from whom the plaintiffs derive their title, proceeded against his estate in Massachusetts, in 1786, and found -it to be insufficient to pay their debts. No measures were taken by them, for more than twenty-eight years, to enforce their claims against his property in this state j though it was in their power, at any time, to have done it. Here is a time in which their debts would have been long ago barred, by the common law limitation, inordinary cases. Here was a length of time, in which the creditors of William suffered Joseph to occupy this estate# more than sufficient to acquire a title by possession ; and of course, his creditors and purchasers must have had good reason to believe, that he had a lawful right, and that it was safe to levy upon, or to purchase, it. But now, after the creditors of William have permitted Joseph to spend the whole of his estate, without asserting any claim to it ; they come forward with these antiquated demands, to deprive honest, creditors and purchasers, of the lands for which they have paid a valuable consideration, but which they never would have purchased, had it not been lor the negligence and delay of those who seek to deprive them of this estate. Even admitting, that these creditors might have had a claim to this estate, at the death of William Dudley; yet it would now be, in the highest degree, unjust, to permit them, after such an unreasonable delay, to disturb this ancient possession. Suppose the lands of William, at the time of his death, were of little value, but now, by cultivation, and improvement, have become worth fifty thousand dollars ; what must be the sensation of the honest creditors and bona fide purchasers of Joseph, to be stripped, by such stale demands, of all the hard earned fruits of their industry ? Surely, there can never be a case, in which the doctrine of presumption would operate with more singular justice. Who will not say, with Lord Kenyon, “ I will presume not only one, but one hundred grants, if necessary, to quiet such a long possession ?”

The only remaining question is, whether the record from the court of probate in Massachusetts, was admissible evidence. Though this document was immaterial, as there was sufficient evidence without it, so that the admission of it could be no ground for a new trial j yet it can be vindicated on principle.

The ground, on which the defendant rested his claim, was, that he and Juscjih Dudley. under whom he claimed, had hern in possession of the land for more than t went}-eight years ; Tat inilium Dmileij died in 1786 ; that Joseph entered Immediately, on his death, claiming the land as his own ; that soon alter the death of tVHHum, in Rn.rbury in Massachusetts;, letters of administration were granted. Ids estate inventoried, and represented insolvent ; that the creditors exhibited their debts, which were allowed ; that on a legal settle ment of the estate, it. was found insufficient to [say them ; and that (hey never prosecuted any claim in this state, to apply the laud in qnes1i> n to the payment of their debts, till the year 1814. Why is not this proper evidence tobe left to the jury, as a presumptive bar to the claim of the plaintiffs ?

It cannot he supposed, that the creditors of an insolxcnl estate in Massachusetts. not presumed to he ignorant of the estate of lir'lr debtor, would suffer their debts to lie for nearly thirty years, when it was in their power, at any time, to have enforced a rollertion of them, by the sale of the lands in question. Herr is an uninterrupted possession, on one side, and a non-claim and acquiescence, on the other, which constitute the ground of presumption. In all iiie.se cases, it is admissible to prove íhí' uninterrupted possession of one party, and that the other inis made no claim, and asserted no right, under such circumstances that he probably would have done it, if he had any legal title. It is always competent to prove the conduct and situation of the parties, and especially, that no claim was made. This was the , ff ct of the proof offered. It was necessary to produre the proceedings before the court of probate in Missac.hnsells, to shew the length of time which the creditors neglected to prosecute their claims. On the death of fi illiam Dudley, if this land was liable for the payment of his debts, his creditors, it must be presumed, would have known it, and would certainly have taken it for that purpose. It. must, then, he proper, to shew, that they proceeded against his estate in Massachusetts, which was found to be insufficient: for this clearly furnishes a legitimate presumption, that they knew and considered he had no title to the land demanded. This is proving, that the. parties in interest made no claim, and asserted no rights. This shews there was no circumstance to rebut the presumption of a grant. This put the case on the footing of a possession for a great length of time, unanswered and unexplained. Of course, the record was clearly admissible j and a new trial ought not to be granted on that ground.

Smith, J.

This, in my judgment, is not a case, in which either the statute for quieting the possession of land, or the doctrine of presumption from length of possession, can apply.

The length of time, during which the creditors lay by, after the death of William Dudley, before administration w as obtained, must have its effect, if any way, to bar the right of administration, or to prove a satisfaction of the debt. And in case any question was to be raised, on either of these subjects, an appeal should have been taken, from some, or all of the decrees of the court of probate, in granting administration, allowir^; the debt, or ordering a sale of the estate ; but no such question can be made in this action.

In the case of Beach v. Catlin, 4 Day, 284. Judge Swift gave an opinion, which goes much further than is necessary to decide this case; and a majority of the court sanctioned that opinion. If there was no adverse holding or actual ouster, in that case ; for a much stronger reason, there is none in thi§. I was, at that time, in a minority ; but the principles settled by a majority, must govern my subsequent decisions. The opinion, which I now give, however, though it is fully supported' by the majority in that case, is also in perfect accordance with the view 1 then took of the subject. I considered Gatlin as holding the possession adversely to Brace, and as having obtained a complete possessory tille against him, before the levy of Beach’s execution ; and although a creditor might avoid the deed, on account of fraud, he could not evade the positive and direct effect of the statute, operating on a fifteen years’ possession. I did not consider it to be “ an undeniable position, that a lawful possession acquires no title under the statute,” as advanced by the learned Judge m that ease. I supposed there might be an .actual ouster and adverse holding, as fully and completely, by consent, as by the most tortious turning out : for instance, in case of a sale of lands by parol, where the consideration is paid, and possession voluntarily resigned up, and held by the purchaser for fifteen years, in his own right, without paving rent, or acknowledging the title of any one. In this, and many other cases, which occur, there is an ouster, by consent, equally effectual with those which are tortious.

In the case now under consideration, there is no room for pretence of adverse holding against any one.

The heir, upon the death of an ancestor, is by law made the depositary of title, to hold for creditors ; who haw.', all that time which is given by law, for taking out administration, and collecting debts, to make out their claim. During this period, the deceased has a sort of legal existence, — or rather, his estate remains liable for the payment of his debts, as fully as if he were living. And in my judgment, a debtor, while living, might as well claim to be quieted in the possession of his land, against the stale demand of his creditor, after the levy of an execution on it, as for his heir to make a similar claim, after a sale in the regular course of administration, by order of a court of probate for the payment of debts.

Gorrín, J.

The first question is, whether the record of the court of probate, in Massachusetts, was admissible evidence ?• The suggestion, that it was proper evidence, to prove the death of William Dudley, is entirely foreign to the question. That fact was not in issue. Indeed, it appears distinctly from the motion, that the record was offered, “ to shew, that the lands did not belong to William Dudley in as much, as they were not included in the inventory, which forms a part of the record. But it is impossible to maintain, that any record of a neighbouring state could be admitted, for such ápurpose. The subject-matter in question is, in its nature, and in the most absolute sense, local. No court of justice, in another state, can, by any determination, or any proceeding, determine a question of title to land in this state. Transitory rights may be derided, in any jurisdiction, to which the parties are personally amenable. But who ever imagined, that the record of a writ of rigid, or of an action of ejectment, brought in a neighbouring state, (if such a ease may be supposed,) to recover lands, locally situated here, would be admissible evidence of title ? The proceedings, in such a case, would be a mere nullity, as being coram non Indice. And if the probate-record, in the present case, had actually embraced the lands in question 5 it would .haw been, so far, equally7 null, for the same reason. For there, is noth- > ing, in the peculiar nature of such a record, to take it out, of the common rule. And if an actual inventory of the lands would not have made the record evidence, on one side j surely, the omission to inventory them, cannot make it so, on the other.

I am also of opinion, that the direction to the jury was wrong. They were told, that, “ from great length of time, with circumstances to render it probable, they might presume and find a grant and that “ if they found a grant” (i. e. according to this rule of presumption,) to those, under whom the defendant claimed they must find for him. But what circumstances conduce to such a presumption, is a question of law: and if any such, in addition to the length of possession, existed in the case ; they should have been pointed out to the jury, and ought to appear in (he statement now before us. But as no circumstances appear to have been given in evidence, as accompanying the possession, except what the probate-record from Massachusetts furni; hed j and as I hold that record itself to have been inadmissible ; the case, as I must consider it, is the same, as if the jury had been instructed to presume a title in the defendant, from length of possession alone.

Would such a direction, then, have been correct ? This, in my view of the subject, is the real, and only remaining, question.

With respect to easements, and incorporeal rights in general, the rule, undoubtedly, is, that from long adverse enjoyment, a grant, or whatever else is necessary to legalize the enjoyment, and to establish a title to it, may be presumed. But such a presumption, from mere length of possession, is never applicable to corporeal subjects — as lands and tenements. The reason is, that with respect to the latter, the statute of limitations has made all the provisions, which the law deems necessary, for quieting possession : whereas, no length of enjoyment or user, in the case of incorporeal hereditaments, (which do not lie in seisin, or corporeal possession), is protected by those, or any similar provisions of statute-law, And hence, from the manifest expediency of quieting long enjoyment, or user, as well in cases, in which the subject is not, as.in those, in which it is, within the slat-■jíc of limitations, courts of justice have virtually extended the protection of the statute to subjects not within it, by establishing a presumption, from length of enjoyment, in analogy to it. Out where, as in this case, the subject is within the purview of the act, to superadd the doctrine of presumption to its provisions, would he virtually to multiply those provisions ; or rather, to make an additional statute of limitations. The statute itself quiets a fifteen years’ possession of lands and tenements, in ail cases within its purview, and not within its savings : and if, by a rule of presumption, professedly adopted in analogy to the statute, such possession is to be quieted in other cases also j it is plain, that persons and rights, not intended by the legislature, to be affected by •he act, will be, in effect, brought within it. Indeed, upon the very principle, upon which a title was presumed, in tiie present case, against the creditors of William Dudley, every reversioner, and remainder-man, must lose his title, whenever ¡.he particular tenant has been ousted for fifteen years : and upon the same principle, every saving in the statute may he defeated.

I admit, that, in certain cases, length of possession may, with other circumstances, be proved, to perfect the evidence of title to lands and tenements. But the distinction, between the principle of those cases, and the doctrine of conclusive presumption, in the case of incorporeal rights, is very broad, and, I think, very clear. The rule of discrimination, I take to be this : when an actual transfer of title, of which the deed, or any other necessary original evidence, is lost, is to be made out, in whole, or in part, by secondary evidence; length of possession is, like any other circumstantial fact, admissible, as corroborative evidence, and only as corroborative evidence, of such transfer. And here it is immaterial, whether thé subject in question is incorporeal, or corporeal. In this case, however, length of possession is, in its nature, no more essential to the proof of the main fact, than any td her supposable circumstance. And possession for a shorter period, than that prescribed in the statute of limitations, is admissible evidence : though, undoubtedly, the longer the possession is, the stronger will the presumption, arising from that fact,, be. But w here length of time is relied upon us a presumptive bar — i. e. where mere length of possession is the only fact required to be proved, and is,, of itself, the conclusive fact,-from which a title is to be peremptorily pre-guniPtl, upon the principle of quieting possession, and whether an is actually believed to have existed, or not— the subject in controversy always is, and must be, an incor-poréal right. And I know of no instance, either in the English law, or our own, in which this latter rule of presumption has been applied to corporeal hereditaments, which are within the purview of the statute of limitations. It was urged as applicable to land, in, Eaton v. Sanford, 2 Day, 523. and afterwards in Brace v. Catlin, June term, 1813 ; and in both instances, rejected by this Court. The observation of Lord Eltenboraugh, in Parker v. Baldwin, 11 East, 487. that an adverse possession of crown-lands, for fifty-five years, would be sufficient evidence for the jury to presume a grant from the crown, if the crown wore capable of making such a grant, does not interfere at all, with the distinction, I have just laid down. For as crown-lands are never within any general statute of limitations, they remain, in this respect, as at common law — upon the same footing with incorporeal hereditaments.

The cases of incorporeal rights, then, have no bearing upon that tv>w before us : and whenever length of possession lias been admitted, as presumptive evidence of title to corporeal hereditaments, it lias been of the nature, and introduced for the purpose, already explained : i. e. it has been received only as secondary, corroborative evidence of an actual conveyance, or of some accompanying requisite, of which the original and best evidence has been lost. And the jury, instead of being bound by any conclusive, or positive rule of legal presumption, are, in such cases, to weigh the whole evidence, as in every other case.of circumstantial proof, and to find, according to their actual belief. Thus, in Gray v. Gardner, 3 Mass. Rep. 399. where the defendant claimed title to land, under a sale by an administrator, it was determined, only, that a possession for twenty years, taken in connexion with an order of court, authorizing the sale — with proof of the insolvency of the estate — of the actual sale of it, at public auction, and of the publicity and fairness of the sale — of the deed of bargain and sale itself — and of the loss of the probate-files and papers, relating to the estate — was sufficient to warrant the jury, in presuming, that the adrnin-strator took the oath prescribed by law, and gave the neces.sary nolicc of salo : there bring no direct proof of Diese two latter facts, both of which were necessary to Die validity of the sale. And there can be no doubt, 1 trust, that if Die possession had been short of twenty years, the determination would have been the same.

It is unnecessary to go into a detailed examination of all the cases. The principle, upon which the case of Coleman v. Anderson, 10 Mass. Rep. 105. was decided, was preciséis the same, as in I lie case of Gray v. Gardner. The case of Hush v. iSraillc//, determined in the supei i •> r court, (.,Y¡nc- ’’axelumin iy, Jlugnst term, 5 812.) was governed by ttie same principle ; and the state of fuels, in that ease, was almost identically the same, as in Gray v. Gardner, except that a mesne convoy-an* e, instead of an accompanying requisite, was the fact to be presumed. In Bunce v. Wolcott, 2 Conn. Rep. 97. the rule recognized by those of the Judges, who gaio any opinion upon the point of presumption, from lapse of time, was confined to the same limits, ami qualified by substantially the same distinctions, between corporeal and incorporeal subjects, as I have already pointed out. The distinction, as laid down, in that case, by the chief Justice, is, that in cases, in which the statute of limitations might operate, (i. e. in ease of lands and tenements,) length of time “ accompanied by circumstances,” . which "render a grant probable, may found the presumption of a grant; and that length of time, “ unaceom panied by such circumstances,” may be a bar, (meaning a presumptive bar,) “ where there is no statute of limitations (i. e. where the subject is one, to which the statute does not extend.) Now, this distinction is, in .effect, Die same, that I am endeavouring to maintain. The case of Jackson d. M‘Donald v. M'Call, 10 Johns. Rep. 377. is substantially Die same, in principle, as that of Gray v. Gardner, and Bush v. Bradley; and it is observable, that a conveyance to the ancestor of the plaintiff M‘Donald, was presumed, though his possession was for a period, considerably less than that prescribed in the statute of limitations.

I am aware, that in a note to a late treatise on the law of evidence, (Phill. Ev. 1.24. n. a.) it is said, That the presumption, arising from length of possession, in the case of incorporeal hereditaments, si equally applies to lands and tenements.” This position, 1 think, is a plain mistake. Among the cases cited in support of- it, are those of Jackson d. M'Donald v. M‘Call, Gray v. Gardner, and Coleman v. Anderson; neither <>f which affords any countenance to such a proposition. And with respect to the other cases, brought together by the editor, for the same purpose, it may be safely asserted, that they all proceed upon principles totally distinct from that conclusive rule of presumption, winds obtains in the case of incorporeal rights. Without going into a minute and tedious examination of these cases, (and passing over those of them, which are out of the purview of the statute of limitations, independently of the savings in it, and which stand, therefore, upon the same footing with the crown-lands, in Parker v. Baldwin f) it may be sufficient to observe, that, in several of them, the presumption was founded upon special corroborating circumstances, accompanying the possession ; and that, in most of the others, the fact in question was presumed, in pursuance of the maxim, that “ what ought to have been done, shall be presumed to have been done so that where a party is entitled to conveyance, a conveyance shall be presumed. But it is very material to b< observed, that in neither of these two classes of cases, is any particular length of possession, indispensable to the presumption of a conveyance ; and that in the last class, the presumption may be raised in favour, as well of a party out of possession, as in: as in the common case of presuming the release of' a satisfied mortgage, or the surrender of a satisfied term. Now, it is very obvious, that cases of this kind cannot he made to bear, at all, upon the principal question: nor, I repeat, is there any one, among the collection of cases to which I am referring, that has any relation to it.

I am, therefore, of opinion, that upon both the grounds, disclosed in the motion, there ought to be a new trial.

TbtjmRui,!,, Edmond, Brainard, Hosmer, Peters and Chapman, Js. were of the same opinion.

New trial to be granted.


source: Caselaw Access Project

author: Swtft, Ch. .T.

license: Public Domain

text:
    De Forest against Bacon and another.

      New-Haven,

    November, 1818.
    THIS was an action of trespass, for taking and carrying away various articles of dry goods and groceries, usually kept in a country store ; a large, quantity of brushes and shaving boxes, finished and unfinished, in a brush and box factory, together with a quantity of raw materials for making the same j and various other articles of personal property ; formerly owned by Isaac E, Judson.

    The cause was tried at Litchfield⅝ August term, 1818, before Trumbull, Hosmer and Gould, Js.
    On and before the 3d of December, 1816, Isaac E, Judson owned and possessed the goods specified in the declara lion. He then made an assignment of them, by virtue of the following instrument“ Whereas I, Isaac E. Judson, of Roxbwry in Litchfield county, being indebted to the several persons named in the schedule annexed, in about the sums affixed to their names, and feeling myself unable to meet said contracts of indebtedness, according to the terms thereof, do hereby assign, transfer and convey all the articles of personal property in the annexed schedule, to Ithamar Canfield, John Taylor and Marcus De Forest, as trustees for, and in behalf of the said Judson, on one part, and the creditors herein after named in the schedule annexed, on the other part j to be by them taken into possession, and the same to sell, transfer and convey, and receive the avails thereof, and the same to apply to and for the payment of the said Judson’s debts, in the order mentioned in this deed of trust, with power to dispose of said property, in such manner as they shall deem most for the interest and profit of the said Judson, and his said creditors. And whereas also, a part of tin: property in the annexed schedule mentioned, consists of raw materials usej atMj manufactured in the brush factory, and the box factory, now belonging to said Judson, the said trustees are to have power to conduct and carry on the manufactory of brushes, of various kinds and descriptions, until all the materials now on hand shall be consumed, and to purchase such articles as are necessary to manufacture and work up all the raw materials now on hand. And if it shall occur, that the exact sums due to each creditor hereafter named, are not, specified, it is understood that the said trustees shall have power to satisfy the same in full, if there is sufficient property i and if any sum, or surplus, of the avails of said property so conveyed, as herein mentioned, shall remain, after paying said debts, in the said schedule mentioned, and paying and satisfying the said trustees for their time and expenses, a reasonable sum, the same shall be equally divided among those creditors of said Judson, not mentioned in the schedule annexed ; and if the said property shall not prove sufficient to pay the said debts so mentioned in said schedule, the same are to be paid in proportion, according to the amount of property, and the sum really due each creditor. And the better to carry this assignment into effect, 1 do hereby declare, that in case either of said trustees should refuse to accept and perform the said trust, by this instrument given them, then the other two, or in case of the refusal of two, the other one, shall have full power to do and perform all, and every thing, in this deed, provided for all the said trustees to do and perform. Dated at Roxbury, this 3d day of December, 1816.

      A. being' insolvent, assigned to h, C. and I) , as trustees tor ium-seif, on the one part, and for certain creditors named in a schedule, on the other part, the contents of a country store, and the raw materials of a brush and box factory, specified in a schedule, annexed, comprising' the whole of A’s estate, exclusive of his notes and credits, empowering the trustees, or such part of them as should accept the trust, to dispose of the property, and apply the avails i« payment of the debts due to the creditors named, and to pay over the surplus, if any, to other creditors: — also, to carry on the business of the factory, and to purchase such additional articles as should be necessary, until all the raw materials on hand, at the time of the assignment, should be worked up. ft. one of the trustees, who had been a clerk of A, accepted the trust, the others declining, and took immediate possession of the property assigned. The jury found, that such assignment was not made with a view to defraud creditors, and to keep the property from the reach of legal process. It. was held to be valid as against the attachment and execution of a creditor not named m the schedule.
    Where the property of an insolvent debtor is assigned in trust for the benefit of certain enumerated creditors, their assent to the assignment will be presumed until they express their dissent.
    The shop-book of the assignor, kept by one of the trustees, who was also a creditor named in the schedule, is proper evidence, in an action brought by such trustee agamst a third person, to shew, in connexion with other proof of a debt due from the assignor to the trustee, the slate of the accounts between them.

      [Signed.]

      Isaac E. Judson.”

    Then followed a list of creditors, with the sum due to each, amounting to 9,167 dollars ; and an inventory, or schedule, of the property assigned, amounting to 9,385 dollars, comprising the whole of Judson’s estate, except his notes and hook debts. Under this assignment, Be Forest took possession of the goods, and of the store and factory, and carried on the business, at the same places, and in the same manner, as Judson previously had done. At the time of the assignment, Judson was insolvent, and was largely indebted to other persons than those named in said list, particularly to Jlsahcl
      bacon, one of the defendants. Shortly afterwards, viz. on ihe 7th day of January, 1817, Bacon mimed the property specified in the declaration to be taken, and held, or disposed of, by virtue of a writ of attachment, and certain executions, founded on bona fide debts, in his favour, against Judson which was the only trespass and taking dohe by the defendants. They claimed, therefore, that the assignment was fraudulent in law, and void, as against said attachment and executions ; and prayed the court so to instruct the jury. Rut the court charged the jury, that the assignment was not in itself fraudulent, but that the plaintiff was entitled to re» cover, unless the defendants could prove, that it was made with a view to defraud the creditors of Judson, and to keep I}¡e property from the reach of legal process.
    In the course of the trial, the plaintiff, in order to prove a part, viz. 109 dollars, 60 cents, of the debt set down in the schedule as due to him, offered in evidence the day-hook of Judson, kept by the plaintiff, while he was Judson1 s clerk, accompanied with proof, that it was the shop-book of Judson, in the plaintiff’s hand-writing. The credit therein given to the plaintiff consisted wholly of his wages as clerk to Judson. The plaintiff offered other evidence to prove his services, and the contract under which they were rendered. The defendants objected to the admission of the book as evidence. The plaintiff claimed it to be necessary, in order to shew what amount he had been paid for his services. The court decided in favour of its admission ,* and it was accordingly read to the jury.
    A verdict having been found for the plaintiff, the defendants moved for a new trial, on the ground of a misdirection, and the admission of improper evidence. The court reserved the motion.

      Daggett and Benedict, in support of the motion,
    contended, 1. That this assignment, in connexion with the facts which appear in the case, was fraudulent, and void, as against the claims of the defendant, Bacon, a bona fide creditor to a large amount, who was, in no sense, actually or constructively, a party to the transaction. The facts relied upon as constituting a case of fraudulent conveyance, were, first, that the assignment was made on the eve of bankruptcy, ami with a view to effect a bankruptcy; secondly, that it com--prised all ¡in* visible property oí' Jmlsott, liable to be takeu Rgal process ; thirdly, that of the lit rete assignees, one only accepted, or eould accept and perform, the trust, and that one was Judson’s clerk , four!lily, that this assignee was to continue, at the same places, and in the same manner, the business of the store and of the factory, a business which had already ruined Judson ; fifthly, that the assignment was mad® in the absence of the creditors named in the deed, and without their assent, none being expressed,⅝ and none implied, because it doesjiot, and cannot appear, that the assignment Would bt beneficial to them ; and, sixthly, that it was made without consideration, on the part of Judson, as he gained by it no protection to his person, or discharge from his debts, They cited Brown’s exrs. v. Burrell, 1 Root, 252. Hovey v. Clark <§■ al. Ibid. Naylor Sp al. v. Fosdick, 4 Day, 146. Widgery v. Haskell, 5 Mass. Rep. 144. •
    2. That the shop-book of Judson was inadmissible, the entries having been made, not against the interest of the person making them, but in his favour, and that person not being deceased. On this point they cited Bul. N, P. 282. Phill. Ev. 105. Cooper v. Marsden, 1 Esp. Rep. 1. Case v. Potter, 8 Johns. Rep. 212,

      N. Smith and Sherman, contra,
    remarked, with reference to the first point, that all the circumstances relied upon as evidence of fraud, were distinctly submitted to the jury, who found that there was no fraud ; so that the only question, on this part of the case, is, whether a bona Jide assignment of specific articles of property, by an insolvent debtor, to one creditor, in trust for himself and certain other creditors, not including them all, is unlawful and void ? If it is so, it is because it is unlawful for an insolvent debtor to prefer a part of his creditors ; or because, it is void, for want of the assent of the assignees ; or because it was made without consideration, That a debtor, whether solvent or insolvent, may lawfully prefer one set of creditors to another, is well settled. Hol-bird x. Jlnderson Sp al. 5 Term Rep. 235, Estwick v. Caillaud, 5 Term RepA%0. Inglis Sp al.x.Qrant, 5 Term Rep.530. Nunn Sp ahv.Wilsmore, 8 Term Rep,521. 3 Day, 344. Stevens S- al.v, Bell, 6 Mass. Rep, 342, As to an express assent, it is to be observed, in the first place, that the case is silent; but as no dissent is shewn, an express assent may have been provecí to the jury. No inference to t.lie prejudice of tl«c plain ( iff, ought to be ¡mulo, on account of this omission. But, be this as it may, the law will imply an assent. In all rases of an assignment or ronvejanre of property, in Ihe absence, or without the knowledge, of the assignee or grantee, an assent will be presumed until the contrary lie shewn. 4 Day, 159. 162. Treadwell ⅜ at. v. Bulkley tjf oh 4 Day, 395. 401. fVilt v. Franklin, l Binn. 502. 518. Besides, in this case, the assignee, in whom the property was to vest, expressly assented, and took immediate possession. The assignment being made in satisfaction of precedent debts — in full, if sufficient — otherwise, proportionably — it was unquestionably upon sufficient consideration. 4 Day, 163. 6 Mass. ltcp. 343. The case of Hempstead v. Starr, 3 Day, 340. was relied upon as decisive, in favour of the validity of this assignment. The authority of this case, they said, was not impaired, but was rather fortified, by Naylor v. Fosdick, 4 Day, 146.; as a majority of the court, in the latter case, professedly distinguished it from the former, and the minority opposed the decision, on the ground, that the cases were not distinguishable in principle.
    2. As to the objection against the shop-book, a bare statement of that part of the case, is a sufficient answer. ])e Forest proved the amount and value of his services, by common law evidence. The shop-book of Judson, containing entries in De Forest’s hand-writing, was then produced, to shew how much had been paid to De Forest, and what was the exact balance due him. The entries went to reduce the amount of De Forest’s claim, established by evidence not objected to ; and were, in effect, nothing more than a gratuitous admission by him, that a part of that claim had been satisfied. Why should the defendants complain of this I

   Swtft, Ch. .T.

A debtor in failing circumstances may prefer creditors, and may, when necessary and proper, convey his estate to trustees, to he distributed among certain creditors, if done bona fule. In this case, the conveyance is made of specified property to trustees, for the benefit of certain enumerated creditors, who are presumed to have assented, as no dissent was ever expressed. Such a conveyance is warranted by the principles adopted in the case of Hempstead v. Starr, 3 Day, 340. which has always been recognized to be law.

It is, however, objected, that by the deed of trust, the trustees are vested with a power to continue a manufactory, till certain raw materials are worked up; and to purchase any necessary articles for that purpose : that this is a power which no debtor has a right to exercise on the eve of bank ruptcy, and renders the conveyance void. It is, however, evident, that cases may occur, where this would be perfectly proper; otherwise, property might be sacrificed in the distribution among creditors : for the raw material might be of little value till manufactured, and in a situation not to be removed.

Such a provision in a conveyance, then, cannot make it fraudulent per sc: it can only be evidence of fraud, proper to be left to the jury. As this question was fairly submitted to the jury, who have negated the fraud, there is no ground of complaint.

The shop-book of Judson would have been proper evidence between the plaintiff and Judson, to prove the state of their accounts ; and, of course, was proper evidence in this action, to shew the indebtedness of Judson to the plaintiff.

The other Judges were of the same opinion, except Smith and Chapman, Js. who gave no opinion, the former being related to one of the eestuy que trusts, and the latter having been of counsel in the cause. Peters, J. founded his opinion solely on the authority of Hempstead v. Starr.

New trial not to be granted.