Rhodes, as it was said; and so also did William Hill. The tenants used to buy and sell among themselves before the war.

Being cross-examined, the witness says that by a sale between the tenants, he means that they sold their improvements to each other. The lands were appraised when they purchased of the commissioners.

Enoch Crosby, a witness for defendant, testified that he has lived on Philips' long lot No. 6, about 70 years. In 1782, witness went to reside on lot No. 9: there were about a hundred and fifty families on lot No. 5, and No. 9, claiming as tenants of Roger Morris, before the revolutionary war. After the land was confiscated, they claimed to be owners of the soil, under the sales by the State. never heard of the marriage settlement, till Mr. Astor purchased.

He

Isaac Field, a witness for defendant, says he is 69 years old, and has lived all his life on lot No. 9, (Morris's short lot;) his father, Solomon Field, died about 12 years ago, in possession of a farm there, and then witness inherited it. His father held as tenant of Roger Morris, till his estate was confiscated; and since then, all the former tenants of Morris, claim to hold under the state. Nicholas Agar, a witness for defendant, says he has lived on the Morris lot No. 5, all his life, and he is now 58 years old: his father, as he understood, lived there 70 years ago. About 20 years ago, witness took a deed from his father. Before the confiscation act, his father held as tenant of Roger Morris; and after they purchased of the State, they claimed it as their own. Great improvements have been made by James Carver and others, since the

war.

Joseph Cole, a witness for defendant, says he has resided on lot No. 5, he is 52 years old, and his father lived there before him, Witness bought of his father in 1802, or 1803. Great improvements have been made generally, since the war.

William Hill, a witness for defendant, says he has lived on lot No, 5,

and about 20 years ago he sold a farm there.

Defendant's counsel then gave in evidence, a deed of release from Roger Morris and Mary his wife, to William Hill, dated 27th September, 1765, for the consideration of £750, for a farm in lot No. 5, containing 240 acres, in fee simple, with covenant that the grantors were seised in fee simple, and had a good right to sell the land. The release recited a lease for a year, as connected with the release, and bearing date the lay before the release. The release was duly proved by the acknowledgment of the grantors. No lease corresponding in date with said recital was produced, but defendant's counsel showed a lease for one year, between the same parties, for same land, dated 27th October, 1765, for one year, which was not proved nor acknowledged.

William Hill, again called, says he purchased of his father, William Hill, the farm mentioned in that release, about 30 years ago, and the land is now held under that deed.

Defendant's counsel then gave in evidence another lease and release from Roger Morris and his wife, to William Hill, dated 18th September, 1771, consideration £220, for farm No. 40, in lot No. 5, containing 53 acres, in fee simple, with like covenant of seisin, and right to sell the lease corresponded to the recital thereof in the release, but it was neither proved nor recorded.

William Hill again called, says his sisters, Betsey, and Deborah Hill, now live on the land mentioned in last deed.

Defendant's counsel also gave in evidence a like conveyance by lease and release, from Roger Morris and his wife, to Joseph Merrit, dated 18th September, 1771, consideration £225, for part of farm No. 76, in lot No. 5, of 200 acres, in fee simple, with like covenant of seisin and right to sell. The release was duly acknowledged at the date of the deed, and recorded September, 1825. The lease was neither proved nor recorded.

Ebenezer Boyd, a witness for de

fendant, says he lives in Kent, on the Merrit farm, on lot No. 5, under that deed.

Noah Hill, a witness for defendant, says he lives in Putnam county, is 74 years old, and never heard of Astor's claim, till about 15 years ago, when he sent an agent to notify the settlers of his claim.

Judah Kelly, witness for defendant, has lived on lot No. 6, for 46 years, and never heard of the marriage settlemenr till Mr. Astor purchased. Since the confiscation, the settlers have all claimed to be the owners.

Thomas Lownsbury, a witness for the defendant, says he is 54 years old, has lived all his life on lot No. 5, holds a farm there, as heir to his father, who since the war, claims to be owner under the state.

Berry Cole, a witness for defendant, says he is 58 years old, lives in Carmel, on lot No. 5, was born in that neighbourhood, owns a farm on lot No. 5, had it of his father, who had it of his grandfather, Elisha Cole. Witness has possessed it about 30 years, claiming it as his own. His brothers Joseph, and Levi, lived there, and possessed and claimed the land as their own. The lands there have been divided and sold, and greatly improved. Never heard of the marriage settlement till Mr. Astor purchased,

Col. Barclay was again called by defendant's counsel, and testified that he was intimately acquainted with Col. Beverly Robinson, who resided in New York, and was a merchant there till about the year 1764 or 1765, when he removed to the Highlands, and lived there on lot No. one, till the war, or about 1775, when he removed to the city of New York, where he remained till the preliminary treaty of peace, and then he went to England.

Roger Morris also had a cottage on his lands in the Highlands, where he often went to look after his estate, and to receive his rents. Roger Morris continued to reside in this city during the war, till the fall of 1782, or the

spring of 1783, when he went to England with his family.

Beverly Robinson was again called, and said his grandfather Beverly Robinson died between 1790 and 1795. Defendant's counsel here rested their defence.

Col. Barclay was again called by the plaintiff, and testified that he heard the marriage settlement spoken of very often in the family of Roger Morris, before the year 1770. The mother-in-law, Mrs. Joanna Philipse, stated to him that it was thought prudent to secure the estate to the children of her daughter Mary, for that Roger Morris was a military officer, and might waste it or dissipate it.

Egbert Benson, a witness for the plaintiff, testified that in returning from congress, which sat at Trenton, in company with John Jay, in the year 1784, they stopped at Governor Livingston's, at Elizabethtown, and Governor Livingston then showed the marriage settlement deed to him and Mr. Jay, as a valid subsisting deed.

Governor Livingston was an ardent and decided whig during the revolution, was a part of that time in congress, and remained during the war, out of the British lines. Governor Livingston has been dead about 15 years or more.

Being cross-examined, he says he was a member of the legislature, and drew the bill of attainder, and then he had never heard of this marriage settlement.

Plaintiff's counsel then gave in evidence certain extracts from the journal of the house of assembly of the state of New York, as follows:

Friday 10 o'clock, February, 16, 1787. (Page 53.)—" A petition of Joanna Morris, on behalf of herself and her brothers and sister, relative to the estate forfeited to the people of this state, by the attainder of Roger Morris and Mary his wife, was read and referred to Mr. Hamilton, Mr. Sickles, Mr. Hedges, Mr. Jones, Mr. Wyckoff, Mr. Frost, Mr. Rockwell, Mr. Dubois,

Mr. Taulman, Mr. Snyder, Mr. Batcheller, and Mr. Savage."

Saturday, 10 o'clock, A. M. Feb. 24, 1787. (Page 65.)" Mr. Hamilton, from the committee to whom was referred the petition of Joanna Morris, on behalf of herself and the other children of Roger Morris and Mary his wife, setting forth that the said Roger and Mary had been attainted, and their estates sold and conveyed in fee simple; that by a settlement made previous to their intermarriage, the real estate of the said Mary was vested in Joanna Philipse and Beverly Robinson in fee, to certain uses, among others, after the decease of the said Roger and Mary, to the use of such child or ren as they should have betwem, and their heirs and assigns, and praying a law to restore to them the remainder of the said estate in fee-reported, that if the facts stated in the said petition are true, the ordinary course of law is competent to the relief of the petitioners, and that it is unnecessary for the legislature to interfere.

"Resolved, That the house do concur with the committee in the said report."

Josiah Ogden Hoffman, a witness for plaintiff, testified that he is acquainted with the handwriting of William Livingston and of Sarah Williams, the subscribing witnesses to said deed of marriage settlement now shown to him, and has seen them write respectively, and that the signatures to this deed are in their proper handwriting respectively. He further says that those witnesses are both dead.

Egbert Benson, being again called by plaintiff, says that the general practice of conveying freehold estates, in the late colony of New York, was by lease and release: that it was usual to take the acknowledgment or proof of the release, and especially in the case of married women; but it was not customary, nor has he ever known

an instance of proving or recording such a lease. He has recently made an examination in the records of this city in the register's office, and he finds no instance of such a recorded lease; on the contrary, the releases are there found alone recorded, with recitals of a lease merely.

Henry Livingston was again called by the plaintiff. He says that his father and his two brothers were in succession clerks of the county of Dutchess for about 70 years; that witness, during several years, acted as clerk in that office under his father, in recording deeds, searching the records, &c. and that he never knew an instance of proving or recording such a lease, given with a release, in the old mode of conveyancing.

Here the testimony was closed; and the plaintiff's counsel contended that if the lease connected with the release of marriage settlement was necessary to perfect the title of the plaintiff, the defendant was estopped by the recital in the release from denying the exist ence of such a lease; and if defendant was not estopped by that recital as a matter of law, then upon the evidence the jury ought to presume the due execution of the lease.

The case was summed up at great length and with much ability by Messrs. Van Buren and Webster for the state of New York, and by Messrs. Emmet* and Ogden for the plaintiff.

Judge Thompson, after some proliminary remarks upon the general outlines of the case, briefly stated to the jury the deduction of title, which had been given in evidence, from Adolph Philipse, the patentee, down to Mary Philipse, who afterwards intermarried with Roger Morris. That by the legal effect and operation of these several conveyances, Mary Philipse became seised in fee of a number of lots of land within the patent, among which was lot No. 5, in which the premises now in question

lie, some time about the year 1754. Down to this time no dispute exists between the parties in relation to this title, both parties claiming under the title then held by Mary Philipse. On the part of the defendant it is contended, that this title was in Roger Morris and Mary his wife, (Mary Philipse,) when they were attainted, in the year 1779, and passed over to the people of this state, under the statute confiscating their property. On the other side it is contended, that in the year 1758, when the marriage between Roger Morris and Mary Philipse was about to take place, a marriage settlement was made, the legal operation of which was to give to Morris and his wife a life estate, with a contingent remainder over to their children. So that the attainder of Morris and his wife attached upon their life estate only, and did not affect the interest of their children. That the claims of the children could not be asserted in a court of justice until the death of both their parents, which did not occur until within two or three years past.

It will be perceived, therefore, that the important inquiries in this case relate to their marriage settlement deed, purporting to have been executed in the year 1758.

These inquiries as they have been presented to the court and jury, may be considered under three distinct heads.

I. Was this deed duly executed on or about the time it bears date, so as to vest a legal interest in the children of Roger and Mary Morris, according to the provisions in the deed?

II. Whether if it was so executed, the estate which passed under it to the children was at any time after wards revested in Roger and Mary Morris, or either of them?

III. The legal effect and operation of the marriage settlement, and how far it was affected by the attainder of Roger Morris and his wife?

The two first branches of inquiry are matters of fact, which belong to

the jury to decide. of law for the court.

The last is matter

Although you are to judge and decide upon questions of fact, it is the duty of the court to aid you in the examination of the facts, so far, at least, as to call your attention to the evidence, and to suggest the rules of law by which you are to weigh and apply the testimony. And my only purpose on the present occasion will be, to endeavour to simplify your inquiries, and direct your attention to the real questions before you, stripped of much extraneous mitter that has been involved in the discussion.

1. As to the execution of the deed. This instrument purports to have been made by that kind of conveyance called a lease and release. The release only is now produced, it having been duly proved and recorded. And your first inquiry will be, whether this release was duly executed on or about the time it bears date.

In entering upon this inquiry, it will be proper for you to keep in mind, that it is an ancient transaction of nearly seventy years past; and you are not to expect living witnesses to be brought into court to testify before you. The witnesses to this deed are dead; and all that can be reasonably required is, that the transaction should have taken place according to the usual and ordinary course of business of that kind, and that the conduct of the parties to the deed has at all times been consistent with the title set up under it.

The circumstances that have been relied upon to establish the fact, that the deed was executed about the time it bears date, are briefly-That the provisions in it are of so complicated a nature, as to warrant the conclusion that the draftsman was a skilful law. yer. That Governor Livingston, one of the witnesses, was at that day an eminent counsellor of law, and that the deed was probably made under his advice and direction. And that his character forbids any presumption that it was antedated for the purpose of overreaching the attainder of Roger

and Mary Moris. Iu addition to this, you have the proof of the deed in the year 1787, on the oath of Governor Livingston, who swears that he saw it executed by all the parties, at or about the time it bears date. It will be for you to say, whether this evidence is not sufficient to satisfy you, that the release was duly executed at or near the date thereof.

The next inquiry in this branch of the case will be, whether this release was accompanied by a lease executed at the same time. This forms an important part of the case, as it will materially affect the legal effect and operation of the release. If there was no lease, the release would only operate as a bargain and sale, and pass the legal estate to Beverly Robinson and Joanna Philipse. But the statute of uses would not execute the uses declared in favour of the children and convert their interest into a legal estate. These uses would remain equitable interests only, and to be enforced in a court of chancery. So that, unless there was a lease accompanying the release, the plaintiff cannot recover in this action. But the remedy, if any, must be in a court of equity. The circumstances which have been proved and relied upon to authorise you to presume that a lease was duly made, are: That the common mode of conveyance at that day was by lease and release; that it is fairly presumable that this marriage settlement was drawn under the direction of Gov. Livingston, who well understood the purpose and necessity of a lease; that as matter of practice, it was not deemed important to preserve the lease; it was never customary to have it proved or acknowledged with the release; and that on examination of the records of deeds in this city and in the county of Dutchess, no instance was to be found where the lease had been recorded. And that such was the practice, is corroborated by all the conveyanccs given in evidence in this cause-where, although the releases have been acknowledged and recorded, the leases have not. It has been con

The

tended, however, on the part of the plaintiff, that the recital of the lease in the release according to the usual form of such conveyance, is conclusive evidence that a lease was made and executed, and that the defendant is estopped from denying it. court, however, does not think that the recital carries with it such conclusive effect. The general rule of law is, that recitals bind parties and privies. That this recital would be conclusive upon the grantors in the deed, and all claiming title under it, there can be but little doubt. If the defendant derived title under or through this deed, he might be estopped from denying that a lease was also made. But this deed is not the source of his title as now set up, nor does it form any part of it. He contends that the fee simple estate of Mary Philipse was not parted with by this deed, but was vested in her in 1779, and by her attainder became forfeited to the state; so that the defendant does not claim under this deed, and is not bound by the recital. It is therefore submitted to the jury to decide as matter of fact, whether a lease was made and executed or not: and if you shall find that there was, then the legal operation of the lease and release was to divest Mary Philipse of her fee simple estate, and to vest in her children a legal interest cognizable in a court of law, and the next inquiry will be,

II. Whether this fee simple estate was at any time afterwards, revested in Mary Philipse, either before or after her intermarriage with Roger Morris, so that the act of attainder of 1779 attached upon it.

And under this branch of the case, the first inquiry is, in what way this could be done. It seems to have been urged, on the part of the defendant, that it would be sufficient to redeliver and cancel the marriage settlement, without any reconveyance, and we have been told, that it has been so decided in the supreme court of the state of New Hampshire. The case, in which it is said to have been so decided, has not been shown to the