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year 1855.

467"] 'binding effect, until 1855, when the judged that to make a plea of adverse possesfull period of twenty-five years would be com-sion good, it must show how, where, and after pleted.

wbat manner it became adverse, that the com. Adverse possession was a term well defined plaining party might be enabled, through the and understood in England; it was a possession notice afforded, to defend against it. This plea such as was known, open and avowed, having before the court was precisely similar; it asin it nothing of concealment and secrecy; but serted an adverse possession, without stating in showing that a title was relied on, strictly ad. what it consisted; the tendered issue was too verse to all and every opposing claim, because broad to be met; it was not, as it should be, colorably legal.

clear, full, and definite, and hence was right. By the statute of New York for quieting fully overruled. The plea under consideration titles, an adverse possession is required; and a is in all respects alike, and should be subject mere possessio pedis with improvements of the to the decision there given. In both cases a property is defined to be adverse. Here was mere reliance of adverse possession is insisted a new principle introduced, variant from the upon, omitting to show how or whence it was former acknowledged rule of law, and hence derived. it must fail to be operative until the prescribed The specific devise made, was to the minis. period of twenty-five years shall be fully ended ter, elders and deacons of the church, for the and completed, which will not be until the express purpose of paying the salary of the

minister, and “to no other use and purpose The plea of forty years' adverse quiet posses. whatever.” The minister, then, was the holder, sion is unavailing, for a further reason which both of the use and the trust; and hence it was is presented on the record. It is shown, that equivalent to or an actual bequest to the church 80 recently as 1822 the elders and deacons of in fee-simple. this church, in rendering a list of their taxable He proceeded to show that the disclaimer property to the Chancellor, as the laws of New was insufficiently and badly pleaded; and that York required, represented this property given a plea of this description should be so presented in by them, as having been devised to their that the complainants might know the persons church by John Haberdinck, denominating it against whom they should proceed; and cited "The Shoemakers' Field." This confession, 1 Montague's Pleas in Equity, 216; Equity voluntarily made, shows that they were then Draftsman, 71. holding by the same tenure under which they Mr. Lord, with whom was Mr. Wood, for the originally entered. Nothing of adverse right, respondents: or insubordinate to complainants' title was then The only equitable relief sought by the bill, asserted; so far from it, they admit that is discovery in "aid of an action at law, ('469 their possession at that time was under and in partition of land held in common, and a dec. pursuance of the devise made to them by our laration of an implied trust. To all these the testator in 1723. This admission, presented on statute of limitations and lapse of time are a the record, excluded the idea set forth in the bar at law and in equity; no express trust for plea that an adverse possession for forty years the complainants can be pretended; and a trust has been held; it was a subordinate, and not an for others does not prevent the possession of the adverse possession.

trustee from being adverse. Piatt v. Vattier, 9 Neither by the plea, nor answer, was it Peters, 415; Elmendorf v. Taylor, 10 Wheat. shown that forty years before the filing of the 168; Bogardus v. Trinity Church, 4 Paige, 178; bill, anything took place of the nature of oust. S. C. 15 Wend. Rep. 111; Hunt v. Wickliff, 2 er; or that any open, public, and notorious dis. Peters, 208. claimer had been made, and a new and different To obviate the bar of the lapse of time, the title asserted. The defendants rest merely on bill sets out that the respondents entered under the limitation-the mere naked possession, leases, but this is denied by the plea; and the claiming, as they say, “to have enjoyed the plea is supported by the answer, and admitted property in their demesne as of fee in severalty, to be true by not being put in issue. holding adversely, etc."

It is also objected that the plea is insufficient, Claiming in fee is an inconclusive, insufficient because it does not set out how the possession plea. It should be more definite. It might be was adverse. This is not true, in fact. It sets 468"] a claim openly or secretly made, *in a out an actual occupation, claiming title in fee, way that he in reversion might know nothing in severalty and without any trust for the comof the disclaimer and ouster; and if so made, plainants. which the plea fails to explain, clearly it is The plea may be considered in two aspects: wanting in those essentials which the decision 1. As setting up a possession without reference of this court make necessary. 5 Wheat. 124; to the will alleged in the bill, as the source of 9. Wheat. 288.

the respondents' title. Or, 2. As connected A case in all respects similar to the present, with that will. is at hand. 5 Sim. 140. There the defend. 1. Without reference, then, to the alleged ants had been in possession for seventy years; paper title, the possession is alleged in the plea and to a bill filed by the remainderman to re- to be an actual occupancy, by inclosure and cover the estate, a plea was put in stating that improvement, accompanied with claim of title adverse possession of the property had been in severalty in fee. This is sufficient to consti. held during the whole time; and that the re- tute adverse possession.. In the case 6 Sim. ceipts and profits had been received. The ons, 645, the plea averred that the possession Vice-Chancellor, overruled the plea, and on an was adverse, without showing the facts ren. appeal taken, his decision was affirmed by dering it adverse. Here we show the facts, and Chancellor Brougham. Mylne & Keen, 738. upon them the court see the possession to be

By the concurrent opinion of both it was ad.1 adverse; the plea does not withdraw from the

court the legal question as to the character of Can the question of voidness be agitated after the possession.

an indefinite lapse of time? If so, such titles Mere possession without any other circum- could never become confirmed by age; and wills, stance shown is evidence of seisin in fee. of all papers most liable to question from acStarkie Ev. 1191, note 9; Bull. N. P. 103. cident as well as want of skill in the writers, When evidence of title is given, it is then pre- would be thrown out of the protection of the sumed in the absence of contrary proof, to be statute. in subordination to the title, but this presump Again, it is urged that, being a religious tion is not made in the face of express of of corporation, it is the policy of the law claim of title; but the possession is qualified by that their possession commencing under a for: the claim of title, whether claimed as arising bidden title should ever become confirmed. tortiously or otherwise. Bull. N. P. 104. Pos. But all that the law does is simply to make the session must be shown by the plaintiff in eject- will void: it does not declare, nor can it be conment as part of his case, Bull. N. P. 102; Run. strued as limiting the operation of such a stat. 470*] Eject. 340; and a possession with a ute as that of limitations. This is doubting the claim adverse to the plaintiff certainly is not statutory penalty, and that by implication. Besufficient to supply this want of the plaintiff. sides, this argument would apply to all corpo. Possession, actual pedis possessio, does not re- rations equally with religious, and to all conquire paper title as the only criterion to show veyances equally with wills. All the mass of its character. See 2 R. Stat. N. Y. 221, sec. 6 property held by individuals, invested with to 13; Ricard v. Williams, 7 Wheat. 105, where corporate franchises, would be incapable of bethe claim of title qualified the possession, al- coming sure of lapse of time. It is not an open though no paper title was shown. Jackson v. question as to this cause, that corporations, Porter, 1 Paine, 645; Jackson v. Oltz, 8 Wend. even religious, may acquire title by possession, 440; Jackson v. Woodruff

, 1 Conn. 276; Jack. although commencing by fraud and wrong. son v. La Frambois, 8 Cowen R. 603. In all Humbert v. Trinity Church, 24 Wend. Rep. these cases the doctrine is distinctly announced 587; also, 15 Wend. 111; decisions of a court in the language of the judges. See 2 Roscoe of last resort, binding this court on a question on Real Actions, 502.

of local law, Livingston's Lessee v. Moore, 7 To require that the plea should show how Peters, 542; also, see 16 East, 5. the possession was hostile in its commence It is also urged that our holding these lands ment is allowing the very evil which the stat, increased our annual income beyond our char. ute is aimed at; the older the possession the ter license. By our answer we show it not to more difficult the proof.

be so at the time of our entry and at the date If, then, the possession is allowed to stand when we allege our adverse possession. Any alone, it is clearly adverse, and the plea e per- subsequent or intermediate increase is not fect bar.

within the prohibition. 2 Inst. 722, on the But it is said that by not denying our entry statute 39 Eliz. ch. 5; recognized, also, Van. under the devise we admit it, and the plea nust kliech v. Dutch Church, 6 Paige, 621, affirmed be taken with that fact. This requires us to in error, 20 Wend. consider the possession in connection with the As to our fraudulently keeping down the in.

come by making long leases at low rents, and 2. By the will all the lands are devised to the selling at a premium, and investing it, it is respondents; no charge merely is granted, nor denied in the plea and supporting answer. is any express trust created for the heir-at-law. *3. But it is urged that, supposing ("472 By the plea, all holding as trustee for the com- the will valid, a trust is created which is not plainant is denied.

within the statute of limitations nor barred Our possession under this will, then, 18 a from lapse of time. possession under color and claim of a title in No express trust in favor of the complainfee, contrary to the title of the heir-at-law. ants appears on the face of the bill. If a trust

It is said, however, that the will is void by exist at all it is for the ministers of the Dutch the English mortmain acts, and so not capable church; it is not a trust for the complainants; of being the basis of an adverse possession. For and an implied trust is subject to the bar of the purpose of this argument we allow the will lapse of time. Hovenden v. Lord Annesley, 2 to be void: by virtue, not of the mortmain acts, Sch. & Lef. 624; Cholmondeley v. Clinton, 4 but of the exception in the statute of wills (34 Bligh. 0. S. 1; 2 Jack. & Walk. 138; 2 Meriv. Hen. VIII. ch. 5), which statute was, in terms, 173, 357; Provost v. Gratz, 4 Wheat. 494; 7 re-enacted in New York to the time of the re- Wheat. 116. In truth, however, it is not a vision of 1830 (3 R. S. N. Y., Appendix, 51). trust, but a charity; and if so, all surplus will

But possession may be adverse if taken under go in augmentation of the charity: it being a void deed. Cases above cited; also, Jackson clear that the land is wholly given away from v. White, 13 Johns. R. 118; Jackson v. Brinck, the heir-at-law. Attorney-General v. Wilson, 8 471"] 6 Cowen R. 483; Jackson v. Woodruff, *1 Mylne & Keen, 362; Thetford School case, 8 Cowen R. 276; Jackson v. Wheat. 18 Johns. Rep. 130; Attorney-General v. Brazen Nose R. 40; Jackson v. Newton, 18 Johns. R. 355; College, 8 Bligh. N. S. 377; Attorney-General Jackson v. Whitbeck, 6 Cowen R. 632.

v. Haberdasher's Company, 4 Bro. Ch. C. 108; But it is said this doctrine only applies to Attorney-General v. Sparks, Ambler, 201. And voidable and not to void paper titles. Wills not lands given to a charity may be aliened through conformable to the statute are always void. If the aid of chancery if for the benefit of the made by a joint tenant, an infant, a feme charity. Dutch Church v. Mott, 8 Bligh. 458; covert, or without three witnesses, they are 7 Paige, 79. void: but will not a possession under such wills, The counsel also referred to the Statutes of for more than twenty years, bar an ejectment i Limitations, 21 Jac. 1, ch. 18, fr. Bul. N. P.

paper title.

some

102; 1 Rev. L. N. Y. 185, sec. 2, 3, 5, (1813); John Haberding thus became seized in rove 2 R. S. 202, (1830); also sec. 49, 50, 51, 52; eralty in fee of certain of these lots and coBradstreet v. Huntington, 5 Peters, 402. tenant in common of the undivided portion

No formal defects of the plea are pointed *Prior to the 7th February, 1723, John (5474 out; the answer supports the plea by meeting Haberding and his wife both died without issue. every matter in the bill stated as tending to the complainants and one Peter Harpending countervail the plea by qualifying the posses are averred to be his heirs-at-law, and that no sion; if such answer is too general, that is sub- legal conveyance of any description has been ject of exception; the plea will not be defect: made of said property, but that the same de. ive on account of the answer, unless material scended to and vested in the said complainants allegations are left unanswered, not where and Peter Harpending as his heirs, who as they are answered but not with sufficient mi. such are absolutely seized of and entitled to nuteness. Story's Eq. Pl. 516, 536, 674, 675, 692. said lands. That John Haberdinck in his life.

Mr. Coxe, in reply. The large amount of time made a lease of the said premises, or a property involved in this case, and zeal and part thereof, for ninety-nine years, or ability with which the defendants have resisted other long term, the details of which as well as the complainants' demand, have conferred the date are unknown to complainants. upon it an importance to which it never could That defendants have for some time past have attained had the subject of the contro been in possession of all the lots so held by Ha. versy been less valuable, or the principles of berdinck in severalty, and have stated and law at issue between the parties alone been claimed that they held under some devise or 473*] considered. The complainants "are will of Haberdinck. That defendants are a humble citizens, obscure and unknown; the religious corporation, incorporated under the defendants a wealthy and powerful corpora- laws of New York. That they have also obtion. They are, moreover, a religious body, tained possession of the undivided lot, and alprofessing, and it does not become me to inti- lege that they have acquired it under some of mate that these professions are not sincere, to the tenants in common. appropriate their revenues as well as their ser Complainants have applied to defendants, vices in the most praiseworthy objects of hu- (1st. For an admission or statement of the will man attention. These circumstances are cal. of Haberdinck, under which they claim to hold, culated to enlist the sympathies of all our best and for permission to inspect and read the affections.

same; to enable them to proceed at law for the Independently of these circumstances, the recovery of the property. 2d. For a list or complainants have been unexpectedly deprived schedule of the several lots held by them or of the services of the distinguished counsel their tenants under color and pretense of title under whose advice this suit was originally in derived from Haberdinck, and for any lease or stituted, and by whom it has until this, its last | assignment to them, and for the rent roll and stage, been conducted, and by whom it was an account. hoped it would be brought to a satisfactory and The defendants pretend that John Habersuccessful close. At this late and critical point dinck was not so seized in fee; the contrary in the case, they have been prevented by cir- is charged by complainants to be the truth. cumstances unforeseen and unavoidable, to be That they held and now hold under a will of absent; and the entire weight of this responsi: said John Haberdinck, and in pursuance of bility has thus been devolved upon counsel this allegation they did on or about the 7th comparatively strangers to the case. All that March, 1822, in conformity with a statute of we can ask or hope, therefore, is, that due al- New York, make an account or inventory of lowances shall be made for our situation, that their property, and return the same to the the points of law which the case presents shall Chancellor, in which they represent that they be thoroughly considered, the authorities on hold said lands under the will of said John either side maturely weighed; and in full con- Haberdinck (prout the same). They aver said fidence that this will be done we find compen- last will and testament of John Haberdinck to sation for our own weakness, in the learning be a valid and lawful instrument, sufficient to and wisdom of the court.

vest said property in them; whereas complain. It becomes important in such a case to bring ants producing the will of John Haberdinck our minds to a distinct understanding of what duly proved 7th February, 1723, aver it to be constitute the real and substantial points at is. null and void; that it is in contravention of the sue between the parties. The bill was filed by law of the land, *but that neverthe ('475 complainants in March, 1839. It avers in sub- less defendants entered and held, and contin. stance that John Haberdinck, together with ued to hold said land under it. four other persons named in the bill, were, That defendants at times pretend that they prior to the 14th September, 1696, seized in fee. entered under a claim of title adverse and hos. simple as tenants in common, of a certain tract tile to that of John Haberding, Jun., and have of land in the city of New York, then known by, always held under such claim, and thus have the name of the "Shoemakers' Field, or lands.” acquired a valid title, whereas complainants Being so seized, these parties made a division charge the contrary to be true, and aver that of part of said land into one hundred and sixty; defendants entered under certain leases of said four lots, leaving a residue which still remained undivided, made partition among themselves of John Haberdinck now expired, or under some the one hundred and sixty-four lots, assigning other title derived from him and subordinate to each tenant in common his particular por to his title and that of complainants, his heirs, tion in severalty, and continuing their joint and particularly under some long lease which interest in the undivided part. That a deed expired between 1810 and 1822; that as late as was made and a map of the property, effectuat. 1810, in making a return and inventory of ing and showing this proceeding.

their property in conformity with the statuta,

num.

they represent the same to be held by them more than forty years since they sold it, and under a devise of John Haberdinck.

have received the money for their own use. The bill then sets forth the charter granted 6. In general terms they traverse the partic. to defendants in May, 1696, setting forth the ular right set up by complainants. object of the incorporation; the power granted So far, then, as there are affirmative averof holding lands within the amount of two hun- ments made in the plea and answer, the dedred pounds or five hundred dollars per an. fense set up is, in its whole length and breadth,

That the annual value of the lands held an assertion of a possession for forty years by defendants at the date of the charter, and under a claim of title. So far as it negatives or for twenty years past, has been at least ten traverses the averments in the bill, it denies thousand dollars. That the lots claimed by de- any joint estate with complainants, or as fendants under John Haberdinck are of great trustee for complainants, or under any lease value, greatly exceeding what by law they were from complainant's ancestor, or under any title authorized to hold; from 1780 to 1800 of the subordinate to that of complainants. yearly value of ten thousand dollars; from 1800 Independently of the averments in the bill to 1820 of the yearly value of twenty thousand which are thus met by the plea and answer, dollars, and from 1820 they have been of the there are others which are not covered by yearly value of thirty thousand dollars. *either. Among these it is only neces. [*477

It avers the entire invalidity of the devise sary to advert to some of the more important. and the incapacity of defendants to take and It is not denied that the original entry of dehold the land; but that if this be not so, that fendants was avowedly under and by virtue of the devise is for a specific object, the mainte. the will of John Haberdinck; that as regards a nance of the minister of the church then held part of the premises, they originally entered by defendants in Garden Street, which was the under the title of parties claiming to hold as only church held at the time of the devise tenants in common with complainants' ancestor; under the charter; that this church has long that they aver they hold under the will of John since been extinct, the same having been sold Haberdinck, set out in the bill; that in March, by defendants, and that there being no minis. 1822, they recognize the will of John Haberter such as alone was contemplated by testator, i dinck as the foundation their then title; that the object of testator's bounty has ceased to the will set out in the bill is the last will and exist, and a trust results to the heir. That at testament of John Haberdinck, under which all events the object of the bounty was a pre defendants claimed to hold; that they did not cise one; no benefit was conferred or designed originally enter under a title adverse to that of to be bestowed directly upon defendants; but a complainants; that they have always held and simple trust for the maintenance of the minis. now hold under a title subordinate to that of ter; and that should this trust be a valid one complainants' ancestor; that defendants were 476*] the revenues *arising from these lands not competent to take and hold under a devise have, for a series of years, largely exceeded from John Haberdinck, that if competent to what was required for this purpose, and that take at all, it was merely as trustees for a specomplainants are entitled, if the immediate cific purpose; that the income of the estate is devise to defendants be prohibited, and there far larger than is required for the specific purfore void, to have the estate either subject in pose designated in the will, viz., the maintetheir hands to this trust, or discharge even nance of a minister or ministers; that the of that.

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church in Garden Street is no longer in existThe bill avers, then, a prima facie case in the ence, nor is there any minister of such church. complainants. By not demurring to the bill, The averments in the bill are full and preit is admitted that the case thus exhibited is cise upon all these points, and not being trav. prima facie a case of right in them. It is met ersed in the plea or answer, they are impliedly Ly a plea, which, so far as it is material to ex. admitted to be true. This is a well-established amine it on the present occasion, and exclusive principle of equity practice. Mitford, 295; 2 of the disclaimer of a portion of the premises, Dan. Ch. Pr. 98; Sto. Eq. Rep. 538, sec. 694; is a mere naked assertion of an adverse pos- Bogardus v. Trinity Church, 4 Paige, 178; 2 session for forty years. It avers that for all Sch. & Lef. 727. the time commencing forty years prior to the With all these averments unanswered, defiling of the bill, viz., 25th March, 1799, until fendants set up as their sole ground of defense the time of filing the plea.

the possession of forty years, without any as1. That defendants have been by themselves sertion of a patent, deed, agreement to convey, and their tenants in the sole and exclusive pos. or other document to give validity or even color session.

to their original entry and subsequent holding; 2. During all which time of possession the without any allegation of an custer of the colands have been improved by buildings, and tenants in common, and without any specificainclosed with a substantial inclosure.

tion of the time when, or the circumstances 3. During all this time defendants have act- under which the original character of the posually occupied and possessed said lands, claim. session became changed and assumed a hostile ing and enjoying the same as being seized there type. of in fee-simple, and in their own sole and ex This we conceive to be both defective in form clusive right.

and insufficient in substance. 4. During all this time they have been in the 1. The defectiveness in form is not so mate. sole and exclusive possession, receipt, and en- rial, but as our learned opponents have asserted joyment of the rents, issues, and profits, etc., the formal sufficiency and propriety of the claiming the right to receive and enjoy the pleadings, it may be as well briefly to examine

this position. The plea presents a [*478 5. As to a portion of the land, they ever that single point of defense to the entire bill; to the

same.

prayer for discovery and the prayer for an ac- then, the addition of such circumstances bo cocount; to the claim of a tenant in severalty sential to the validity of this plea, in the ab. and that of a co-tenant in common with de- sence of those circumstances, or without the fendants; to the title of complainants as found proper averment of them, the plea is defective. ed upon the original invalidity of the will 5 Wheat. 116, 124; 7 Wheat. 120; 24 Wend. which lies at the root of defendant's possession, 587, 602. and that which asserts a right as cestui que So in certain cases even a trust interest may trust, either to the whole property, or to 80 be barred by the statute of limitations, but so much of it as may remain after fulfilling the far from this being the general rule the reverse specific trust created by the will. If this plea is the case, and it is only under special circumis bad as to one of these foundations of claim stances that such a bar is available by a trustee it must be overruled. Now, it is unnecessary to against his cestui que trust. Wherever the readvert particularly to the New York statutes of lation of trustee and cestui que trust is dislimitations. They have been read to the court. tinctly created, is real and substantial, and not It may be as weli, however, to remark that the merely the creature of implication, where equistatutes of limitations in their terms apply ty will recognize its existence and enforce its only to suits at law, and that equity by analogy obligations, the possession by the trustee canextends their provisions to suits in chancery, not be converted into one of an adverse char. That these statutes prescribe different terms of acter, and lapse of time will interpose no bar. limitations to suits of different characters, one The trust is here averred in the bill, it is denied period is fixed as a bar to an account, another by counsel in argument, but neither the plea to an ejectment, etc. There is no one ap- nor answer controvert the allegation. The bill plicable to each and every of the claims of com- also contains the precise averments which plainant.

show the legal existence of a trust. These Nor is there any statute of limitations of averments are unnoticed in the plea or answer, New York which prescribes the term of forty and must, consequently, on this argument be years as a bar to any species of action, or to assumed to be true. Nor is there any weight any kind of recovery. Twenty years, the bar to in the objection raised by counsel in the arguejectment, is the longest period applicable to ment, that the claim of a trust is incompatible either of the demands now set up, to some of with the general scope of the bill. That' bill is them, especially a case of resulting trust in framed with a double aspect; one of the views favor of the heir upon the termination of the which it presents is, that if it was the design object of the bounty provided for by the of the testator to provide a "fund for [*480 testator, or for the surplus after fully meeting the specific purpose mentioned in his will, which that trust, it is believed that no statute of is clearly the case from the strong affirmative limitations exists in New York, nor has this as well as negative words employed by him, court of equity established such a bar.

if no bounty was designed beyond this specific Even in reference to those parts of the case purpose of maintaining a minister or ministers, to which those statutes create a specific bar, if the defendants could take the property devised there being no such period as forty years fixed, as trustee, then after performing this duty, and but a shorter period, the plea of forty years is executing the design, the surplus belongs to the vicious, inasmuch as it tenders an immaterial heirs, and the relationship of trustee and cestui issue. The forms of pleading in courts of que trust is established between complainants equity are not so precisely fixed as at common and the church. So if the object of the bounty law, but there are certain precise rules founded ceases to exist, as is also charged in this case, in reason, which must and ought to govern courts of equity do not regard the forms of in. both. There is no better criterion by which to struments; they look to the substance and the judge of the sufficiency of a plea, than that intent, and give that construction which is conwhich is furnished by the inquiry, will its de sistent with such intent. Flagg v. Mann, 2 cision finally and necessarily decide the case? Sumn. 487; Levin on Trusts, 168, etc. Where If a party pleads a bar of forty years, when the lands are devised for a specific purpose, as for statute makes twenty or six years a bar, it re- the payment of legacies, after the trust is ful. 479*] sults necessarily *that the decision upon filled, there is a resulting trust in favor of the the fact against the party pleading it is imma- heir-at-law. 2 Powell on Dev. 32; Culpepper terial. Com. Dig. tit. Pleader.

v. Aston, 2 Ch. Cas. 115, 223; 9 Mod. 171; 2. The more important question, however, Roper v. Ratcliffe, ? Eq. Cas. Abr. 508. So is, is this plea insufficient and consequently bad when a devise is made to trustees for a specific in substance? We apprehend it is, both from or particular object, and that object does not the defects of the plea in general, and especial require the application of the entire fund or ly under the circumstances averred in the bill. exhaust the whole appropriation, the surplus

There have been certain general principles will be decreed to the heir even though a leg. laid down by the counsel for the appellee which atee. 2 Powell on Dev. 34, 35; Starkey v. it is unnecessary for us to controvert in the ab- Brooke, 1 P. Wms. 390; Ambl. 165; 3 Dow. stract. It is stated as a principle of law that 148. Nor is the trust alleged in the bill one an adverse possession may be pleaded as a bar which by writers on equity law is designated as against the recovery by a tenant in common. a constructive trust, where a party for the fur. In this abstract form the proposition is not de- therance of justice will be decreed to hold nied. It may, under circumstances, be a good particular estate as trustee for the rightful defense, in others it may not. There must be owner. Boone v. Chiles, 10 Peters, 177. The something superadded, such as ouster of the very instrument which creates the estate, by its co-tenant to render it available. While we ad- own force and legal interpretation clothes it mit that it may be made an effectual bar, we with the trust, first for the minister intended to deny that in all cases it necessarily is so. If, be provided for; after this for the heir. Wben

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