467*] "binding effect, until 1855, when the full period of twenty-five years would be completed. Adverse possession was a term well defined and understood in England; it was a possession such as was known, open and avowed, having in it nothing of concealment and secrecy; but showing that a title was relied on, strictly adverse to all and every opposing claim, because colorably legal. By the statute of New York for quieting titles, an adverse possession is required; and a mere possessio pedis with improvements of the property is defined to be adverse. Here was a new principle introduced, variant from the former acknowledged rule of law, and hence it must fail to be operative until the prescribed period of twenty-five years shall be fully ended and completed, which will not be until the year 1855. The plea of forty years' adverse quiet possession is unavailing, for a further reason which is presented on the record. It is shown, that so recently as 1822 the elders and deacons of this church, in rendering a list of their taxable property to the Chancellor, as the laws of New York required, represented this property given in by them, as having been devised to their church by John Haberdinck, denominating it "The Shoemakers' Field." This confession, voluntarily made, shows that they were then holding by the same tenure under which they originally entered. Nothing of adverse right, or insubordinate to complainants' title was then asserted; so far from it, they admit that their possession at that time was under and in pursuance of the devise made to them by our testator in 1723. This admission, presented on the record, excluded the idea set forth in the plea that an adverse possession for forty years has been held; it was a subordinate, and not an adverse possession. Neither by the plea, nor answer, was it shown that forty years before the filing of the bill, anything took place of the nature of ouster; or that any open, public, and notorious disclaimer had been made, and a new and different title asserted. The defendants rest merely on the limitation-the mere naked possession, claiming, as they say, "to have enjoyed the property in their demesne as of fee in severalty, holding adversely, etc." Claiming in fee is an inconclusive, insufficient plea. It should be more definite. It might be 468*] a claim openly or secretly made, in a way that he in reversion might know nothing of the disclaimer and ouster; and if so made, which the plea fails to explain, clearly it is wanting in those essentials which the decision of this court make necessary. 5 Wheat. 124; 9 Wheat. 288. judged that to make a plea of adverse possession good, it must show how, where, and after what manner it became adverse, that the complaining party might be enabled, through the notice afforded, to defend against it. This plea before the court was precisely similar; it asserted an adverse possession, without stating in what it consisted; the tendered issue was too broad to be met; it was not, as it should be, clear, full, and definite, and hence was rightfully overruled. The plea under consideration is in all respects alike, and should be subject to the decision there given. In both cases a mere reliance of adverse possession is insisted upon, omitting to show how or whence it was derived. The specific devise made, was to the minister, elders and deacons of the church, for the express purpose of paying the salary of the minister, and "to no other use and purpose whatever." The minister, then, was the holder, both of the use and the trust; and hence it was equivalent to or an actual bequest to the church in fee-simple. He proceeded to show that the disclaimer was insufficiently and badly pleaded; and that a plea of this description should be so presented that the complainants might know the persons against whom they should proceed; and cited 1 Montague's Pleas in Equity, 216; Equity Draftsman, 71. Mr. Lord, with whom was Mr. Wood, for the respondents: The only equitable relief sought by the bill, is discovery in aid of an action at law, [*469 partition of land held in common, and a declaration of an implied trust. To all these the statute of limitations and lapse of time are a bar at law and in equity; no express trust for the complainants can be pretended; and a trust for others does not prevent the possession of the trustee from being adverse. Piatt v. Vattier, 9 Peters, 415; Elmendorf v. Taylor, 10 Wheat. 168; Bogardus v. Trinity Church, 4 Paige, 178; S. C. 15 Wend. Rep. 111; Hunt v. Wickliff, 2 Peters, 208. To obviate the bar of the lapse of time, the bill sets out that the respondents entered under leases, but this is denied by the plea; and the plea is supported by the answer, and admitted to be true by not being put in issue. It is also objected that the plea is insufficient, because it does not set out how the possession was adverse. This is not true, in fact. It sets out an actual occupation, claiming title in fee, in severalty and without any trust for the complainants. The plea may be considered in two aspects: 1. As setting up a possession without reference to the will alleged in the bill, as the source of the respondents' title. Or, 2. As connected with that will. A case in all respects similar to the present, is at hand. 5 Sim. 640. 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 constiheld during the whole time; and that the re- tute adverse possession. In the case 5 Simceipts 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 renappeal 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-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 could never become confirmed by age; and wills, of all papers most liable to question from accident as well as want of skill in the writers, would be thrown out of the protection of the statute. Mere possession without any other circumstance shown is evidence of seisin in fee. Starkie Ev. 1191, note 9; Bull. N. P. 103. When evidence of title is given, it is then presumed in the absence of contrary proof, to be in subordination to the title, but this presumption is not made in the face of express proof of claim of title; but the possession is qualified by the claim of title, whether claimed as arising tortiously or otherwise. Bull. N. P. 104. Possession must be shown by the plaintiff in ejectment as part of his case, Bull. N. P. 102; Run. 470*] Eject. 340; and a possession with a claim adverse to the plaintiff certainly is not sufficient to supply this want of the plaintiff. Possession, actual pedis possessio, does not re-rations equally with religious, and to all conquire paper title as the only criterion to show its character. See 2 R. Stat. N. Y. 221, sec. 5 to 13; Ricard v. Williams, 7 Wheat. 105, where the claim of title qualified the possession, although no paper title was shown. Jackson v. Porter, 1 Paine, 645; Jackson v. Oltz, 8 Wend. 440; Jackson v. Woodruff, 1 Conn. 276; Jackson v. La Frambois, 8 Cowen R. 603. In all these cases the doctrine is distinctly announced in the language of the judges. See 2 Roscoe on Real Actions, 502. To require that the plea should show how the possession was hostile in its commencement is allowing the very evil which the statute is aimed at; the older the possession the more difficult the proof. Again, it is urged that, being a religious corporation, it is against the policy of the law that their possession commencing under a forbidden title should ever become confirmed. But all that the law does is simply to make the will void: it does not declare, nor can it be construed as limiting the operation of such a statute as that of limitations. This is doubting the statutory penalty, and that by implication. Besides, this argument would apply to all corpoveyances equally with wills. All the mass of property held by individuals, invested with corporate franchises, would be incapable of becoming sure of lapse of time. It is not an open question as to this cause, that corporations, even religious, may acquire title by possession, although commencing by fraud and wrong. Humbert v. Trinity Church, 24 Wend. Rep. 587; also, 15 Wend. 111; decisions of a court of last resort, binding this court on a question of local law, Livingston's Lessee v. Moore, 7 Peters, 542; also, see 16 East, 5. It is also urged that our holding these lands increased our annual income beyond our charter license. By our answer we show it not to 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 a per-subsequent or intermediate increase is not fect bar. But it is said that by not denying our entry under the devise we admit it, and the plea must be taken with that fact. This requires us to consider the possession in connection with the paper title. 2. By the will all the lands are devised to the respondents; no charge merely is granted, nor is any express trust created for the heir-at-law. By the plea, all holding as trustee for the complainant is denied. Our possession under this will, then, is a possession under color and claim of a title in fee, contrary to the title of the heir-at-law. It is said, however, that the will is void by the English mortmain acts, and so not capable of being the basis of an adverse possession. For the purpose of this argument we allow the will to be void: by virtue, not of the mortmain acts, but of the exception in the statute of wills (34 Hen. VIII. ch. 5), which statute was, in terms, re-enacted in New York to the time of the revision of 1830 (3 R. S. N. Y., Appendix, 51). But possession may be adverse if taken under a void deed. Cases above cited; also, Jackson v. White, 13 Johns. R. 118; Jackson v. Brinck, 471*] 5 Cowen R. 483; Jackson v. Woodruff, *1 Cowen R. 276; Jackson v. Wheat. 18 Johns. R. 40; Jackson v. Newton, 18 Johns. R. 355; Jackson v. Whitbeck, 6 Cowen R. 632. But it is said this doctrine only applies to voidable and not to void paper titles. Wills not conformable to the statute are always void. If made by a joint tenant, an infant, a feme covert, or without three witnesses, they are void: but will not a possession under such wills, for more than twenty years, bar an ejectment? within the prohibition. 2 Inst. 722, on the statute 39 Eliz. ch. 5; recognized, also, Vankliech v. Dutch Church, 6 Paige, 621, affirmed in error, 20 Wend. As to our fraudulently keeping down the income by making long leases at low rents, and selling at a premium, and investing it, it is denied in the plea and supporting answer. *3. But it is urged that, supposing [472 the will valid, a trust is created which is not within the statute of limitations nor barred from lapse of time. No express trust in favor of the complainants appears on the face of the bill. If a trust exist at all it is for the ministers of the Dutch church; it is not a trust for the complainants; and an implied trust is subject to the bar of lapse of time. Hovenden v. Lord Annesley, 2 Sch. & Lef. 624; Cholmondeley v. Clinton, 4 Bligh. O. S. 1; 2 Jack. & Walk. 138; 2 Meriv. 173, 357; Provost v. Gratz, 4 Wheat. 494; 7 Wheat. 116. In truth, however, it is not trust, but a charity; and if so, all surplus will go in augmentation of the charity: it being clear that the land is wholly given away from the heir-at-law. Attorney-General v. Wilson, 8 Mylne & Keen, 362; Thetford School case, 8 Rep. 130; Attorney-General v. Brazen Nose College, 8 Bligh. N. S. 377; Attorney-General v. Haberdasher's Company, 4 Bro. Ch. C. 106; Attorney-General v. Sparks, Ambler, 201. And lands given to a charity may be aliened through the aid of chancery if for the benefit of the charity. Dutch Church v. Mott, 8 Bligh. 458; 7 Paige, 79. The counsel also referred to the Statutes of Limitations, 21 Jac. 1, ch. 16, fr. Bul. N. P. 102; 1 Rev. L. N. Y. 185, sec. 2, 3, 5, (1813); 2 R. S. 292, (1830); also sec. 49, 50, 51, 52; Bradstreet v. Huntington, 5 Peters, 402. John Haberding thus became seized in severalty in fee of certain of these lots and cotenant in common of the undivided portion. No formal defects of the plea are pointed *Prior to the 7th February, 1723, John [*474 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 deive 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 lifeMr. 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 some 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 have attained had the subject of the controversy been less valuable, or the principles of law at issue between the parties alone been 473*] considered. The complainants are humble citizens, obscure and unknown; the defendants a wealthy and powerful corporation. They are, moreover, a religious body, professing, and it does not become me to intimate that these professions are not sincere, to appropriate their revenues as well as their services in the most praiseworthy objects of human attention. These circumstances are calculated to enlist the sympathies of all our best affections. Independently of these circumstances, the complainants have been unexpectedly deprived of the services of the distinguished counsel under whose advice this suit was originally instituted, and by whom it has until this, its last stage, been conducted, and by whom it was hoped it would be brought to a satisfactory and successful close. At this late and critical point in the case, they have been prevented by circumstances unforeseen and unavoidable, to be absent; and the entire weight of this responsibility has thus been devolved upon counsel comparatively strangers to the case. All that we can ask or hope, therefore, is, that due allowances shall be made for our situation, that the points of law which the case presents shall be thoroughly considered, the authorities on either side maturely weighed; and in full confidence that this will be done we find compensation for our own weakness, in the learning and wisdom of the court. It becomes important in such a case to bring our minds to a distinct understanding of what constitute the real and substantial points at is sue between the parties. The bill was filed by complainants in March, 1839. It avers in substance that John Haberdinck, together with four other persons named in the bill, were, prior to the 14th September, 1696, seized in feesimple as tenants in common, of a certain tract of land in the city of New York, then known by the name of the "Shoemakers' Field, or lands." Being so seized, these parties made a division of part of said land into one hundred and sixty; four lots, leaving a residue which still remained undivided, made partition among themselves of the one hundred and sixty-four lots, assigning to each tenant in common his particular portion in severalty, and continuing their joint interest in the undivided part. That a deed was made and a map of the property, effectuating and showing this proceeding. That defendants have for some time past been in possession of all the lots so held by Haberdinck in severalty, and have stated and claimed that they held under some devise or will of Haberdinck. That defendants are a religious corporation, incorporated under the laws of New York. That they have also obtained possession of the undivided lot, and allege that they have acquired it under some of the tenants in common. Complainants have applied to defendants, 1st. For an admission or statement of the will of Haberdinck, under which they claim to hold, and for permission to inspect and read the same; to enable them to proceed at law for the recovery of the property. 2d. For a list or schedule of the several lots held by them or their tenants under color and pretense of title derived from Haberdinck, and for any lease or assignment to them, and for the rent roll and an account. The defendants pretend that John Haberdinck was not so seized in fee; the contrary is charged by complainants to be the truth. That they held and now hold under a will of said John Haberdinck, and in pursuance of this allegation they did on or about the 7th March, 1822, in conformity with a statute of New York, make an account or inventory of their property, and return the same to the Chancellor, in which they represent that they hold said lands under the will of said John Haberdinck (prout the same). They aver said last will and testament of John Haberdinck to be a valid and lawful instrument, sufficient to vest said property in them; whereas complainants producing the will of John Haberdinck duly proved 7th February, 1723, aver it to be null and void; that it is in contravention of the law of the land, but that neverthe- [*475 less defendants entered and held, and continued to hold said land under it. That defendants at times pretend that they entered under a claim of title adverse and hostile to that of John Haberding, Jun., and have always held under such claim, and thus have acquired a valid title, whereas complainants charge the contrary to be true, and aver that defendants entered under certain leases of said John Haberdinck now expired, or under some other title derived from him and subordinate to his title and that of complainants, his heirs, and particularly under some long lease which expired between 1810 and 1822; that as late as 1810, in making a return and inventory of their property in conformity with the statute, they represent the same to be held by them under a devise of John Haberdinck. more than forty years since they sold it, and have received the money for their own use. 6. In general terms they traverse the particular right set up by complainants. The bill then sets forth the charter granted to defendants in May, 1696, setting forth the 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, num. 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 to 1820 of the yearly value of twenty thousand dollars, and from 1820 they have been of the yearly value of thirty thousand dollars. Independently of the averments in the bill which are thus met by the plea and answer, there are others which are not covered by *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, the object of testator's bounty has ceased to exist, and a trust results to the heir. That at all events the object of the bounty was a precise one; no benefit was conferred or designed to be bestowed directly upon defendants; but a simple trust for the maintenance of the minister; and that should this trust be a valid one 476*] the revenues arising from these lands have, for a series of years, largely exceeded what was required for this purpose, and that complainants are entitled, if the immediate devise to defendants be prohibited, and therefore void, to have the estate either subject in their hands to this trust, or discharge even of that. dinck as the foundation of their then title; that the will set out in the bill is the last will and testament of John Haberdinck, under which defendants claimed to hold; that they did not originally enter under a title adverse to that of complainants; that they have always held and now hold under a title subordinate to that of complainants' ancestor; that defendants were not competent to take and hold under a devise from John Haberdinck, that if competent to take at all, it was merely as trustees for a specific purpose; that the income of the estate is far larger than is required for the specific purpose designated in the will, viz., the maintenance of a minister or ministers; that the church in Garden Street is no longer in existence, nor is there any minister of such church. The bill avers, then, a prima facie case in the 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 travprima 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 of the disclaimer of a portion of the premises, is a mere naked assertion of an adverse possession for forty years. It avers that for all the time commencing forty years prior to the filing of the bill, viz., 25th March, 1799, until the time of filing the plea. 1. That defendants have been by themselves and their tenants in the sole and exclusive possession. principle of equity practice. Mitford, 295; 2 With all these averments unanswered, defendants set up as their sole ground of defense the possession of forty years, without any assertion of a patent, deed, agreement to convey, or other document to give validity or even color to their original entry and subsequent holding; without any allegation of an custer of the cotenants in common, and without any specification 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 exclusive right. 2. During all which time of possession the lands have been improved by buildings, and inclosed with a substantial inclosure. 4. During all this time they have been in the sole and exclusive possession, receipt, and enjoyment of the rents, issues, and profits, etc., claiming the right to receive and enjoy the same. 5. As to a portion of the land, they aver that This we conceive to be both defective in form and insufficient in substance. 1. The defectiveness in form is not so material, but as our learned opponents have asserted the formal sufficiency and propriety of the pleadings, it may be as well briefly to examine this position. The plea presents a [*478 single point of defense to the entire bill; to the prayer for discovery and the prayer for an ac- | then, the addition of such circumstances be ecount; to the claim of a tenant in severalty sential to the validity of this plea, in the aband 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 trust, either to the whole property, or to so much of it as may remain after fulfilling the specific trust created by the will. If this plea is bad as to one of these foundations of claim it must be overruled. Now, it is unnecessary to advert particularly to the New York statutes of limitations. They have been read to the court. It may be as well, however, to remark that the statutes of limitations in their terms apply only to suits at law, and that equity by analogy extends their provisions to suits in chancery. That these statutes prescribe different terms of limitations to suits of different characters, one period is fixed as a bar to an account, another to an ejectment, etc. There is no one applicable to each and every of the claims of complainant. Nor is there any statute of limitations of New York which prescribes the term of forty years as a bar to any species of action, or to any kind of recovery. Twenty years, the bar to ejectment, is the longest period applicable to either of the demands now set up, to some of them, especially a case of resulting trust in favor of the heir upon the termination of the object of the bounty provided for by the testator, or for the surplus after fully meeting that trust, it is believed that no statute of limitations exists in New York, nor has this court of equity established such a bar. So in certain cases even a trust interest may be barred by the statute of limitations, but so far from this being the general rule the reverse is the case, and it is only under special circumstances that such a bar is available by a trustee against his cestui que trust. Wherever the relation of trustee and cestui que trust is distinctly created, is real and substantial, and not merely the creature of implication, where equity will recognize its existence and enforce its obligations, the possession by the trustee cannot be converted into one of an adverse character, and lapse of time will interpose no bar. The trust is here averred in the bill, it is denied by counsel in argument, but neither the plea nor answer controvert the allegation. The bill also contains the precise averments which show the legal existence of a trust. These averments are unnoticed in the plea or answer, and must, consequently, on this argument be assumed to be true. Nor is there any weight in the objection raised by counsel in the argument, that the claim of a trust is incompatible with the general scope of the bill. That bill is framed with a double aspect; one of the views which it presents is, that if it was the design of the testator to provide a "fund for [*480 the specific purpose mentioned in his will, which is clearly the case from the strong affirmative as well as negative words employed by him, 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 inboth. 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 ful479*] 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; Roper v. Ratcliffe, 2 Eq. Cas. Abr. 508. So when a devise is made to trustees for a specific or particular object, and that object does not require the application of the entire fund or exhaust the whole appropriation, the surplus will be decreed to the heir even though a legatee. 2 Powell on Dev. 34, 35; Starkey v. Brooke, 1 P. Wms. 390; Ambl. 165; 3 Dow. 148. Nor is the trust alleged in the bill one which by writers on equity law is designated as a constructive trust, where a party for the furtherance of justice will be decreed to hold a particular estate as trustee for the rightful owner. Boone v. Chiles, 10 Peters, 177. The very instrument which creates the estate, by its own force and legal interpretation clothes it with the trust, first for the minister intended to be provided for; after this for the heir. When 2. The more important question, however, is, is this plea insufficient and consequently bad in substance? We apprehend it is, both from the defects of the plea in general, and especially under the circumstances averred in the bill. There have been certain general principles laid down by the counsel for the appellee which it is unnecessary for us to controvert in the abstract. It is stated as a principle of law that an adverse possession may be pleaded as a bar against the recovery by a tenant in common. In this abstract form the proposition is not denied. It may, under circumstances, be a good defense, in others it may not. There must be something superadded, such as ouster of the co-tenant to render it available. While we admit that it may be made an effectual bar, we deny that in all cases it necessarily is so. If, |