“ Persons claiming an interest in lands by marriage settlement, are one of the classes put by the treaty; and their 'just rights' are the rights they had when the treaty was made. These rights were fixed at the time of the treaty, by the marriage settlements, and they were to enter on their estates on the death of the tenants for life, without any responsibility for the improvements placed upon them during the tenancy.
But here is a law of New York, passed three years after the treaty, which declares that they shall not enter on their estates without paying the full value of those improvements. ”

“ If she neither left children nor made a will, the estate would go to her own right heirs. In no event was it to be divested from her right heirs to the heirs of Morris, unless she should desire to have it so; and thus the true object of the settlement was no more than to point out two events, in either of which the transmission of the estate to her right heirs should be intercepted. To use popular language, the estate is not vested in the children by the deed; it is to be settled on them, if there should be children surviving the parents. ”

“ Suppose they had sold their estate for life, stipulating that the purchasers, before the property should be taken from them after their decease by the remainderman, should be paid for all buildings and improvements made on the land. Would such a covenant have operated on the children? Under the deed of settlement no power thus to charge the fee was reserved. When therefore the state of New York took the estate of Morris and wife, they held it as it had been held, and they succeeded to them as tenants for life, with no other powers over the estate than they had. ”

“ Suppose another child born, how can it go back? It never can by shifting use; for there can be no conveyance by shifting use, which conveyance is not provided in the deed. There is no provision in the deed that if the estate has been once vested in the right heirs of the children, it shall afterwards be divested. When the estate has once gone to the right heirs of the children, it is irrevocable-the whole force of the deed is spent.
Besides, the result would be, that to preserve the fee, to keep it safe, it should be transmitted to the Morris family, and be subject to forfeiture. ”

“ As to the recital of the lease in the deed of release; how far does it bind the plaintiff in error, and the state of New York, under which he claims?
It is admitted that recitals estop the party to the deed, himself and his heirs; because the heir is bound by the covenants of his ancestor. They also affect every person claiming under the instrument, unless it was offered as presumptive evidence of a grant in order to support a possession which could not be accounted for but on the supposition of such grant. ”

“ Suppose the children had been put into the act of attainder, they could have pleaded the treaty, because they had an interest in the land; that is, a title to the land itself, under the marriage settlement. This was their 'just right,' and the confiscation act would have been an impediment. 2. Morris and wife might have sued in their life time, for they had an interest in the land under a marriage settlement. 3. The comprehensive term 'or otherwise,' would have let in every body named in the act. This would have repealed all the confiscation acts at once; which the treaty did not do. ”

“ In the first place, the plaintiff has produced the ordinary and usual evidence of the execution of the deed, has shown that governor Livingston was the subscribing witness, and that in 1787 he went before judge Hobart and made the usual and ordinary proof of the execution of the deed; such as was sufficient to entitle the deed to be recorded: the hand writing of the witnesses who are dead has also been proved. Upon this proof the prima facie presumption of law is, that the deed was executed in all due form, to give it force and validity ”

“ No one ever saw it; it was not shown to the legislature. Perhaps, on this evidence, and its effects, the judge did not misdirect the jury.
This, though perhaps prima facie proof, was the slightest of all proof. No actual delivery shown, no possession of the deed by the grantees. Now suppose a marriage had not taken place, and the trustees had set up this deed; it would have been said at once that the presumption of delivery was overruled. Any thing else that carries an equal presumption destroys the prima facie proof. ”

“ The doctrine, that the recital is evidence against the defendant, goes the whole length of determining that an admission, made by any person through whom a title has passed, binds every one to whom the title may come; and that a deed, to which a party is a stranger, and under which there has been no holding, not only binds him, by way of divesting the title of his grantor, but that he is also bound by any admission it may contain. The king is not bound by estoppels. ”

“ To deny him possession, or a writ of possession, until he should pay for all such improvements, was an impediment to his just rights, and a confiscation, pro tanto, of his estate in the lands. The argument at the bar supposes that there is a natural equity to receive payment for all improvements made upon land. In certain cases there may be an equitable claim; but that in all cases a party is bound by natural justice to pay for improvements made against his will, or without his consent, is a proposition which we are not prepared to admit. ”

“ As the purchasers under the state were tenants for life, and the children of Morris and his wife, or their assignees, are seised in remainder of the fee, it results from that relation that the possession of the purchasers could not be adverse to the title of the remaindermen. The persons entitled to the remainder have five years from the death of Mrs Morris to commence their suits for the land; and the sale by the remaindermen to Mr Astor, during the existence of the life estate, in accordance with the rules of the common law, and in violation of no statute. ”

“ But the other judges are of opinion, that this part of the charge is correct, because Morris and wife had, under the settlement deed, a power to convey in fee lands to a much greater amount; that it was not necessary to recite in their deeds of sale their power to sell; and that the covenant of seisin, being a usual muniment of title, and not changing in the slightest degree the perfection of the title actually conveyed; did not, in point of law, whether there was a seisin or not, create any repugnancy between those deeds and the settlement deed. ”

“ Whichever way many of the points may be decided, our opinion proceeds upon a ground which supersedes them, and destroys all their influence upon the cause. We are of opinion, not only that the recital of the lease in the deed of marriage settlement was evidence between these parties of the original existence of the lease, but that it was conclusive evidence between these parties of this original existence ”

“ Springing and shifting uses, and executory devises are only admitted in cases of necessity, and it is well settled that where a limitation can take effect as a remainder with a sufficient freehold estate to support it, it shall not be construed as a springing or shifting use, or as an executory devise. ”

“ You have a right to say so, if there is evidence to support it; but if there is nothing to induce such a belief, then you are to say that it was duly delivered.
'It has been said that this was a dormant deed, never intended by the parties to operate; that it had slept until after the attainder and until the year 1787. There is weight in this, or rather there would be weight in it, if the parties in interest had slept on their rights. But who has slept? Morris and his wife, Beverly Robinson and Joanna Philipse, the trustees: they are the persons that have slept, and not the children. ”

“ The substance of the provisions of the acts of the legislature of New York is: that the purchaser of any forfeited estate, in case of eviction, should be paid the value, at the time of the eviction, of the improvements he had made on the land ”

“ It is said to be no impediment to the prosecution of their just rights, because it is just that they should pay for the improvements. This resolves itself into a question of law; which is, whether the remainderman in fee cannot justly take possession of the estate when his title to the possession commences, without paying for improvements put on the land by the holder of the intermediate estate. ”

“ There may be no witness to prove the fact. And the force and importance of a recital may be greater or smaller, according to the facts and circumstances of each particular case. Here the lease is lost, and it cannot therefore be shown who were the witnesses to it, nor with certainty what it contained. The witnesses to the release are dead, and the plaintiff could not therefore be called upon to produce them. In the proof of ancient transactions, the rules of evidence must be relaxed in some measure, to meet the necessity of cases. Where witnesses cannot be had we have to resort to other proof. ”

“ The conveyance taking effect by the statute of uses, upon a deed operating by way of transmutation of possession; no difficulty arises in giving full effect, by way of springing or shifting or executory uses, to all the limitations, in whatever manner they may be construed. The counsel for the original defendant contend, that the parents take a life estate, and that there is a remainder upon a contingency, with a double aspect. That the remainder to the children is upon the contingency of their surviving their parents ”

“ There are remainders in fee protected by the treaty of 1783; and the state of New York has seized and sold the life estate, declaring by acts subsequent to the treaty, that with respect to all improvements made by the tenant for life, the remainderman shall not have his estate until he shall have paid for those improvements. ”

“ That such a recital is not only evidence, but is an estoppel which binds the releasor and all who take the estate in his right by subsequent title derived from him; and it is only against strangers in estate and blood, having no privity with the one who has made the recital, that the existence and loss of the recited instrument is required to be proved aliunde.
The distinction that the recital binds those only who claim the estate through the deed, cannot be sound ”

“ The alienee may be protected by covenants. But suppose a creditor who has the land in execution; he takes it bound by every thing his debtor has done, not by every thing his debtor has said. It operates by way of admission. Under what circumstances is one man bound by the admissions of another. Suppose an admission under hand and seal, that the property is held fraudulently. This will not bind the alienee without notice.
In the case in 1 Salk. 285, Ford vs. Grey, what is meant by 'those claiming under him?' Is it the persons who claim under the same conveyance, or merely by subsequent deed? ”

“ And as soon as a remainderman is presented who meets the description of the limitation, and between whom and the possession nothing stands but the particular estate, the remainder vests in interest, though it may chance never to come into possession; for many are the vested remainders which have passed away, without having vested in possession.
On the 1st of October 1779, there was a life estate in the parents; there were children of the marriage, remaindermen, all in esse, and nothing interposed between them and the possession except the particular estate ”

“ Parents may, from a sincere desire to promote the interest of their children, and to increase the value of their estates, make leases for the clearing and cultivation of their estates, which they know to be unauthorised by law, but which, at the same time, they feel an entire confidence will be confirmed by their children. ”