Joseph Story

“ He claims in privity of estate by a title derived from the state of New York, whose sole title is founded upon that of Morris and his wife, and is subsequent to the release. The general rule of law is, that a recital of one deed in another, binds the parties, and those who claim under them by matters subsequent. Technically speaking, such a recital operates as an estoppel, which works on the interest of the land, and binds parties and privies; privies in blood, privies in estate and privies in law. Between such parties, the original lease need not at any time be produced. ”

“ The counsel for the defendant thereupon objected, and insisted that unless the deed called a marriage settlement deed was accompanied or preceded by a lease, the plaintiff could not recover in this action; that without a lease, the said deed could only operate as a deed of bargain and sale; and the statute of uses would only execute the first use to the bargainees, Johanna Philipse and Beverley Robinson, who took the legal estate in the land; and that the plaintiff could not recover without producing the lease or accounting for its non-production. ”

“ That a husband, even before marriage, may, in virtue of the marriage contract have inchoate rights in the estate of his wife, which, if the marriage is comsummated, will be protected by a court of equity against any antecedent contracts and conveyances secretly made by the wife in fraud of those marital rights, may be admitted ”

“ In cases where the interests of third persons may be affected by the acts of others-where, as in the present case, the rights of children are to be affected by the acts of parents, it is most material to ascertain the intent with which these acts were done. The intent may restrain, enlarge or explain the acts, so as to change their whole effect in point of evidence. The acts done with one intent may press strongly in point of presumption one way; with another intent, they may afford an equally cogent presumption the other way. ”

“ Under such circumstances it would have been unjustifiable on the part of the circuit court to have directed a nonsuit, the effect of which would have been to have excluded the jury from weighing the whole evidence, even if the case had been against a party who was a stranger to the title. ”

“ Surely, it will not be pretended that in order to a due execution of a power, it is necessary that it should be recited or referred to in the executing instrument of conveyance. The form of the instruction prayed for admits this. It is sufficient that the power exists, and is intended to be executed; and that intent is matter is pais, to be collected from all the circumstances of the case. The deeds of Hill, Merrit and Rhodes, contain nothing on their face (as the instruction prayed for concedes) which is inconsistent with or repugnant to the power in the settlement deed ”

“ In such cases the lease itself is the primary evidence; and its loss or non-production must be accounted for before the recital can be let in as secondary evidence of its execution or contents. But even here (as has been already intimated) , a long lapse of time furnishes a reasonable presumption of the loss. The argument of the bar is, that the recital may be conclusive of the existence of the lease in favour of the lessees, but not for or against any other persons claiming under them by distinct conveyances. ”

“ The same answer may be given to the refusal to give the instructions prayed for in all the various branches embraced in the fourth instruction of the defendant. They are as, follows: 1. 'If the jury, upon the evidence, believe that the deed was signed and sealed on the day of its date, and that William Livingston and Sarah Williams witnessed what took place at that time, and that the deed was not delivered before the execution of the Beekman deed, on the 18th of January 1758, then there is no evidence of a delivery.' 2. ”

“ It conveys no present interest in any personal property whatsoever; and affects to dispose only of the moneys and personal estate of which Morris shall die possessed, at whatever time they may have been acquired. It leaves him at full liberty to dispose of all the personalty that he shall at any time possess during his life time, toties quoties. ”

“ If the settlement deed stopped here, the case would be too plain to admit of doubt. Mary Philipse must, in law, be deemed the sole grantor of the lands, and the trustees and Morris must be deemed grantees, and to take in that characte exclusively. ”