Noah Haynes Swayne

“ The power to suffer a common recovery has been invariably held to be a privilege inseparably incident to an estate tail, and one which cannot be restrained by condition, limitation, custom, recognizance, or covenant. ”

“ In the consideration of a court of equity, the cestui que trust is actually seized of the freehold. He may alien it, and any legal conveyance by him will have the same operation in equity upon the trust, as it would have had at law upon the legal estate. ”

“ It provided, 'that the will of the donor, according to the form in his deed of gift manifestly expressed, should be observed, so that they to whom a tenement was so given upon condition, should not have the power of alienating the tenement so given, whereby it might not remain after their death to their issue, or to the heir of the donor, if the issue should fail.' Under this statute it was held that the donee had no longer a conditional fee governed by the rules of the common law, but that the estate was inalienable, and must descend 'per formam doni,' or pass in reversion. ”

“ The presumption of law is, that in private acts the legislature only bind the parties before them, and not strangers or third parties. The presumption must be made certainly in regard to this act, which on its face breathes no aggressive spirit towards other parties. ”

“ The New Jersey statute of 26th August, 1784, does not abolish entails or enable the tenant to do so. It only provides that estates tail shall only continue during life of the first taker who dies seized of the entail as held by the courts of New Jersey, and the next heir takes per formam doni, but takes in fee. ”

“ It remains to consider the effect of the statute of limitation relied upon by the defendant in error. The second section of the act of the 5th of June, 1787, declares that thirty years' actual possession, where such possession was obtained by a fair and bon a fide purchase of any person in possession and supposed to have a legal right and title, shall vest an absolute right and title in the possessor and occupier. The deed of Morris Croxall to Garrett D. Wall bears date on the 30th of September, 1825. Wall conveyed to Shererd, the defendant, on the 5th of January, 1827. ”

“ On the 17th of May, 1808, McCullogh sold and conveyed to one Milner, who on the next day, conveyed the premises to A. D. Woodruff, Peter Gordon, and Jonathan Rhea, their heirs and assigns, to hold them during the natural lives of Charles and Mary Croxall, in trust, for the sole and separate use of Mary during life, and also to preserve the same from waste, so that after her death the same might enure to the heirs of her body by the said Charles Croxall, to the uses declared by the deed tripartite of 15th November, 1793, for the same premises. ”

“ In cases of this class, as in all others, when the statute has begun, it continues to run until its effect is complete. It proceeds to throw its protection over the property, and does not stop by the way for any intermediate right which may have arisen during the period of its progress. It allows no immunity beyond the savings which it contains. ”

“ The plaintiff, Robert Morris Croxall, is the great-grandson of Robert Morris, and claims the benefit of the tripartite deed of settlement, made in 1793. Mr. Morris, known as the financier of our Revolution, settled the property in question by this trust upon his son-in-law, Croxall, for life, and after his death, if his wife survived, then upon his said wife, who was Mary Croxall, the daughter of Mr. ”