Cuyler and others, Appellants, against Bradt and others, Respondents

(Court of Errors.) Cuyler and others, Appellants, against Bradt and others, Respondents. tiie recital of deeds among Where several patentees bear, £u equal proportions, the expense of obtaining a patent, and by themselves, it appears they intended to purchase in common, they will be taken as tenants in common and not as joint-tenants, though the patent be to them jointly. A conveyance with a recital of the intentof a purchase, is a conveyance with notice, and tiie grantee takes, subject to trusts implied as well as expressed. THE appellant’s bill in the court of Chancery set forth: 1st. A patent of the 2d June, 1688, to Van Rensselner, Van Cortlandt, Van Ness, and G. T. Van Vechten for the land called Hosick ; and, That no tenancy in common being expressed, the estate at law was of course-m joii7t-tenancy. " 2d. The will of G. T. Van Vechten of the 12th March, 1703-4, devising his farm, See. and all his residuary real estate, to his sons, Johannes and Vilchert, as tenants in common, in equal parts. 3d. The deaths of Van Rensselaer and G. T. Van Vechten, before severance of the joint-tenancy. 4th. A conveyance afterwards of the 18th October, 1706, from Van Ness and Van Cortlandt, the surviving patentees, to Johannes, as the son of G. T. Van Vechten, which, after reciting the patent, further recites that the lands were purchased from the Indians, and the patent obtained at the joint and equal expense of the patentees ; that it was their true intent, purpose, and meaning, that they should hold as tenants in common, without any advantage by reason of joint-tenancy or survivorship. That by the death of G. T. Van Vechten and Van Rensselaer, before partition or any act to destroy or cut off the right of survivorship by reason of the joint-tenancy, according to such true intent, purpose and meaning, Van Ness and Van Cortlandt, as survivors, were, by such means, in the eye of the law, become sole proprietors ; that they having regard to . the premises, and for a nominal consideration in money, conveyed to Johannes, an equal undivided fourth part of the lands. 5th. A conveyance from Johannes, of the 30th October, 1741, to Bradt, Brees and Van Beuren, his sons-in-law, reciting a partition of part of the lands among the proprietors, on the 20th November, 1732. when lots No. 2, 10, 11, 18, 20 and 21, fell to the share of Johannes, and lot No. 7 fell to the share of J. Van Rensselaer, and conveying to them, in consideration of thirty pounds, all such right, estate, title, interest and demand, whatsoever, as he had, or ought to have, in those lots, and the undivided land ; and-that this conveyance was cither voluntary, or if for valuable consideration, then with notice of the right or claim of Volchert. 6th. A deduction of the title of the appellants as the representatives of Volahert ; and, 7th. That the respondents hold as volunteers under Bradt and Brees. The scope of the bill then was, that the appellants might be let in for a moiety of the lands held by the respondents by title derived from Bradt and Brees, and to have an account of the rents and profits. To this bill the respondents demurred, and the demurrer being allowed, there was a decree of dismissal, but the decree being reversed on appeal, and the cause remanded to the court of Chancery, the respondents put in their answer, and proofs were taken. - The only material question as to facts contested between the parties was, whether there was sufficient evidence to find that the conveyance from Johannes to Bradt, Brees and Van Beuren, was either voluntary, or if it was for valuable consideration, then that it was with notice of the right of Volchert. The proofs as to these facts, were: 1st. A partition-deed of the farm of G. T. Van Vechten, between Johannes and Volchert, of the 9th of June, 1707, reciting the will of their father. 2d. A mortgage from Johannes to Coyeman, of the 2d September, 1723, reciting the deed from Volchert for the parcels, which, on the partition, fell to the share of Johannes, and which then constituted his farm. 3d. A conveyance from Van Beuren to J. Van Rensselaer of the 22d May, 1749, reciting a convey•anee from Johannes to Brees, Bradt and Van Beuren, of the 12til August, 1738, for all his farm. 4th. That on the 2d June, 1740, Brees, Bradt, and Van Beuren paid 81. Os. 2d. for Johannes to one Fresneau. 5th. That on the 22d July, 1744-5, Bradt, Brees and Van Beuren became bound with him to one Dow for 521. 8s. 0d. and that they also became bound with him to one Staats in about 300/. but the time is not mentioned. 6th. That Van Beuren, in 1748, sold his share of the lands under the conveyance from Johannes, of the 30th October, 1741, to one Collins, for 20/. 7th. The deposition of Bleeker, examined as a witness. He testified that he drew the deed from Johannes to Bradt, Brees and Van Beuren, of the 30th October, 1741; that previous to the execution of it, he showed it to Volchert, who directed his son to go to the witness and tell Johannes not to execute it; that the son told Johannes he was directed by his father to desire him not to execute it; that Johannes immediately, thereupon, left the room, and after an absence of about fifteen minutes, returned and said, what shall I sign ? I have already signed to Dow and Jansen; that Bradt, Brees and Van Beuren were present, and Brees told him that he did not sign away any more than he had, and then Johannes signed it. On the hearing, on the bill, answer and proofs, the chancellor again decreed the bill to be dismissed, and thus assigned his reasons. Mr. President. I dismissed the appellant’s bill, 1. Because the crown, having granted to the patentees jointly, no intention of the patentees to hold jn common can vary the nature of the estate, either at law or equity, from that created according to the intent of the crown, expressed in the grant. There is no intent that it should be otherwise expressed in the grant. The estate was in joint-tenancy* Their intention to hold as tenants in common, the estate which passed to them by the grant, cannot sever the estate that was in joint-tenancy. 2. Because the patentees paid equal proportions of the purchase-money to the Indians. This always makes a joint-tenancy in equity, where the estate is joint in law. The reason of this is founded on what is laid down in some of the books ; namely, that it seems to be the doctrine of the court of equity, that where two or more purchase land, and advance the money in equal proportions, and take a conveyance to them and their heirs, this is a joint-tenancy; that is, a purchase of them jointly, of the chance of survivorship, which may happen to one as well as the other; but where the proportions of the money are not equal, and this appears in the deed itself, this makes them in the nature of partners ; and, however the legal estate may survive, yet the survivor shall .be considered but as trustee for the others, in proportion to the sums advanced by each of them. It has already been intimated, that the patentees’ having contributed equally in the expense of acquiring the land, was sufficient for the implication of a compact or trust between them, that no advantage was to be taken by survivorship, and, consequently, that the fitness of the rule here cited, might be questioned. This is not only altogether a refinement, but it is also evidently erroneous; because, in order to equality’ íin chance of survivorship, there ought to be equality of age, as much as equality of contribution: to this may be added, that the correctness of a court of equity would require, that the presumption that persons ever act on a calculation of chance or luck, ought to be considered as rather odious, and, therefore, never to be assumed as a ground of decision. 3. Because, if the supposed trust is founded on any agreement between the original patentees, their heirs should have been parties to the suit, since they might, probably, have been called to show, that the conveyance to the eldest son, was conformable to the very terms of the agreement. 4. Because the legal estate being in the defendants, and no express trust appearing, the complain, ants should show such an implied trust is as clearly out of the statute of frauds. 5. Because the present defendants are bona fide purchasers, without notice of the claim of the complainants, Bleekefs testimony being inconclusive, as to the point of notice, particularly after so great £ lapse of time, and the death of all the parties. 6. Because, there being no evidence of fraud, or of the commencement of a suit by Volchert Van Vechten, as set forth in the bill, and on which alone the court of appeals overruled the demurrer, and the estate having been held, for upwards of eighty years, by the purchasers under Johannes, without any suit or legal demand upon them; the court will not, after such a lapse of time, suffer them to be dispossessed by an implied trust, particularly as the estate has, probably, with many others in this conn try, increased one hundred fold by the improvements thereon within that period. [MAJORITY — Per Curiam, delivered by Benson, J.] Per Curiam, delivered by Benson, J. As to the' question of fact above stated, it is not requisite t© ‘ say more, than that the evidence at least prepon-' derates in favour of the supposition, that the conveyance of the 30th October, 1741, although there might have been some pecuniary confederation for it, as from Brees, Bradt and Van Beuren, yet, that the greater inducement or consideration as from Johannes, xyas relationship. This rendered it more a gift than a sale. It appears, that Brees, Bradt and Van Beuren then knew of the will of G. T. Van Vechten, and of the conveyance from the surviving patentees to Johannes, so that the conveyance from Johannes to Bradt, Brees and Van Beuren, was not only voluntary, but they took xvith a notice of the right of Volchert, and either the one or the other is sufficient for the appellants. Although the evidence is mentioned as preponderating only, the inference is not, therefore, intended to be, that if it was necessary, it could not be shoxvn to be perfectly satisfactory.. As to the question of law, or right between the par-' ties, it is to be observed, that a use is a right in one person, to have the use or profits or beneficial interest of land, and another person to have the right; that is, tobe the legal, or formal possessor or tenant of it. These uses were borrowed from the civil laxv, and introduced at first by the clergy, to evade the statutes of mortmain by procuring a natural person to hold the land, but to the use of the corporate or politic persons, the monastery, or religious house. This contrivance was afterwards used as a means to enable persons to devise, and also to prevent forfeitures by cestui que use. The land itself could not be devised, but the use might; the land was forfeitable for crimes, but the use was not; the only remedy for cestui que use, the person having the right to the use, against his feoffee to use, the person holding the land, if he refused to let him have the use of the land, was in a court of equity. Afterwards, the statute of uses, by annexing the possession to the uses, gave the cestui que use a complete remedy at law. This produced a dis - tinction between executed and executory uses, the former being where the possession is by force of the statute, transferred to the cestui que use, so that the feoffee to the use is only, as it were, to forbear or be passive, and the use will execute itself in the cestui que use; the latter is where an act is necessary by the feoffee to the use, to execute the use, as to convey over the land, or to receive and pay over the profits, 8tc, and since the statute, executory uses have been more generally distinguished by the appellation of trusts, which hath produced different appellations for the parties; the feoffee to the use, is called the trustee ; the cestui que use is called the cestui que trust. The execution of trusts can be still compelled in equity only, and are there subject to the like rules, with uses at law ; they are assignable; they are transmissible by descent and devise, and, which is peculiarly to be attended to in the present case, the possession of the trustee is the possession of the cestui que trust, and the rights of the latter may be barred by the statute of limitations, in like manner as uses or titles at law. But trusts are implied or expressed; implied trusts are such as arise from the case, which is, therefore, the fact, and the trust is the right arising from that fact; express trusts not being to be deduced from the case itself, must be declared. No particular form, however, is requisite in declaring them, and they may be declared at any time.—Before the statute of frauds and perjuries, the evidence of the declaration might have been by parol $ it must now be by writing. Purchasers for a valuable consideration, from a trustee, do not purchase at their peril against the trust, and, therefore, they will not be adjudged to have purchased, subject to the trust, unless it is proved they had notice of it. To apply what is here premised, to the present case—It might be insisted, that G. T. Van Vr:chten having contributed an equal fourth part of the expense in acquiring the land, that fact, therefore,, was in itself sufficient to imply an existing trust in favour of him; that he was to have an equal fourth part of the land in severalty, and that a court of equity would, accordingly, in case of his death, have compelled the surviving patentee to have conveyed a fourth part to his representatives; by the conveyance» however, from the surviving patentee to Johannes, the necessity of recurring to mere implication, for the trust is saved, the recital in that conveyance being a sufficient declaration in evidence, that such trust was expressed between the patentees, and coeval with their intention, to acquire the land; it was their true intent, purpose, and meaning, that they should hold as tenants in common, without any advantage, by reason of joint-tenancy or survivorship. The trust, therefore, being an interest devisable, a moiety of the fourth of G. T. Van Vechten passed by his will to Volchert, and the conveyance from the surviving patentees, is to be deemed the act by them in the execution of the trusts; so that Johannes, as to a moiety of the lands thereby conveyed to him, took by implication or construction of law, in trust for Volchert, and this hath been transmitted to the appellants, his representatives. Johannes not having done any act in breach of the trust, or adverse to it, so as to be considered as equivalent to a disseisin at law, until the conveyance of the 30th October, 1741, the possession, therefore, of Johannes to that time, being to be deemed the possession of Volchert, which being within sixty years, when the appellants filed their bill; and that conveyance being voluntary, or they having notice at the time, of the right of Vol-chert, the appellants are, therefore, entitled to a decree for a moiety of the lands. Laches are, nevertheless, so to be imputed to them, that it would not be proper for a court of equity to aid them, to recover the rents or profits. It will suffice to say, as a general answer, to the reasons not specifically replied to, that it is obviously to be collected, from what has already been suggested, that with respect to the allegation in the bill, of a suit by Volchert against Johannes for the recovery of the land, it not being proved, no notice was taken of it on the hearing of this appeal, either by the court or the counsel. Decree.—On hearing counsel on both sides, on the appeal, in this cause, this court doth adjudge and decree, that the decree of the said court of chancery hi this cause be reversed; and instead thereof, this court doth further adjudge and decree, that the respondents' do, by sufficient conveyances, convey to the appellants severally in fee simple, áccording to their respective shares or interest therein, as they have in. their bill of complaint set forth, .their title to the same, under Volchert Van Vechten, one of the residuary devisees, named in the will of Garrit 71 - Van Vechten, also in the said bill set forth, an equal undivided moiety of such of the lands, conveyed by Johannes Van Vechten, the other residuary devisee,, named in the said will, to Bernardas Bradt, Hendrick Brees, and Barent Van B'euren, by conveyance, bearing date the 30th day of October, 174-1, in the said bill mentioned, and held by the said respondents, by title derived from the said Bernardos Bradt and Hendrick Brees, or either of them, and that the said bill, as far forth as the same prays that the respondents may account for the -rents or profits of the said lands, be dismissed. And, except as to the costs intended in the decree of this court on the former appeal between the said parties, that they respectively pay. their own costs on this appeal, and which have hitherto accrued in the said court of chancery, and that, as to all such other costs as shall hereafter accrue in the said court of chancery, the respondents pay to the appellants their costs in that behalf to be taxed. And it is ordered that the said cause be remanded to the said court of chancery, and that all necessary orders and directions be there given for' carrying this decree into effect. Decree of reversal. '