p. 92of Sempronius, in the county of Cayuga, tried at the c.ir*' cuit in that county, January 23d, 1827, before Throop, C T 1 Judge.
On the trial, the plaintiff proved a patent from the state to one Schreeder for the whole lot.
He then produced a witness who proved a deed in fee of the same lot from the patentee to C. Loop, the ancestor of the lessors of the. plaintiff, which was lost; By his (the ancestor’s) death, the title would have descended upon the lessors; but the same witness who proved the deed to their ancestor also proved by parol that C. Loop afterwards conveyed the lot to one Jackson, upon an agreement that Jackson should get possession of the land at his own expense, and convey one half to the grantor, C. Loop. A bond from Jackson to C. Loop was also produced and given in evidence reciting the conveyance to Jackson, and that Jackson was to trace the title with all convenient speed, and if in him, by virtue of the deed from *C. Loop, then to re-convey one half. This bond was dated December 30th, 1797. It did not appear whether Jackson ever took possession or not, nor whether he ever did any thing to recover the land. He died many years ago in the state prison.
The plaintiff resting his cause on the above proof, the judge nonsuited him, on the ground that he had shown a title out of the lessors of the plaintiff, in Jackson, who was not a lessor.
J. A. Collier,
for the plaintiff, now moved to set aside the nonsuit and for a new trial, on the ground that the deed to Jackson.was not produced at the trial, nor its absence ac- . counted for. Neither the parol evidence nor the recital in the bond were therefore admissible or competent to prove it: (6 Mod. 45. 2 Lev. 108. Mod. Cas. 44, 5. 2 Serg. & Rawle, 455 .)
But if otherwise, he said, a re-conveyance should be presumed after such a lapse of time, and nothing done under the deed. ( 3 John. 387 . Bull. N. P. 110. 2 John. 226 4 Cowen, 587, 598. 7 Cowen, 187. 1 R. L. 72, 74.
p. 933 John. 216 . 16 id. 199. 4 Binn. 240 . 5 Cowen, 99. 4 John. 211 . 6 id. 265, 6 . 2 Cowen, 238.)D. Kellogg, contra.
The recital in the bond was full and complete evidence of the deed. (Penrose v. Griffith, 4 Bin. 231 .) This was the plaintiff’s own evidence. The intendment is, that the defendant held under the true owner till the contrary appear. ( 9 John. 167 .)I am inclined to think the judge was right. The testimony of the plaintiff’s witness showed the existence of the deed ; and the bond, also being ' the plaintiff’s evidence, showed the title out of the lessors of the plaintiff.
It is said Jackson was but the trustee of Loop, and had not such a title as a stranger can set up. Whether the defendant was an intruder, or claiming title, does not appear. No evidence was produced by him. He had no opportunity of ^showing how he possessed, or under what claim, as the judge nonsuited the plaintiff.
But the question is not whether this is such an outstanding title as the defendant could set up for himself, to show his own right; but whether the plaintiff himself had not shown the fee out of his lessors. If Jackson was a trustee, still, at law, the legal estate must prevail, which is in the trustee.
The strongest ground for the plaintiff is, that Jackson being long since dead, and 30 years having elapsed since the deed to him, an extinguishment of the trust by a re-conveyance should be presumed. But can this be ? If such re-conveyance had been made, probably the bond produced would have been cancelled. Its existence rebuts the idea of a re-conveyance, if it could otherwise prevail.
1 think the nonsuit was right, and should not be set aside.
Motion denied.