Shaver v. Radley

dren of Annatie Radley, would have shown a title to a moiety of the premises.

By the will of Makanse, (and of the authenticity of which there can remain, no doubt,) the one half of the farm was devised to his son Peter, and the other half to his daughter Annatie. There is no evidence that Annatie ever parted with her right, but there is ground to presume that Peter conveyed his interest to Johannis Radley, the husband of Annatie, and father of the defendants. There is a certificate signed by Mary and Elizabeth, the two other daughters of the testator, and dated in 1759, by which they and their husbands acknowledge to have received of Johannis Radley their full demand upon the farm, and they assign over all their right and title to him. By the will, those two daughters were entitled to a legacy of ten pounds each; the one legacy payable by Peter, and the other by Annatie. These legacies, which were paid by Radley, in 1759, were paid on behalf of Peter, and of his wife Annatie, and how came he to pay the legacy chargeable upon Peter ? We find, also, by a receipt dated in 1756, that Johannis Radley paid a small debt of A. Lansing, against Peter Makanse; and by another receipt, of the date of February, 1763, he paid to Dow Fonda, a debt due from Andrew Makanse; and by a receipt, of May, 1763, he paid another such debt to Mary Rett; and by a receipt of 1768, he paid another such debt to A. Yates ; and by another receipt, of 1777, he paid another such debt to Jacob Roseboom. A number of aged witnesses testify to traditional information and belief, that Johannis Radley acquired the farm by purchase, and assumed the debts of the testator; aid! though they do not speak with precision, their testimony shows that there was an ancient and generally received impression in the neighbourhood, to that effect. It appears, also, that Johannis Radley continued in possession, from the time he first entered, not long after the death of Makanse, until his death, in 1785, a

his continuance in possession until his death, would be perfectly consistent with her right, and that of her children, inasmuch, as he was entitled to such possession, as tenant by the curtesy. period of upwards of thirty years. I think we might safely presume, under these facts and circumstances, that a conveyance of Peter’s moiety of the farm, was made to him, and that the deed has been lost. As to the moiety of Annatie,

Assuming, then, the 'Makanse title to have been good, I should be induced to think that the plaintiffs, who are the children or descendants of Annatie, have shown a title to a moiety of the premises, and that the plaintiffs, who are the children or descendants of Maria, have failed in establishing any title, legal or equitable.

2. But it appears, from the case, that the Makanse title was without foundation ; that the lands in question belonged to the proprietor of the manor of Rensselaer, and that the defendant, William Radley, is lawfully possessed of a lease, in fee, under the true owner; and the only point in the case is, whether the facts will raise a trust, by construction, as to a moiety of the premises, in favour of the representatives of Annatie Radley.

. The charge in the bill, that the parents of the defendant, William Radley, suppressed the will and title deeds of Andrew Makanse, and obtained a title under Van Rensselaer> by false suggestions, is not supported by proof. It appears that disputes and controversies existed between the proprietors under the Van Baal and Van Rensselaer patents, and ejectment suits had been brought on each side. In July, 1774, the proprietors submitted the dispute to arbitration, and by the award of the referees, in May, 1775, the lands now in question were declared to belong to the manor of Rensselaer. It is suggested, that, by the terms .of the submission to arbitration, the title of the grantees under the Wan Baal patent was to be confirmed, under the like rents and Conditions, in case those grantees should fall within the

manor of Rensselaer. But neither the defendants, nor their parents, (Johannis Radley, and his second wife, Catharine,) were parties to that submission, and there is no evidence that the knowledge of such a stipulation ever came to them, or either of them, and the fact of such knowledge is denied in the answer. When Johannis Radley obtained a lease, in 1773, from Mrs. Van Rensselaer, for thirteen years, he acquired a title by purchase from the true owner, upon the usual covenants and conditions contained in the printed leases, and upon a yearly rent of fifteen skipples of wheat. This appears to have been a fair purchase, and without any ground upon which to raise a trust, in favour of the plaintiffs, under Makanse. The title under Makanse was denied, and resisted, and proved, afterwards, to have been null and void from the beginning. It was a safe and necessary7 purchase under the rightful owner; and the suggestion of a fraudulent attornment is not supported. If there was any fraud, it was committed against the proprietors of the Van Baal patent, who were seised of the rents under the original lease to Makanse; and they would be concluded from the suggestion, since they submitted their title to a tribunal which decided that they had none. The taking a lease under the true owner, was a tabula in naufragio. His tenancy by the curtesy was unsound and worthless; and the mere fact of his being an occupant under such a pretension, would not render him a trustee under the new lease. The claimants, under Makanse, had no title, in law or equity, to a confirmation of their lease by the true owner, unless under some covenant to that effect, and to that the Radleys were strangers. It does not appear that the lease was given to Johannis Radley, upon any other ground than that of his being a person in actual possession, which, of itself, gave him no legal or equitable right to the lease. He died in possession, before the expiration of the lease; and sometime after his death, his widow, Catharine Radley, procured from Van Rensselaer, in 1791, a lease in fee, subject to a variety of

covenants and conditions; and among others, to the payment of an annual rent of thirty skipples of wheat. This lease, in fee, to Catharine Radley, was not in pursuance of any stipulation in the submission to arbitration. There is a great difference, both as to the quantity of land, and as to the rents and covenants, between this lease and the one in 1732, to Makanse, the counterpart of which had been assigned to Van Rensselaer, in 1789. There is no analogy between them. This is to be considered, not as the confirmation of the same grant, but as a new and original purchase made by the grantee, in good faith, and without knowledge of any legal obligation in Van Rensselaer to give it. She. afterwards, conveyed the premises to Rybert Radley, and he to the defendant, William Radley, who holds as a bona fide purchaser, without notice of any trust arising from the terms of submission to arbitration, and without being chargeable with any fraud that might have been imputable to his father.

The interval between the time when Johannis Radley took a title under Van Rensselaer, and the filing of the bill, was twenty-six' years; and during all that time, the land was held under Van Rensselaer, without notice of any equitable claim, which the grantees, under the Van Baal patent, might have had, arising from the submission to arbitration. I do not see that there is any principle of the Court to warrant the deduction of a constructive trust, to be enforced against the defendant. If a trustee by implication, is to be affected by an equity, that equity must be pursued within a reasonable tipie. (Townshend v. Townshend, 1 Cox’s Cases, 28. and see, also, the cases referred to in 3, Johns. Ch. Cas. 216.) Here the defendant stands in the character of a bona fide purchaser, without notice, and he sets up such a purchase, and the occupation of the land by hiriiself, and those under whom he holds, for a period of twenty-six years before the filing of the bilk I am of opinion, that he ought

not now to be disturbed, under the peculiar and extraordinary circumstances of the claim.

The bill must, accordingly, be dismissed; but considering the protracted nature of this litigation, arising from the acts and laches of the defendants, and the circumstances of hardship and misfortune which characterise the lost claims and equity of the children of Annatie Radley, I shall follow the precedent of the case just cited, and dismiss the bill without costs.

The two defendants who have, in their answer to the bill of revivor and supplement, disclaimed all interest in the premises, might have been entitled to costs, if that last bill had been the commencement of the suit. But when it is recollected, that in their answer to the original bill, there was no such disclaimer, and that a decree, after a hearing on the merits, had been pronounced against them, and that on their petition for a rehearing, they were indulged with the privilege of amending their answer, and might justly be chargeable with costs of the preceding part of the suit; they can have no just right to the costs of the last stage of the suit, if they are permitted to be exempted from the payment of the costs of "the jformer stage of it. The bill, therefore, as to all the defendants, is dismissed without costs.

Decree accordingly.