JOHN M'PHERSON BERRIEN, Esq., ATTORNEY-GENERAL. WILLIAM THOMAS CARROLL, Esq., CLERK. JAMES CARVER, Plaintiff in Error, v. JAMES JACKSON, on the demise of JOHN JACOB ASTOR, THEODOSIUS FOWLER, CADWALLADER D. COLDEN, CORNELIUS J. BOGET, HENRY GAGE MORRIS, MARIA MORRIS, THOMAS HINKS, AND JOHN HINKS, Defendants in Error. 4 P. 1. The practice of bringing the whole charge of the court below before this court reprobated. Under the law of New York, the oath of a subscribing witness before the proper magistrate, and the subsequent recording of the deed, afford primâ facie evidence of its execution and delivery. The recital of a lease in a deed of release estops all persons, claiming under the parties to the deed of release, from denying the existence of the lease, or that possession under it which is necessary to give the release its intended operation. Conveyance in a marriage settlement, to the use of R. and M., the husband and wife, and the survivor of them, during their natural lives, "then to the use and behoof of such child or children as shall or may be procreated between them, and to his, her, or their heirs and assigns forever; but, in case the said R. and M. shall have no child, and that such child VOL. IX. 1 Carver v. Jackson. 4 P. or children shall die during the lifetime of R. and M., and M. should survive R. without issue, then to the use of M. and her heirs," Held, 1. That each child, when born, took a vested remainder in fee, subject to open and let in after-born children. 2. That this vested estate in fee was defeasible upon the contingency that the wife should survive the husband without issue. 3. That there was no objection to the limitation of a fee upon a fee in this manner, by way of shifting use. 4. That the existence of this executory limitation over to the wife did not render the preceding estate a contingent remainder, but a defeasible, though vested fee, the contingency attaching not to the prior, but to the subsequent es tate. The question being whether the deed of marriage settlement had been delivered, acts of the parents, who had a life-estate by the deed, inconsistent with the existence and operation of the deed, were held admissible against those to whom the deed limited remainders; though, if the deed was duly delivered, no acts of the tenants for life could affect the other estates. But, in weighing the acts of parents respecting the estates of their children, the same inferences, as to strict legal authority, are not to be drawn as in case of strangers. A power to dispose of lands is not an estate therein, and did not pass under an act confiscating the estates of the donees of the power. The life-estates of the tenants in possession under a marriage settlement having been confiscated and sold, but the estates of the remainder-men, who were British subjects, not having been devested, the purchasers under the State are precluded, by the treaty of peace of 1783, (8 Stats. at Large, 80,) from making a claim for improvements under a state law. THE material facts and documents, and those parts of the charge of the circuit court which were drawn in question, are stated in the opinion of the court. Bronson and Webster, for the plaintiff. Ogden and Wirt, contrà. * [ * 80 ] STORY J., delivered the opinion of the court. This is a writ of error to the circuit court of the southern district of New York, in a case where the plaintiff in error was the original defendant. The action is ejectment, brought upon several demises, and, among others, upon the demise of John Jacob Astor. The cause was tried upon the general issue, and a verdict rendered for the original plaintiff, upon which judgment was entered in his favor; and the present writ of error is brought to revise that judgment. Both parties claim under Mary Philipse, who, it is admitted, was seised of the premises in fee in January, 1758. Some of the counts in the declaration are founded upon demises made by the children of Mary Philipse, by her marriage with Roger Morris, and one of whom is upon the demise of John Jacob Astor, who claims as a grantee of the children. Various exceptions were taken by the original defendant at the trial to the ruling of the court upon matters of evidence, as well as Carver v. Jackson. 4 P. upon certain other points of law growing out of the titles set up by the parties. The charge of the court, in summing up the case to the jury, is also spread, in extenso, upon the record; and a general exception was taken to each and every part of the same, on behalf of the original defendant. And upon all these exceptions the case is now before us. We take this occasion to express our decided disapprobation of the practice (which seems of late to have gained ground) of bringing the charge of the court below at length before this court, for review. It is an unauthorized practice, and extremely inconvenient both to the inferior and to the appellate court. With the charge of the court to the jury, upon mere matters of fact, and with its commentaries upon the weight of evidence, this court has nothing to do. Observations of that nature are understood to be addressed to the jury merely for their consideration, as the ultimate judges of matters of fact, and are entitled to no more weight or importance than the jury, in the exercise of their own *judgment, choose to [* 81 ] give them. They neither are, nor are they understood to be, binding upon them as the true and conclusive exposition of the evidence. See Evans v. Eaton, 7 W. 356, 426. If, indeed, in the summing up, the court should mistake the law, that would justly furnish a ground for an exception. But the exception should be strictly confined to that misstatement, and, by being made known at the moment, would often enable the court to correct an erroneous expression, or to explain or qualify it in such a manner as to make it wholly unexceptionable, or perfectly distinct. We trust, therefore, that this court will hereafter be spared the necessity of examining the general bearing of such charges. It will in the present case be our duty, hereafter, to consider whether the objections raised against the present charge can be supported in point of law. The original plaintiff claimed title at the trial under a marriage settlement, purporting to be made and executed on the 13th of January, 1758, by an indenture of release, between Mary Philipse, of the first part, Roger Morris of the second part, and Joanna Philipse and Beverly Robinson of the third part, whereby, in consideration of a marriage intended to be solemnized between Roger Morris and Mary Philipse, &c., &c., she, Mary Philipse, granted, released, &c., unto Joanna Philipse and Beverly Robinson, " in their actual possession now being, by virtue of a bargain and sale to them thereof made for one whole year, by indenture bearing date the day next before the date of these presents, and by force of the statute for transferring uses into possession, and to their heirs, all those several lots or parcels of land, &c., &c.," upon certain trusts and uses in the same Carver v. Jackson. 4 P. indenture mentioned. This indenture, signed and sealed by the parties, with the usual attestation of the subscribing witnesses, (William Livingston and Sarah Williams,) to the sealing and delivery thereof, with a certificate of the proof of the due execution thereof by William Livingston, (one of the subscribing witnesses,) before Judge Hobart, of the supreme court of New York, on the [* 82 ] 5th of April, 1787, and a certificate of the recording thereof in the secretary's office of the State of New York, was offered in evidence at the trial by the plaintiff, and was objected to by the defendant, upon the ground that the certificate of the execution was not legal and competent evidence, and did not entitle the plaintiff to read the deed in evidence without proof of its execution. The judge who presided at the trial overruled the objection, and admitted the deed in evidence. This constitutes the first exception of the defendant. A witness was then sworn, who testified that the signatures of William Livingston and Sarah Williams to the deed were in their proper handwriting, and that they were both dead. The deed was then read in evidence. The certificate of the probate of the deed before Judge Hobart is in the usual form practised in that State, excepting only that it states, with somewhat more particularity than is usual, that William Livingston, one of the subscribing witnesses, &c., being duly sworn, did testify and declare "that he was present at or about the day of the date of the said indenture, and did see the within-named Joanna Philipse, Beverly Robinson, Roger Morris, and Mary Philipse sign and seal the same indenture, and deliver it as their and each of their voluntary acts and deeds," &c. We are of opinion that, under these circumstances, and according to the laws of New York, there was sufficient primâ facie evidence of the due execution of the indenture, (by which we mean not merely the signing and sealing, but the delivery also,) to justify the court in admitting it to be read to the jury, and that, in the absence of all controlling evidence, the jury would have been bound to find that it was duly executed. We understand such to be the uniform construction of the laws of New York in all cases where the execution of any deed has been so proved, and has been subsequently recorded. The oath of a subscribing witness before the proper magistrate, and the subsequent registration, are deemed sufficient, primâ facie, to establish its delivery as a deed. The objection was not, indeed, seriously pressed at the argument. The next exceptions of the defendant grew out of the [*83]* non-production of the lease recited in the deed of marriage settlement, and of the insufficiency of the evidence to establish either its original existence or its subsequent loss. We do Carver v. Jackson. 4 P. not think it necessary to go into a particular examination of the various exceptions on this head, or of the actual posture under which they were presented to the court, or of the manner in which they were ruled by the court. Whichever way many of the points may be decided, our opinion proceeds upon a ground which supersedes them, and destroys all their influence upon the cause. We are of opinion, not only that the recital of the lease in the deed of marriage settlement was evidence between these parties of the original existence of the lease, but that it was conclusive evidence between these parties of that original existence, and superseded the necessity of introducing any other evidence to establish it. The reasons upon which this opinion is founded will now be briefly expounded. To what extent, and between what parties, the recital of a lease in a deed of release, (for we need not go into the consideration of recitals generally,) is evidence, is a matter not laid down with much accuracy or precision in some of the elementary treatises on the subject of evidence. It is laid down generally, that a recital of one deed in another binds the parties and those who claim under them. Technically speaking, it operates as an estoppel, and binds parties and privies; privies in blood, privies in estate, and privies in law. But it does not bind mere strangers, or those who claim by title paramount the deed. It does not bind persons claiming by an adverse title, or persons claiming from the parties by title anterior to the date of the reciting deed. Such is the general rule. But there are cases, in which such a recital may be used as evidence even against strangers. If, for instance, there be the recital of a lease in a deed of release, and in a suit against a stranger the title under the release comes in question, there the recital of the lease in such release is not per se evidence of the existence of the lease. But, if the existence and loss of the lease be established by other evidence, there the recital is admissible as secondary *proof in the absence of more perfect evidence, [* 84 ] to establish the contents of the lease; and if the transaction be an ancient one, and the possession has been long held under such release, and is not otherwise to be accounted for, there the recital will of itself under such circumstances materially fortify the presumption from lapse of time and length of possession of the original existence of the lease. Leases, like other deeds and grants, may be presumed from long possession, which cannot otherwise be explained; and under such circumstances, a recital of the fact of such a lease in an old deed is certainly far stronger presumptive proof in favor of such possession under title, than the naked presumption arising from a mere unexplained possession. |