Carver v. Jackson. 4 P. recorded, from which an inference can be drawn against the deed.” Pointing the attention of the jury to the fact of delivery, and not to any controlling distinction between the interest of the children and * their parents, the bearing of the remarks of the judge with [* 97 ] respect to the various deeds executed by Morris and his wife, and which are alleged to have been inconsistent with the marriage settlement, could not have misled the jury. It is true, they were told that in weighing the force and effect of those acts, they must bear in mind the time when the interest vested in the children under the deed. This remark must have been understood by the jury as subject to their finding with respect to the delivery of the deed; and not as expressing an opinion that the interest of the children vested at the date of the deed. For, if that had been understood as the opinion of the judge, the evidence, as before observed, would have been inadmissible, and the jury would have been told that it could have no bearing upon the case; instead of which it had been before explained to them, that the object of this evidence was to disprove the delivery of the marriage settlement deed, and not to devest any interest that had become vested in the children. And in the conclusion of this part of the charge, the judge tells the jury, "these are all the circumstances relied upon as being inconsistent with the settlement deed, and these are questions for you. I do not wish to interfere with your duties. It is for you to say whether the deed was duly executed and delivered." The jury had been told, in a previous part of the charge, that delivery of the deed was essential in order to pass the title, and that this was a fact for them to decide; and it was in conclusion left to them, in as broad a manner as could be done. The whole scope of the charge on this point left the evidence open for the full consideration of the jury, and the remarks of the judge are no more than a mere comment on the weight of evidence, and, as such, were addressed to the judgment of the jury, and not binding upon them. If a decided opinion had been expressed by the judge upon the weight of the evidence, it is not pretended that it would be matter of error, to be corrected here. But the charge does not even go thus far, and it is believed by a majority of the court, that it is not justly exposed to the criticisms which have been applied to it. In respect to that part of the charge which comments [98] upon the various deeds made by the parents, which were * relied upon as inconsistent with the settlement deed; no objection has occurred to any member of the court, except as to the comments on the deeds to Hill and Merritt, and the life leases to other persons. In respect to the deeds to Hill and Merritt, one judge Carver v. Jackson. 4 P. is of opinion that the statement, "that these deeds are not inconsistent with the settlement deed," is incorrect in point of law, because those deeds contained a covenant of seisin; and under the settlement deed, although Morris and wife had a right to convey the land, they were not in the actual seisin of it, and therefore such a covenant was inconsistent with the settlement deed. But the other judges are of opinion, that this part of the charge is correct, because Morris and wife had, under the settlement deed, a power to convey in fee lands to a much greater amount; that it was not necessary to recite in their deeds of sale their power to sell; and that the covenant of seisin, being a usual muniment of title, and not changing in the slightest degree the perfection of the title actually conveyed, did not, in point of law, whether there was a seisin or not, create any repugnancy between those deeds and the settlement deed. If the parties had in those deeds recited the settlement deed and the power to convey, and had then conveyed with the same covenants, the deeds could not have been deemed, in point of law, inconsistent with the power under the settlement deed; but would have been deemed a good execution of the power, and the covenants a mere additional security for the title. The same judge is also of opinion, that the life leases which were given in evidence, not having been made in pursuance of the power in the marriage settlement deed, are by their terms and effect so inconsistent with it, as to authorize the jury to find against its delivery on this ground alone; and that the circuit court erred in charging the jury that the effect and operation of these leases was not a subject for their inquiry, and that their bearing on the cause depended on the intention of Morris. To the other judges, however, the charge in this particular is deemed unexceptionable. The judge decided that these life leases were unauthorized by the power; and the* question was, [*99 ] what influence they ought to have upon the point of nondelivery of the settlement deed; they not deriving any validity or force under it. Were they acts of ownership over the property which could not be explained consistently with the existence of the settlement deed; or were they acts which, though unauthorized, might fairly be presumed to be done without any intention to disclaim the legal title under that deed? In estimating this presumption, it is to be considered that these were the acts of parents, and not of strangers. That it does not necessarily follow, because parents do unauthorized acts in relation to the estates of their children, they intend those acts as hostile or adverse to the rights of their children. Parents may, from a sincere desire to promote the interest of their children, and to increase the value of their estates, make leases for the clearing and Carver v. Jackson. 4 P. cultivation of their estates, which they know to be unauthorized by law, but which, at the same time, they feel an entire confidence will be confirmed by their children. The very relation in which parents stand to their children, excuses, if it does not justify such acts. It will be rare, indeed, if parents may not confidently trust that their acts, done bona fide for the benefit of their children, will, from affection, from interest, from filial reverence, or from a respect to public opinion, be confirmed by them. The acts of parents, therefore, exceeding their legal authority, admit of a very different interpretation from those of mere strangers. The question in all such cases is, what were the intentions and objects of the parents? Did they act upon rights which they deemed exclusively vested in themselves? or did they act with a reference to the known interests vested in their children? It appears to the majority of the judges, that the circumstance of the life leases was properly put to the jury as a question of intention; and that the jury were left at full liberty to deduce the proper conclusion from it. The next point is, as to the improvements claimed by the tenant in ejectment, under the act of New York of the 1st of May, 1786. That act declares, "that in all cases of purchases made of any for feited estates in pursuance of any of the laws directing the [* 100 ] sale of forfeited estates, in which any *purchaser of such estates shall be evicted by due course of law, in the manner mentioned, &c., &c., such purchaser shall have like remedy for obtaining a compensation for the value of the improvements by him or her made on such estate, so by him or her purchased, and from which he or she shall be so evicted, as is directed in and by the first clause in the " act of the 12th of May, 1784. The latter act declares that the person or persons having obtained judgment, shall not have any writ of possession, nor obtain possession of such lands, &c., until he, she, or they shall have paid to the person or persons possessing title thereto, derived from or under the people of the State, the value of all improvements made thereon after the passing of the act. Neither the act of 1784 nor of 1786, purports to give a universal remedy for improvements in cases of eviction by title paramount; but is confined to cases of confiscated estates, where the title comes by sale from the State. However operative it may be as to citizens of the State, (on which it is unnecessary to give any opinion,) the question before us is, whether such improvements can be claimed in this case consistently with the treaty of peace of 1783. By the fifth article of that treaty,' it is agreed, "that all persons who have any interest in confiscated lands, either by debts, marriage 18 Stats. at Large, 82. Carver v. Jackson. 4 P. settlements, or otherwise, shall meet with no lawful impediment in the prosecution of their just rights." By the sixth article,1 it is agreed that "there shall be no future confiscations made, nor any prosecutions commenced against any person or persons for or by reason of the part which he or they may have taken in the war; and that no person shall on that account suffer any future loss or damage, either in his person, liberty, or property." We think that the true effect of these provisions is to guarantee to the party all the rights and interests which he then had in confiscated and other lands, in the full force and vigor which they then possessed. He was to meet with no impediment to the assertion of his just rights; and no future confiscations were to be made of his interest in any land. His just rights were at that time to have the estate, whenever it should fall into possession, free of all incumbrances or *liens for im- [ *101 ] provements created by the tenants for life, or by purchas ers under the State. To deny him possession, or a writ of possession, until he should pay for all such improvements, was an impediment to his just rights, and a confiscation, pro tanto, of his estate in the lands. The argument at the bar supposes that there is a natural equity to receive payment for all improvements made upon land. In certain cases there may be an equitable claim; but that, in all cases, a party is bound by natural justice to pay for improvements made against his will, or without his consent, is a proposition which we are not prepared to admit. We adhere to the doctrine laid down on this subject in Green v. Biddle, 8 W. 1. We are of opinion that the claim for improvements in this case, is inconsistent with the treaty of peace, and ought to be rejected. A number of objections, of a minor nature, are spread upon the record; such as exceptions to the admission of evidence to prove the common practice to convey lands by way of lease and release, and the admission of the journals of the legislature; to the admission of the act of compromise between the State and John Jacob Astor; to the sufficiency of the title of Astor, under the deed of the children of Morris and wife, to extinguish their title, &c., &c. To all these, we think it unnecessary to make any further answer, than that they have not escaped the attention of the court; and that the court perceive no valid objection to the ruling of the circuit court respecting them. Upon the whole, it is the opinion of this court that the judgment of the circuit court be and the same is hereby affirmed, with costs. 5 P. 190; 6 P. 598; 7 P. 348; 10 P. 257; 4 H. 123; 11 H. 297; 13 H. 115. 11 Stats. at Large, 83. Ex parte Bradstreet v. Thomas. 4 P. Ex parte MARTHA BRADSTREET; in the Matter of JAMES JACKSON, ex dem. MARTHA BRADSTREET v. DANIEL THOMAS. 4 P. 102. Upon the return of a rule to show cause why a mandamus should not issue, the party ruled has a right to show cause, whether the person who obtained the rule moves or not. A judge, upon whom such a rule is made, need not swear to the truth of the return of the reasons why he refused to sign a certain bill of exceptions. This court cannot order a judge to sign a bill of exceptions which he returns is not conformable to the truth. The law requires a bill of exceptions to be tendered at the trial. If it be drawn up afterwards, it should be done immediately, and during the term. To sign it after the expiration of the term is matter of consent or special order by the judge. Ar the last term, a rule had been laid on the Hon. Alfred Conklin, district judge of the northern district of New York, to show cause why a writ of mandamus should not issue, commanding him to sign a bill of exceptions, tendered to him in a case in which Mrs. Bradstreet was plaintiff. The rule was made returnable on the second Monday of January in this term, and the judge returned, in subtance, that he had offered to sign a correct bill of exceptions, but that the bill tendered to him, and which accompanied the rule, was not correct. This was explained and set forth, in detail, in the return. The return was not sworn to, and in the course of the proceeding the court declared the judge need not swear to the correctness of the return. After the return day, the judge's counsel moved to take up the rule. The relator's counsel objected, but the court held the judge had a right to have it taken up, and the rule and return were then heard. Storrs, for Judge Conklin. Key, contrà. * [ *106 ] MARSHALL, C. J., delivered the opinion of the court. The court is unanimously of opinion that the rule ought not to be granted. This is not a case in which the judge has refused to sign a bill of exceptions. The judge has signed such a bill as he thinks correct. If the court had granted a rule upon the district judge to sign a bill of exceptions, the judge could have returned that he had performed that duty. But the object of the rule is, to oblige the judge to sign a particular bill of exceptions, which had been offered to him. The court granted the rule to show cause; and the judge has shown cause, by saying he has done all that can be required from him; and that the bill offered to him is not such a bill as he can sign. |