41 U.S. 455

SMITH HARPENDING and others, Appellants,
v.
The MINISTER, ELDERS AND DEACONS OF THE REFORMED
PROTESTANT DUTCH CHURCH OF THE CITY OF NEW YORK and
others, Appellees.

APPEAL from the Circuit Court for the Southern District of New York. On the 25th of March 1839, the appellants filed a bill in the circuit court of the United States for the southern district of New York (they being citizens of other states than the state of New York), stating that prior to September 1696, John H. Haberdinck, of the city of New York, with four others, was seised in fee of the 'Shoemaker's fields or lands,' a tract of about sixteen acres, in the city of New York; and that in the same year, partition of the same was made, and Haberdinck became seised in severalty of divers parcels of the land described in the bill. Haberdinck died seised of the land, in January 1722, leaving a widow, who died in 1723; and John Haberdinck, Junior, of New York, was his only heir, and inherited his lands. The bill stated, that the complainants were the heirs of John Haberdinck, Junior, their names having been varied to Haberding. It stated, that they are seised, with Peter Haberding, a citizen of New York, of these lands, as heirs as aforesaid; and that no sale or devise of the lands has been made by them, or by any of their ancestors.

The bill stated, that John H. Haberdinck made leases of part of the lands for ninety-nine or more years, and some of the leases so granted did not expire until after 1829. The Dutch Church had, for some time past, had possession of the lands allotted to John H. Haberdinck by the partition; and claimed that they took such possession in virtue of some will or devise of John H. Haberdinck to them. They also obtained possession of the undivided parcel, and alleged title to some shares of it, by deeds from the other tenants in common; and had demised parts of the same, &c.

The bill alleged that the church was a religious corporation in the city of New York, incorporated under the laws of New York. The complainants had applied to the church for a statement of the title under which they claimed the property, and for a list of papers, and the inspection of their rent-roll, and an account of the rents and profits. In March 1822, the bill alleged, that the defendants returned to the chancellor of New York an inventory, in which they set forth that these lands were held by them as 'sundry lots devised to the church by John Haberdinck, called the Shoemaker's land, as mentioned in a former inventory, situated in the second and third wards of the city of New York;' and the defendants alleged the said will was valid.

The parts of the will set out in the bill of the complainants relating to the property claimed by the complainants were as follows: 'Item. I, the said John Haberdinck, do hereby give, devise and bequeath unto the minister, elders and deacons of the Reformed Protestant Dutch Church of the city of New York, and their successors for ever, all my (the testator's) right, title and interest, and property, in and to an equal fifth part, share and proportion of all that tract or parcel of land, situate, lying and being upon Manhattan Island, within the city of New York, called or known by the name of Shoemaker's field or land, on the north side of Maiden Lane or path, &c.; the which tract or parcel of land contains, by estimation, sixteen acres.' The will then described the different lots, according to the partition, and proceeded, 'all of which several and respective lots, pieces and parcels of land, I, the said testator, do hereby give, devise and bequeath unto the said minister, elders and deacons of the Reformed Protestant Dutch Church of the city of New York, and to their lawful successors for ever, with all and singular the buildings, messuages, edifices, improvements, emoluments, profits, benefits, reversions, advantages, hereditaments and appurtenances thereunto belonging, or in any wise appertaining, or reputed or esteemed as part and belonging to the same; to have and to hold all the aforesaid several and respective lots, pieces and parcels and land, with the several and respective premises and appurtenances, unto the said minister, elders and deacons of the Reformed Protestant Dutch Church of the city of New York, and their lawful successors, to the sole and only proper use, benfiet and behoof of the said minister, elders and deacons of the Reformed Protestant Dutch Church of the city of New York, and their lawful successors for ever, to be received and employed by the said minister, elders and deacons of the Reformed Protestant Dutch Church of the city of New York, immediately after my decease and the decease of my wife Mayken Haberdinck, and only to the proper use, benefit and behoof, and for the payment and satisfaction of the yearly stipend, salary or maintenance of the respective minister or ministers, which from time to time, and at all times hereafter, shall be duly and legally called to the ministry of the said church, and to no other use or uses whatsoever. And I, the said testator, do hereby further order and direct, that the sole management, direction, administration and government of the same, after my decease and the decease of my wife, Mayken Haberdinck, shall only be and remain in the hands, care, management, direction and administration and government of the elders of the said church, for the time being, or whom they shall nominate, constitute and appoint to act in their stated or place, and without being subject or bound to render any account of the same, but only to the minister or ministers, elders and deacons of the said Reformed Protestant Dutch Church of the city of New York, for the time being. Provided, always, that it shall not be lawful, nor in the power of the said minister, elders and deacons of the Reformed Protestant Dutch Church of the city of New York, nor their successors, nor the said elders or managers for the time being, nor in the power of any other person or persons whatsoever, for ever hereafter, to make sale, dispose, or alienate any part of the said lands, and premises, nor any of the profits, benefits, revenues or advantages accruing or arising out of the same, to any use or uses whatsoever; but that the same shall be for ever and remain to the only proper use, benefit and behoof as is above recited, declared and expressed.'

The complainants charged, that the will and the devise to the church was, at the date of the will, at the testator's death, and is at this time, wholly and absolutely void, illegal and inoperative at law. 'The church could not and did not acquire any right or estate under the will; and the possession of the premises was in subordination to the title of the complainants and their ancestors. The church took possession of five of the lots that were on Broadway, although only a part of two were devised to them.'

The bill further stated, that the church was incorporated on the 11th of May 1696, then having a church in Garden street, and certain tracts of ground, and were authorized 'to have, take, acquire and purchase' lands, &c., and not exceeding the yearly value of two hundred pounds, New York currency, equal to $500. That the property held by them was considerable, and had ever since been actually, and for twenty years past has been worth, at least $10,000. The yearly value of the lands devised by Haberdinck had ever since greatly exceeded the amount which the church was, from time to time, by law authorize to hold; from 1780 to 1800, the yearly value thereof was $10,000; from 1800 to 1820, at least $20,000; and to this time, at least $30,000. In order to keep down the 'annual income,' the church had given leases for long terms at a low rent, and then sold such terms, for large sums, and sued the money to buy other lands for other purposes.

The church had always held those lots under claim of title subordinate to the title of the complainants, and their ancestor; it was always incapable, in law, of acquiring or holding a valid title thereto by adverse possession; and was, at the time of Haberdinck's death, incapable in law, of acquiring and holding the lands by devise. If it should appear, that the lands were actually devised to the church by the will, yet such devise would appear to have been made on the 'express condition' that the lands were to be held by the church for the payment and satisfying the yearly stipend, salary or maintenance of the respective minister or ministers which should be, from time to time, duly and lawfully called to the ministry of tha said church, and to no other use whatever; and on the express condition, that it should not be lawful for the ministers, elders and deacons, to sell or dispose of any part of the property, or to apply any of the profits, revenue, &c., to any use whatever, other than those mentioned. At the time of the making of his will by Haberdinck, the only church was in Garden street; they had since built two others, and abandoned that as a place of worship. The income of the church from these lands had annually, for fifty years, greatly exceeded the yearly salaries paid, or which could be paid, to their ministers, and they had used the large surplus annually for other purposes, &c. The bill prays for a discovery, whether the church held under the will of Haberdinck, and if so, a full account of the same, and of all matters relating to the property; and for an account, &c.

The defendants, after various exceptions to the bill of the complainants, and to the relief sought in the same, and the denial of many of the allegations in the bill, and disclaiming the ownership of certain lots described in the bill, and in the answer filed, said: These defendants do plead in bar, and by was of plea say, that for all the time commencing forty years prior to the filing of the bill of complaint, namely, commencing on the 25th day of March, in the year of our Lord 1799, until and at the time of the filing of this plea, these defendants were and have been, and are, by themselves and tenants holding under them, in the sole and exclusive possession of all and singular the lands in the bill of complaint mentioned (excepting the lands above described as hereinafter disclaimed), during all which time of possession, all and singular the said lands have been improve by buildings, and inclosed with a substantial inclosure, excepting that the land twenty-five feet in width from John street, to Fair street, now Fulton street, between the side of lots 84 and 86, and a continuation thereof, having been during all that time enjoyed as a public street for access to the lands upon the same, and as a public street then, ever since, and now used by all good citizens of this state as a public street and highway, without rents, issues or profits thence accruing, and excepting a piece of land twenty-five feet in width, extending from the rear of lot 62, in the said bill mentioned, seventy-five feet along the rear of lots 41, 42 and 44, and excepting the two pieces of land, the one extending along the south-westerly side of lot No. 68, and the rears of lots 77, 78, 79 and 80; the other extending along the north-easterly side of lot 66, and the rears of lots 32, 33, 34 and 35, from Nassau street, to the rear of the said lots; and during all that time, these defendants have, by themselves and their tenants holding under them, actually occupied and possessed all and singular the said lands, claiming and enjoying the same, during all the time aforesaid, as being seised thereof in their demesne as of fee, in severalty, and in their own sole and exclusive right, as the sole and exclusive owners thereof, in their own right, in fee-simple, and to their own sole and exclusive use, and not otherwise; and during all that time, these defendants have been in the sole and exclusive receipt and enjoyment of the rents, issues, profits, avails and proceeds thereof, to the sole and exclusive use of the said corporation, claiming the right to receive and enjoy the same to their own use, and not otherwise.

The following points, relating to the matters decided by the court, were submitted by the counsel for the appellants.

I. The plea is defective, in regard to the allegations in the bill, as to the defendants entering and holding under leases from Haberdinck.

II. The plea does not make out a complete and absolute title in the defendants to the premises in question; and it is, therefore, no defence, either to the discovery, or the relief sought by the bill.

1. The defendants were incapable of taking lands by devise; and they are chargeable in law with a knowledge of this incapacity.

2. The devise to the defendants, by the will of John, Haberdinck, was absolutely void; and the defendants knew of its nullity.

3. The entry of the defendants was made, and their possession commenced under the void devise to them in the will of John Haberdinck, and was continued and held under that devise, to the time of filing the bill in this cause.

4. The possession and claim of the defendants were not, in their inception, hostile to the title of the heir-at-law; but were consistent therewith, and in subordination thereto.

5. The plea does not show when, or by what means, the possession then commenced and held, was changed into an adverse holding. And although it sets up a claim of title in severalty, from 1799 down, it does not show on what title, or color of title, that claim was founded. On the contrary, by not negativing the charges in the bill in respect to their claiming under the will, it is admitted, that since 1799, as well as before, their claim has been founded on the void devise in the will of Haberdinck.

6. The defendants' possession and claim of title, from the time of their first entry to the filing of the bill, having been at all times exclusively under and by virtue of a void devise, known to them to be such, are unavailing for any purpose. They do not, therefore, show an adverse possession.

7. The views taken of the defendants' possession, are more especially applicable to this case, as otherwise the policy of the prohibition contained in the statute of wills will be defeated, and the defendants allowed to do indirectly what they are expressly prohibited by law from doing directly. The decree of the circuit court should be reversed, and the plea overruled.

The case was argued by Eaton and Coxe, for the appellants; and by D. Lord, Jr., and Wood, for the defendants.

Eaton explained in detail the various statements and facts presented on the record, and the grounds upon which the matter was to be considered by the court; contrasting the numerous circumstances set forth in the bill, answer and plea, in the review. The the complainants' ancestor, as tenant in common, was seised of a tract of land, called the Shoemakers' field, at present situated in the most populous part of the city of New York; of which partition having been made, he had seisin in severalty and continued in undisturbed possession until his death, in 1723. That he devised this portion of his estate in trust, &c., to this church, the defendant. That it was a religious corporation, That complainants are the heirs-at-law, and have never parted with any portion of this estate. That in pursuance of the trust created in favor of the church, the minister, elders, deacons, &c., entered into the possession, and have ever since retained that possession. None of these special averments contained in the bill were denied; and hence, by the acknowledged rules of law, they are to be taken as confessed. He argued, that by the rules of equity proceedings, every material allegation contained in a bill which failed to be controverted by the plea and answer, in support of it, was to be taken as true. Mitf. Plead. 299-300; Story's Eq. Plead. §§ 38, 694; 4 Paige 195.

By the laws which, from time to time, had been enacted, usually termed the statutes of mortmain, of wills, &c., and which being in force in England, were alike in force within the colonies, no devise of real property to a religious corporation could be available to pass an estate; such devise was void. Various stratagems, at different times, had been resorted to by the clergy, to defeat these enactments, by a resort to the creating of uses, trusts and long leases, which were as often met by their corresponding legislation on the part of the British parliament. Uses and trusts had been placed upon the same footing as devises, and made subject to the laws of mortmain by statute of 15 Ric. II., c. 15. Leases for a longer period than twenty years were forbidden also by the British parliament. Stat. 22 Hen. VIII., c. 10; 1 Ves., jr. 218; 6 Ves. 404; 9 Ibid. 535. The statutes referred to were in force in the colony of New York to the year 1788. 4 Paige 198. Being in force, as the authority shows, a colonial act of legislation was incapable to repeal, alter or change them. Not even the British parliament could change them, so as to affect a right which had become vested before. It is not a prerogative right of the king to make dispensation of an express statute. He cannot do it; the king cannot do any act forbidden by law. The charter of incorporation under which the defendants allege a right to take the estate in question, can be of no avail whatever; because it was not in the power of the sovereign to permit that to be done which the laws of the kingdom prohibited. As the laws prohibited a devise of real estate to religious houses, no sanction on the part of the king could legalize any such bequest, to the prejudice of the rights of third persons; such was not a regalia privilege.

Against the right of the complainants to recover, a plea in bar is interposed, setting forth that this church, for a period of forty years before the filing of the present bill, had enjoyed quiet and undisturbed possession; that it had received to its own used the rents and profits. An answer in support of the plea is also offered, with a disclaimer as to a part of the property claimed. A plea may be good in part and bad in part. That which is good is only to be regarded, the rest is to be set aside; but an established rule of equity practice is, that a plea, to be good, must be clear, definite, precise and full as to all the matter which is offered as a bar to the relief sought. 4 Paige 195. The plea under consideration was not of that description and character. The admissions made upon the record are, that the defendants' first entry was under, and in pursuance of, a devise of claimants' ancestor, which, at the time was, void, as being adverse to existing laws; and they fail to show, either by the plea or answer, that their possession ever assumed anything of adverse character; then it was nothing more than a permissive, silent, acquiesced in, possession, subordinate to, and not adverse to, the title of complainants.

He who enters upon lands, by permission of another, is estopped to urge an outstanding title in another person, for the reason that the possession of the tenant is the possession of the lessor; and that cannot be called in question, until some act of ouster or of open disclaimer be made. 4 Wheat. 213; 5 Ibid. 124; 7 Ibid. 59; 9 Ibid. 288. In these decisions, made by the supreme court, the principle is asserted and maintained, that to make the statute of limitations available, the possession must be adversary; not permissive, or subordinate to the title or complainants. The pleadings admit, that from 1723, the time of the first entry under this void devise, to the year 1799, a period of more than seventy years, the possession by the church was under, and in pursuance of, this very devise about which we are inquiring, and hence, was in subordination to it; and as such, not being adverse, the statute of limitations is wholly insufficient to cure the deficiencies of the title. The authorities referred to refuse such a privilege.

Under the devise made to the deacons and elders of this church, possession was taken. It was a void devise, being contrary to the statutes of mortmain. Their possession was that of the complainants; the church merely holding in trust, not in fee. From lapse of time, a perfect title may be created by presumption. The law will, after a possession of twenty years, presume the existence of a deed; but if the facts adduced are found to be insufficient to warrant a belief of title, then the presumption fails of its effect. A tenant who has lived on his farm for twenty years, may defend himself on the presumption of a deed; but if he produce an insufficient and void deed or title, then the force of the presumption is taken from him; and for this most obvious reason, that the weight and force of presumption ever fails, where facts interpose to put aside the presumption. The rule of law is, that the title relied on must be of such a description and character that, in view of legal consideration, it must appear to be prima facie a good title; and hence arises the difference between a void and voidable title. In the one, not the other, the statute of limitations may be relied on. Authorities are wanting to show that upon an admitted void title, or upon a trust, any benefit can be derived from a resort to lapse of time. Ten Eyck v. Frost, 5 Cow. 346; 6 Wheat. 497; Pet. C. C. 361.

No authority could be found to give sanction to so pretended a defence as the present. The title relied upon was void at its incipiency; and no circumstance has since arisen to change its original defective character. Even the stale idea of innocent purchaser did not come to its aid. An old man, led away by superstitious apprehensions, gave his all away from his relations, to propitiate his hopes through the church. The wardens and elders, well knowing that his indulged feelings were at war with what the laws of the country authorized, encouraged him to the act, and received this bequest. They entered into the possession under that devise, and in that way still hold it. Nothing, then, of innocent purchaser, could interpose in their favor; the wrong originally practised is the wrong which still remains, and for which the successors of this church should be answerable, precisely as if they were now brought back to the year 1723, when this will was introduced for probate and registration. Then it was a void devise; and remaining so to this time, under unchanged circumstances, it is void still, as regards the heirs-at-law. With this religious corporation the wrong commenced, and with it the wrong has continued. No change of the original parties having taken place, after the lapse of more than a century, the matter ought to be weighed as though it were to be considered apart from the long intervening time. The statute of limitations, under such circumstances, should not afford protection. The possession of this church was merely a trust for the benefit of the cestuis que trust—the heirs-at-law; and by legal interpretation, should in no otherwise be understood.

Judicially, it has been pronounced, that the statute of limitations is a plea that ought favorably to be received. It would not be proper to controvert the correctness of that opinion; but the present case does not fall under the reason of that decision—cessante ratione cessat et ipsa lex. With innocent buyers without notice, the rule might apply; but here the original wrongdoers and violators of the law were still the holders of the property in controversy; the use and benefit of which they have enjoyed for a century, without having any legal title whatever. It was not for them to talk of hardships, after that they had held, for so long a period, possession of a large estate, for which not a cent of consideration was ever paid. It was a wrong originally practised, and that wrong was insisted to be carried out, upon no better pretext than a reliance on the statute of limitations; which was wholly inapplicable, under all the circumstances that belonged to the case under consideration. Statutes of limitation were intended for the guiltless, the weak and the helpless, for imperfect colorable titles, and not for the protection of a corporation; which, as this record shows, has thrown itself into open rebellion against all the mortmain laws which were then in force in the country. The church can sustain no injury, having never paid anything for this vast property, and hence cannot justly complain. It was received into their possession, under a devise which the laws, as the defendants well knew, did not authorize; and hence is void; and being thus void—a mere trust—the statute of limitations is incapable to perfect it into a title. The elders of the church entered into the possession of this estate in their own wrong, which the law holds shall never constitute a right; and in violation of the existing statutes of the country; and when, at last, the heir comes to demand his right, he is told, as the plea sets forth, we have had the property of your ancestor so long that we cannot surrender it. The policy of the English statutes of mortmain, of uses and trusts, was to prevent religious corporations from holding real estate. To argue, that the statute of limitations may give title to that which positively the law forbade to be holden, is to effect an object indirectly which could not be done directly; it would be a solecism in terms. The devise being repugnant to law, was a nullity—was void. Theirs is to be considered exclusively as the possession of the heirs.

The statute of New York, now in force in that state, after a lapse of twenty-five years, gives title to a mere possessio pedis right; it was passed in 1830. This statute could only have a prospective bearing, it could not act retrospectively. It changed the law as it had before been, and consequently, should have no binding effect, until 1855, when the full period of twenty-five years would be completed. Adverse possession was a term well defined and understood, in England; it was a possession such as was known, open and avowed, having in it nothing of concealment and secrecy; but showing that a title was relied on, strictly adverse to all and every opposing claim, because colorable legal. By the statute of New York for quieting titles, an adverse possession is required; and a mere possessio pedis, with improvements of the property, is defined to be adverse. Here was a new principle introduced, variant from the former acknowledged rule of law, and hence it must fail to be operative, until the prescribed period of twenty-five years shall be fully ended and completed, which will not be until the year 1855.

The plea of forty years adverse quiet possession is unavailing, for a further reason, which is presented on the record. It is shown, that so recently as 1822, the elders and deacons of this church, in rendering a list of their taxable property to the chancellor, as the laws of New York required, represented this property given in by them, as having been devised to their church by John Haberdinck, denominating it, 'The Shoemakers' Field.' This confession, voluntarily made, shows, that they were then holding by the same tenure under which they originally entered. Nothing of adverse right, or insubordinate to complainant's title, was then asserted; so far from it, they admit that their possession, at that time, was under and in pursuance of the devise made to them by our testator in 1723. This admission, presented on the record, excluded the idea set forth in the plea, that an adverse possession for forty years has been held; it was a subordinate, and not an adverse possession. Neither by the plea, nor answer, was it shown, that forty years before the filing of the bill, anything took place of the nature of ouster; or that any open, public and notorious disclaimer had been made, and a new and different title asserted. The defendants rest merely on the limitation—the mere naked possession, claiming, as they say, 'to have enjoyed the property, in their demesne as of fee, in severalty, holding adversely, &c.' Claiming in fee is an inconclusive, insufficient plea. It should be more definite. It might be a claim openly or secretly made, in a way that he in reversion might know nothing of the disclaimer and ouster; and if so made, which the plea fails to explain, clearly it is wanting in those essentials which the decision of this court make necessary. 5 Wheat. 124; 9 Ibid. 288.

A case in all respects similar to the present, is at hand. 5 Sim. 640. There, the defendants had been in possession for seventy years; and to a bill filed by the remainder-man to recover the estate, a plea was put in, stating, that adverse possession of the property had been held during the whole time; and that the receipts and profits had been received. The vice-chancellor overruled the plea, and on an appeal taken, his decision was affirmed by Chancellor BROUGHAM. Mylne & Keen 738. By the concurrent opinion of both, it was adjudged, that to make a plea of adverse possession good, it must show how, where, and after what manner, it became adverse, that the complaining party might be enabled, through the notice afforded, to defend against it. This plea before the court was precisely similar; it asserted an adverse possession, without stating in what it consisted; the tendered issue was too broad to be met; it was not, as it should be, clear, full and definite, and hence was rightfully overruled. The plea under consideration is in all respects alike, and should be subject to the decision there given. In both cases, a mere reliance of adverse possession is insisted upon, omitting to show how or whence it was derived.

The specific devise made was to the minister, elders and deacons of the church, for the express purpose of paying the salary of the minister; and 'to no other use and purpose whatever.' The minister then was the holder, both of the use and the trust; and hence, was it equivalent to or an actual bequest to the church in fee-simple.

He proceeded to show, that the disclaimer was insufficiently and badly pleaded; and that a plea of this description should be so presented that the complainants might know the persons against whom they should proceed: cited, 1 Montague's Pleas in Equity 216; Equity Draftsman 71.

Lord, with whom was Wood, for the respondents.—The only equitable relief sought by the bill, is discovery in aid of an action at law, partition of land held in common, and a declaration of an implied trust. To all these, the statute of limitations, and lapse of time, are a bar at law and in equity: no express trust for the complainants can be pretended; and a trust for others does not prevent the possession of the trustees from being adverse. Piatt v. Vattier, 9 Pet. 415; Elmendorf v. Taylor, 10 Wheat. 168; Bogardus v. Trinity Church, 4 Paige 178; s. c., 15 Wend. 111; Hunt v. Wickliff, 2 Pet. 208.

To obviate the bar of the lapse of time, the bill sets out that the respondents entered under leases, but this is denied by the plea: and the plea is supported by the answer, and admitted to be true, by not being put in issue. It is also objected, that the plea is insufficient, because it does not set out how the possession was adverse. This is not true, in fact. It sets out an actual occupation, claiming title in fee, in severalty, and without any trust for the complainants.

The plea may be considered in two aspects: 1. As setting up a possession without reference to the will alleged in the bill, as the source of the respondents' title: or, 2. As connected with that will.

1. Without reference, then, to the alleged paper title, the possession is alleged in the plea to be an actual occupancy, by inclosure and improvement, accompanied with claim of title, in severalty, in fee. This is sufficient to constitute adverse possession. In the case in 5 Sim. 645, the plea averred that the possession was adverse, without showing the facts rendering it adverse. Here, we show the facts, and upon them the court see the possession to be adverse; the plea does not withdraw from the court the legal question as to the character of the possession. Mere possession, without any other circumstance shown, is evidence of seisin in fee. Stark. Evid. 1191, note 9; Bull. N. P. 103. When evidence of title is given, it is then presumed, in the absence of contrary proof, to be in subordination to the title: but this presumption is not made, in the face of express proof of claim of title; but the possession is qualified by the claim of title, whether claimed as arising tortiously or otherwise. Bull. N. P. 404. Possession must be shown by the plaintiff in ejectment, as part of his case (Bull. N. P. 102; Run. Eject. 340); and a possession with a claim adverse to the plaintiff, certainly, is not sufficient to supply this want of the plaintiff. Possession, actual pedis possessio, does not require a paper title as the only criterion to show its character. See 2 Rev. Stat. (N. Y.) 221, § 5-13; Ricard v. Williams, 7 Wheat. 105, where the claim of title followed the possession, although no paper title was shown; Jackson v. Porter, 1 Paine 457; Jackson v. Olitz, 8 Wend. 440; Jackson v. Woodruff, 1 Cow. 276; La Frombois v. Jackson, 8 Cow. 603. In all these cases, the doctrine is distinctly announced in the language of the judges. See 2 Roscoe on Real Actions 502. To require that the plea should show how the possession was hostile in commencement, is allowing the very evil which the statute is aimed at; the older the possession the more difficult the proof. If then, possession is allowed to stand alone, it is clearly adverse, and the plea a perfect bar.

2. But it is said, that by not denying our entry under the devise, we admit it, and the plea must be taken with that fact. This requires us to consider the possession in connection with the paper title. By the will, all the lands are devised to the respondents, no charge merely is granted; nor is any express trust created for the heir-at-law. By the plea, all holding as trustee for the complainant is denied. Our possession under this will, then, is a possession under color and claim of a title in fee, contrary to the title of the heir-at-law.

It is said, however, that the will is void by the English mortmain acts, and so, not capable of being the basis of an adverse possession. For the purpose of this argument, we allow the will to be void; by virtue, not of the mortmain acts, but of the exception in the statute of wills, 34 Hen. VIII., c. 5, which statute was, in terms, re-enacted in New York to the time of the revision of 1830. 3 R. S. (N. Y.) app'x 51. But possession may be adverse, if taken under a void deed. Cases above cited; also, Jackson v. White, 13 Johns. 118; Jackson v. Brinck, 5 Cow. 483; Jackson v. Woodruff, Ibid. 276; Jackson v. Wheat, 18 Johns. 40; Jackson v. Newton, 18 Ibid. 355; Jackson v. Whitbeck, 6 Cow. 632.

But it is said, this doctrine only applies to voidable and not to void paper titles. Wills not conformable to the statute are always void. If made by a joint tenant, an infant, a feme covert, or without three witnesses, they are void: but will not a possession under such wills, for more than twenty years, bar an ejectment? Can the question of voidness be agitated, after an indefinite lapse of time? If so, such titles could never become confirmed by age; and wills, of all papers most liable to question from accident as well as want of skill in the writers, would be thrown out of the protection of the statute.

Again, it is urged, that being a religious corporation, it is against the policy of the law that their possession, commencing under a forbidden title, should ever become confirmed. But all that the law does, is simply to make the will void; it does not declare, nor can it be construed as limiting the operation of such a statute as that of limitations. This is doubling the statutory penalty, and that by implication. Besides, this argument would apply to all corporations, equally with religious; and to all conveyances, equally with wills. All the mass of property held by individuals, invested with corporate franchises, would be incapable of becoming sure by lapse of time. It is not an open question as to this cause, that corporations, even religious, may acquire title by possession, although commencing by fraud and wrong. Humbert v. Trinity Church, 24 Wend. 587; also, 15 Ibid. 111; decisions of a court of last resort, binding this court on a question of local law. Livingston's Lessee v. Moore, 7 Pet. 542. See also 16 East 5.

It is also urged, that our holding these lands increased our annual income beyond our charter license. By our answer, we show it not to be so, at the time of our entry, and at the date when we allege our adverse possession. Any subsequent or intermediate increase is not within the prohibition. 2 Inst. 722, on the statute 39 Eliz., ch. 5; recognised also, in Van Kleeck v. Dutch Church, 6 Paige 621, affirmed in error, 20 Wend. As to our fraudulently keeping down the income, by making long leases at low rents, and selling at a premium, and investing it; it is denied in the plea and supporting answer.

3. But it is urged, that supposing the will valid, a trust is created, which is not within the statute of limitations, nor barred from lapse of time. No express trust in favor of the complainants appears on the face of the bill. If a trust exist at all, it is for the ministers of the Dutch Church; it is not a trust for the complainants; and an implied trust is subject to the bar of lapse of time. Hovenden v. Lord Annesley, 2 Sch. & Lef. 624; Cholmondeley v. Clinton, 4 Bligh 1; 2 Jac. & Walk. 138; 2 Meriv. 173, 357; Provost v. Gratz, 6 Wheat. 494; 7 Ibid. 116. In truth, however, it is not a trust, but a charity; and if so, all surplus will go in augmentation of the charity; it being clear, that the land is wholly given away from the heir-at-law. Attorney-General v. Wilson, 3 Mylne & Keen 362; Thetford School Case, 8 Co. 130; Attorney-General v. Brazen Nose College, 8 Bligh (N. S.) 377; Attorney-General v. Haberdashers' Company, 4 Bro. C. C. 106; Attorney-General v. Sparks, Ambl. 201. And lands given to a charity may be aliened through the aid of chancery, if for the benefit of the charity. 8 Bligh 458; Dutch Church v. Mott, 7 Paige 79. The counsel also referred to the statutes of limitation, 21 Jac. I., c. 16; Bull. N. P. 102; 1 Rev. Laws (N. Y.) 185, § 2, 3, 5 (1813); 2 R. S. 292 (1830); also § 49-52; Bradstreet v. Huntington, 5 Pet. 402.

No formal defects of the plea are pointed out: the answer supports the plea, by meeting every matter in the bill stated as tending to countervail the plea, by qualifying the possession; if such answer is too general, that is subject of exception; the plea will not be defective on account of the answer, unless material allegation are left unanswered, not where thy are answered, but not with sufficient minuteness. Story Eq. Pl. 516, 536, 674, 675, 692.

Coxe, in reply.—The large amount of property involved in this case, and zeal and ability with which the defendants have resisted the complainants' demand, have conferred upon it an importance to which it never could have attained, had the subject of the controversy been less valuable, or the principles of law at issue between the parties alone been considered. The complainants are humble citizens, obscure and unknown; the defendants a wealthy and powerful corporation. They are, moreover, a religious body, professing, and it does not become me to intimate that these professions are not sincere, to appropriate their revenues as well as their services, in the most praiseworthy objects of human attention. These circumstances are calculated to enlist the sympathies of all our best affections.

Independently of these circumstances, the complainants have been unexpectedly deprived of the services of the distinguished counsel under whose advice this suit was originally instituted, and by whom it has, until this its last stage, been conducted, and by whom it was hoped it would be brought to a satisfactory and successful close. At this late and critical point in the case, they have been prevented, by circumstances unforeseen and unavoidable, to be present; and the entire weight of this responsibility has thus been devolved upon counsel comparatively strangers to the case. All that we can ask or hope, therefore, is, that due allowances shall be made for our situation, that the points of law which the case presents shall be thoroughly considered, the authorities on either side maturely weighed; and in full confidence that this will be done, we find compensation for our own weakness in the learning and wisdom of the court.

It becomes important in such a case to bring our minds to a distinct understanding of what constitute the real and substantial points at issue between the parties. The bill was filed by complainants, in March 1839. It avers, in substance, that John Haberdinck, together with four other persons named in the bill, were, prior to the 14th September 1696, seised in fee-simple, as tenants in common, of a certain tract of land in the city of New York, then known by the name of the 'Shoemakers' field or lands.' Being so seised, these parties made a division of part of said land into one hundred and sixty-four lots, leaving a residue which still remained undivided; made partition among themselves of the one hundred and sixty-four lots, assigning to each tenant in common his particular portion in severalty, and continuing their joint interest in the undivided part. That a deed was made and a map of the property, effectuating and showing this proceeding. John Haberdinck thus became seised in severalty in fee of certain of these lots, and co-tenant in common of the undivided portion. Prior to the 7th February 1723, John Haberdinck and his wife both died without issue. The complainants and one Peter Harpending are averred to be his heirs-at-law, and that no legal conveyance of any description has been made of said property, but that the same descended to and vested in the said complainants and Peter Harpending, as his heirs, who as such are absolutely seised of, and entitled to, said lands. That John Haberdinck, in his lifetime, made a lease of the said premises, or a part thereof, for ninety-nine years or some other long term, the details of which as well as the date are unknown to complainants. That defendants have, for some time past, been in possession of all the lots so held by Haberdinck in severalty, and have stated and claimed that they held under some devise or will of Haberdinck. That defendants are a religious corporation, incorporated under the laws of New York. That they have also obtained possession of the undivided lot, and allege that they have acquired it under some of the tenants in common.

Complainants have applied to defendants, 1st, For an admission or statement of the will of Haberdinck, under which they claim to hold, and for permission to inspect and read the same; to enable them to proceed at law for the recovery of the property. 2d, For a list or schedule of the several lots held by them or their tenants, under color and pretence of title, derived from Haberdinck, and for any lease or assignment to them, and for the rent roll and an account. That defendants pretend, that John Haberdinck was not so seised in fee, the contrary is charged by complainants to be the truth. That they held and now hold under a will of said John Haberdinck, and in pursuance of this allegation, they did, on or about the 7th March 1822, in conformity with a statute of New York, make an account or inventory of their property, and return the same to the chancellor, in which they represent that they hold said lands under the will of said John Haberdinck (prout the same). They aver said last will and testament of John Haberdinck to be a valid and lawful instrument, sufficient to vest said property in them; whereas, complainants, producing the will of John Haberdinck, duly proved, 7th February, 1723, aver it to be null and void; that it is in contravention of the law of the land, but that nevertheless defendants entered and held, and continued to hold, said land under it. That defendants at times pretend that they entered under a claim of title adverse and hostile to that of John Haberdinck, Jr., and have always held under such claim, and thus have acquired a valid title, whereas, complainants charged the contrary to be true, and aver, that defendants entered under certain leases of said John Haberdinck, now expired, or under some other title derived from him and subordinate to his title and that of complainants, his heirs, and particularly, under some long lease which expired between 1810 and 1822; that as late as 1810, in making a return and inventory of their property in conformity with the statute, they represent the same to be held by them under a devise of John Haberdinck.

The bill then sets forth the charter granted to defendants, in May 1696, setting forth the object of the incorporation; the power granted of holding lands within the amount of two hundred pounds or $500 per annum. That the annual value of the lands held by defendants, at the date of the charter, and for twenty years past, has been at least $10,000. That the lots claimed by defendants under John Haberdinck are of great value, greatly exceeding what by law they were authorized to hold; from 1780 to 1800, of the yearly value of $10,000; from 1800 to 1820, of the yearly value of $20,000, and from 1820, they have been of the yearly value of $30,000. It avers the entire invalidity of the devise, and the incapacity of defendants to take and hold the land; but if this be not so, that the devise is for a specific object, the maintenance of the minister of the church then held by defendants in Garden street, which was the only church held at the time of the devise under the charter; that this church has long since been extinct; the same having been sold by defendants, and that there being no minister such as alone was contemplated by testator, the object of testator's bounty has ceased to exist, and a trust results to the heir. That at all events, the object of the bounty was a precise one; no benefit was conferred or designed to be bestowed directly upon defendants; but a simple trust for the maintenance of the minister; and that should this trust be a valid one, the revenues arising from these lands, have, for a series of years, largely exceeded what was required for this purpose, and that complainants are entitled, if the immediate devise to defendants be prohibited, and therefore void, to have the estate either subject in their hands to this trust, or discharged even of that.

The bill avers then a prima facie case in the complainants. By not demurring to the bill, it is admitted, that the case thus exhibited is prima facie a case of right in them. It is met by a plea, which, so far as it is material to examine it, on the present occasion, and exclusive of the disclaimer of a portion of the premises, is a mere naked assertion of an adverse possession for forty years. It avers, that for all the time commencing forty years prior to the filing of the bill, viz., 25th March 1799, until the time of filing the plea—1. That defendants have been, by themselves and their tenants, in the sole and exclusive possession. 2. During all which time of possession, the lands have been improved by buildings, and inclosed with a substantial inclosure. 3. During all this time, defendants have actually occupied and possessed said lands, claiming and enjoying the same as being thereof in fee-simple, and in their own sole and exclusive right. 4. During all this time, they have been in the sole and exclusive possession, receipt and enjoyment of the rents, issues and profits, &c., claiming the right to receive and enjoy the same. 5. As to a portion of the land, they aver that more than forty years since they sold it, and have received the money for their own use. 6. In general terms, they traverse the particular right set up by complainants. So far, then, as there are affirmative averments made in the plea and answer, the defence set up is, in its whole length and breadth, an assertion of a possession for forty years, under a claim of title. So far as it negatives or traverses the averments in the bill, it denies any joint estate with complainants, or as trustee for complainants, or under any lease from complainants' ancestor, or under any title subordinate to that of complainants.

Independently of the averments in the bill which are thus met by the plea and answer, there are others which are not covered by either. Among these, it is only necessary to advert to some of the more important. It is not denied, that the original entry of the defendants was avowedly under and by virtue of the will of John Haberdinck; that as regards a part of the premises, they originally entered under the title of parties claiming to hold as tenants in common with complainants' ancestor; that they aver they hold under the will of John Haberdinck, set out in the bill; that in March 1822, they recognise the will of John Haberdinck as the foundation of their then title; that the will set out in the bill is the last will and testament of John Haberdinck, under which defendants claim to hold; that they did not originally enter under a title adverse to that of complainants; that they have always held and now hold under a title subordinate to that of complainants' ancestor; that defendants were not competent to take and hold under a devise from John Haberdinck, that if competent to take at all, it was merely as trustees for a specific purpose; that the income of the estate is far larger than is required for the specific purpose designated in the will, viz., the maintenance of a minister or ministers; that the church in Garden street is no longer in existence, nor is there any minister of such church. The averments in the bill are full and precise upon all these points, and not being traversed in the plea or answer, they are impliedly admitted to be true. This is a well-established principle of equity practice. Mitf. 295; 2 Dan. Ch. Pr. 98; Story Eq. Plead. 538, § 694; Bogardus v. Trinity Church, 4 Paige 178; 2 Sch. & Lef. 727.

With all these averments unanswered, defendants set up as their sole ground of defence, the possession of forty years, without any assertion of a patent, deed, agreement to convey, or other document to give validity or even color to their original entry and subsequent holding; without any allegation of an ouster of the co-tenants in common, and without any specification of the time when, or the circumstances under which, the original character of the possession became changed, and assumed a hostile type. This we conceive to be both defective in form, and insufficient in substance.

1. The defectiveness in form is not so material, but as our learned opponents have asserted the formal sufficiency and propriety of the pleadings, it may be as well briefly to examine this position. The plea presents a single point of defence to the entire bill, to the prayer for discovery and the prayer for an account, to the claim of a tenant in severalty and that of a co-tenant in common with defendants; to the title of complainants, as founded upon the original invalidity of the will which lies at the root of defendants' possession, and that which asserts a right as cestui que trust, either to the whole property, or to so much of it as may remain after fulfilling the specific trust created by the will. If this plea is bad as to one of these foundations of claim, it must be overruled. Now, it is unnecessary to advert particularly to the New York statutes of limitation; they have been read to the court. It may be as well, however, to remark, that the statutes of limitation in their terms apply only to suits at law, and that equity, by analogy, extends their provisions to suits in chancery. That these statutes prescribe different terms of limitation to suits of different characters, one period is fixed as a bar to an account, another to an ejectment, &c. There is no one applicable to each and every of the claims of complainant. Nor is there any statute of limitations of New York which prescribes the term of forty years as a bar to any species of action, or to any kind of recovery. Twenty years, the bar to ejectment, is the longest period applicable to either of the demands now set up, to some of them, especially a case of resulting trust in favor of the heir, upon the termination of the object of the bounty provided for by the testator, or for the surplus, after fully meeting that trust; it is believed, that no statute of limitations exists in New York, nor has this court of equity established such a bar. Even in reference to those parts of the case to which those statutes create a specific bar, there being no such period as forty years fixed, but a shorter period; the plea of forty years is vicious, inasmuch as it tenders an immaterial issue. The forms of pleading in courts of equity are not so precisely fixed as at common law, but there are certain precise rules, founded in reason, which must and ought to govern both. There is no better criterion by which to judge of the sufficiency of a plea, than that which is furnished by the inquiry, will its decision finally and necessarily decide the case? If a party pleads a bar of forty years, when the statute makes twenty or six years a bar, it results necessarily that the decision upon the fact against the party pleading it, is immaterial. Com. Dig. tit Pleader.

2. The more important question, however, is, is this plea insufficient, and consequently, bad in substance? We apprehend it is, both from the defects of the plea in general, and especially under the circumstances averred in the bill. There have been certain general principles laid down by the counsel for the appellee, which it is unnecessary for us to controvert in the abstract. It is stated as a principle of law, that an adverse possession may be pleaded as a bar against the recovery by a tenant in common. In this abstract form, the proposition is not denied. It may, under circumstances, be a good defence, in others, it may not. There must be something superadded, such as ouster of the co-tenant, to render it available. While we admit, that it may be made an effectual bar, we deny, that in all cases, it necessarily is so. If, then, the addition of such circumstances be essential to the validity of this plea, in the absence of those circumstances, or without the proper averment of them, the plea is defective. 5 Wheat. 116, 124; 7 Ibid. 120; 24 Wend. 587, 602. So, in certain cases, even a trust interest may be barred by the statute of limitations, but so far from this being the general rule, the reverse is the case, and it is only under special circumstances that such a bar is available by a trustee against his cestui que trust. Wherever the relation of trustee and cestui que trust is distinctly created, is real and substantial, and not merely the creature of implication, where equity will recognise its existence and enforce its obligations, the possession by the trustee cannot be converted into one of an adverse character; and lapse of time will interpose no bar. The trust is here averred in the bill, it is denied by counsel in argument, but neither the plea nor answer controvert the allegation. The bill also contains the precise averments which show the legal existence of a trust. These averments are unnoticed in the plea or answer, and must, consequently, on this argument, be assumed to be true. Nor is there any weight in the objection raised by counsel, in the argument, that the claim of a trust is incompatible with the general scope of the bill. That bill is framed with a double aspect; one of the views which it presents is, that if it was the design of the testator to provide a fund for the specific purpose mentioned in his will, which is clearly the case, from the strong affirmative as well as negative words employed by him; if no bounty was designed, beyond this specific purpose of maintaining a minister or ministers, if the defendants could take the property devised as trustee, then after performing this duty, and executing the design, the surplus belongs to the heirs, and the relationship of trustee and cestui que trust is established between complainants and the church. So, if the object of the bounty ceases to exist, as is also charged in this case, courts of equity do not regard the forms of instruments, they look to the substance and the intent, and give the construction which is consistent with such intent. Flagg v. Mann, 2 Sumn. 487; Lewin on Trusts 168, &c. Where lands are devised for a specific purpose, as for the payment of legacies, after the trust is fulfilled, there is a resulting trust in favor of the heir-at-law. 2 Powell on Dev. 32; Culpepper v. Aston, 2 Chan. Cas. 115, 223; 9 Mod. 171; Roper v. Radcliffe, 2 Eq. Cas. Abr. 508. So, when a devise is made to trustees, for a specific or particular object, and that object does not require the application of the entire fund, or exhaust the whole appropriation, the surplus will be decreed to the heir, even though a legatee. 2 Powell on Dev. 34-5; Starkey v. Brooks, 1 P. Wms. 390; Ambl. 165; 3 Dow 148. Nor is the trust alleged in the bill one which by writers on equity law is designated as a constructive trust, where a party, for the furtherance of justice, will be decreed to hold a particular estate as trustee for the rightful owner. Boone v. Chiles, 10 Pet. 177. The very instrument which creates the estate, by its own force and legal interpretation, clothes it with the trust, first, for the minister intended to be provided for; after this, for the heir. When such a trust is once fixed upon the party, the trustee cannot defend himself against his cestui que trust, on the plea that he holds adversely, for he shall never be permitted to create in himself an interest opposed to that of his cestui que trust. Prevost v. Gratz, Pet. C. C. 364. This part of the case, then, resolves itself into a simple question of construction. What is the true interpretation of the will? We think it clear, that whatever estate, if any, passed to the church, was purely a trust. No beneficial interest was designed for it, unless a merely incidental one. It was to create a fund for the single and exclusive purpose of paying the salary of the church in Garden street. This purpose, it is averred, upon one construction of the will, has ceased to exist, and the specific trust is at an end; on the other, that it does not exhaust the fund, but leaves a large surplus, and this surplus is claimed by the heir. These averments are not controverted by the pleadings.

Another of these general propositions asserted by the respondent's counsel is, that a corporation, even one of a religious character, may hold an adverse possession, and thus acquire title. In the abstract, this is not denied—such may be the case. It, however, by no means follows, that every possession by a religious corporation will be regarded as such an adverse possession as will furnish it with a shield against the rightful owner. The complainants contend, that this capacity in the respondents is limited and restricted. 1. Under no circumstances will it be available, when, in the case of a natural person, it would not be. Wherever, from the character of the possession, a private individual would be precluded from interposing such a defence; as, for example, where he held as tenant in common, or as trustee, it will not be allowed to the artificial person. 2. Where the acquisition of property is prohibited by the charter itself, and the corporation could not legally take and hold by actual conveyance, adverse possession cannot confer title. That cannot be indirectly acquired, the direct acquisition of which is inhibited. If, then, this religious corporation is incompetent to take by express devise, if the will would be null and void, an entry under it cannot ripen by lapse of time into a title. 3. It is wholly unimportant and inconsequential, whether this prohibition be found in the charter itself, or in a different and general statute. If the statutes of wills, or the statutes of mortmain, prohibit the corporation from taking by will, the prohibition is as effective as if it were done by the charter itself. New York v. Utica Ins. Co., 15 Johns. 355.

In some respects, the restrictions upon a corporate body in thus acquiring title, are greater than exist in relation to private persons. By way of illustration, it may be suggested, that when a natural person has disseised a rightful owner, and dies seised, by this casting of the descent, the heir succeeds to a higher species of title than his ancestor had. So, if a corporation should, by purchase, acquire the title of the original disseisor, or after descent cast, of his heir, this might furnish a good title by adverse possession. But the possession originally acquired by a corporate body, can never, in its own hands, thus ripen and strengthen. The vice of the original trespass adheres to it, so long as that possession lasts.

We are further told in argument, that the respondents have been in possession of this property, claiming and holding it as the rightful owners, from the year 1723, now nearly a century and a quarter; and that equity will raise any presumption to support such a possession; that to uphold it, a colonial license may be presumed, to take the case out of the prohibition of the statute of wills. This suggestion admits of many answers. In the first place, it involves a total departure from the defence set up. That defence is a possession of forty years, and this furnishes no ground for such a presumption. But no presumption can arise of the existence of an act which could not legally have been performed, and would have been purely void, if it existed. The colonial government had no authority to grant such a license, dispensing with the prohibitions of the statute. The doctrine of these dispensing licenses has been misapprehended. In England, this dispensation was a peculiar act of royalty. The general prohibition was founded on the principle, that these grants of land to corporations and in mortmain, were detrimental to the lords, by depriving them of their escheats. The king, the ultimate lord, was peculiarly injured by these alienations, and he was permitted, by his license, to ratify the grant, so far as to remit the penalty to himself. He could, however, by this license, only waive his own rights; he could not affect those of other or intermediate lords. Nor, even in England, were such licenses given in cases of wills.

It is contended, that the possession of defendants, as alleged in the plea, being under a claim of title in fee-simple, is an adverse possession, and creates a complete bar to complainants' recovery. In other words, the proposition is, that the character of adverse is recognised by the law as attached to the possession averred in the plea, throughout the whole continuance of that possession, and that this is a sufficient answer to the bill. Let us analyze this plea. The specific averments are these: 1. For all the time commencing forty years prior to the filing of the bill, viz., 25th March 1799, until the filing of the plea, defendants have been and are in the exclusive possession, &c. 2. That during all this time, the lands have been improved by buildings, and inclosed with a substantial inclosure. 3. That this possession and occupation have been accompanied by a claim and enjoyment of the premises, as owners in fee, in severalty, in their own right, and not otherwise. 4. The receipt and enjoyment of the rents, issues and profits, to their sole and exclusive use. 5. As to other of the lands, they aver, without specification of date, circumstances or party, a sale for a valuable consideration, and the receipt of the purchase-money by them. The great question in the case is, that these facts thus pleaded constitute a sufficient answer to the prima facie case set up in the bill. Respondents aver that these facts operate per se to bar complainants' recovery. To test this, let it be put into a logical and tangible shape. The proposition is, that a possession for forty years, of lands improved by buildings, substantially inclosed, under a claim of title in fee-simple, the sale of a part, and the receipt of the rents of the residue, to the sole use of defendants, constitute, per se, a valid adverse possession, which confers title, at all events, and under all circumstances. This is the proposition we are to encounter. This bar is alleged, notwithstanding the particular averments in the bill, which are, by implication, admitted to be true. 1. That defendants are under a legal disability to take or to hold the land. 2. That the original entry and the holding for a series of years was in subordination to the bill asserted by complainants. 3. That defendants have, solemnly and deliberately, within these forty years, recognised their title as taken under complainants' ancestor. 4. Without any averment as to the original character of this possession, or when or how it became adverse. 5. Without the averment of any deed, will or other document of title; without any allegation of ouster of the co-tenants in common; without any derivation of title from a prior adverse possessor. It is not averred, that the improvements by building, or the inclosure, were the acts of defendants. It is not alleged, that the claim of right was public or notorious, or within the knowledge of complainants, or of any other persons. It is, therefore, a mere naked possession. That this is not sufficient, is well established. Jackson v. Sharp, 9 Johns. 163; Jackson v. Waters, 12 Ibid. 365; La Frombois v. Jackson, 8 Cow. 598; Livingston v. Peru Iron Company, 9 Wend. 511; Thomas v. Marchfield, 13 Pick. 240; Sumner v. Child, 2 Conn. 607; Cottrell v. Watkins, 1 Beav. 361.

The next proposition is somewhat more specific. It is alleged, that a claim of the fee-simple, under a void documentary title, if accompanied with possession, constitutes an adverse possession, and creates a bar. No distinction is here taken between the defects to which the original documentary title may be subject. We concede, that where the deed, &c., is merely defective, and therefore, in itself, incompetent to pass an estate, it may yet be so far operative as to give a color to the party holding under it, and serve as the bases of a title by adverse possession. On the other hand, we assert, that where this deed is essentially void, as prohibited by law, it never can support or give adverse character to the possession acquired and held under it. The doctrine of respondents asserts a principle wholly at war with the fundamental principles of all codes of law and private morals. It assumes the power of time to convert that which is essentially wrong into right. It allows the laws to be violated, not only with impunity, but with recompense. It is at variance with the principle upon which all statutes of limitation rest. These statutes are emphatically statutes of repose; they proceed upon the doctrine that length of possession and lapse of time warrant the presumption, that such possession originated in right; that the evidence has been lost. They thus assume to supply what is imperfect, not to cure what was essentially illegal: 'never,' to use the language of this court, 'to enable one man to steal the title of another, by professing to hold under it.' Kirk v. Smith, 9 Wheat. 288; Ricard v. Williams, 7 Ibid. 107.

In the case at bar, the void character of the title under which respondents entered and held is established by the admissions on the record. It has been adjudged to be with the express prohibition of the law. This illegal title is admitted by the return to the chancellor set out in the bill, to be that under which defendants hold. That the declarations of a party as to the character of his title and possession are competent evidence, is conceded by the adverse counsel, in one branch of their argument, but if denied, is established by high authority. 7 Wheat. 111; 1 Paine 467. No grant or conveyance can be presumed, which is not in accordance and harmony with these declarations. 7 Wheat. 112. Presumption can never fairly arise, of the existence of a deed, when all the circumstances upon which it must rest are perfectly consistent with its non-existence. 7 Wheat. 109; Jackson v. Porter, 1 Paine 457, 464. The whole current of authorities sustains our proposition, that no possession can, by lapse of time, acquire the immunities attached to an adverse possession, when it had its inception in that which the law prohibits. Kirk v. Smith, 9 Wheat. 283, 541; 9 Wend. 511, 516; 7 Ibid. 152; 4 Dana 479; 9 Cow. 361, 543; 5 Ibid. 346; 6 Ibid. 751; 13 Johns. 537; 10 Ibid. 462; 12 East 141; 8 Cow. 590, 606, 610, 617, 621; Ballant. on Lim. (Tillingh. edit.) 374.

The distinction which has been attempted will not bear examination. It is said, that the cases, in which this proposition has been asserted, are only those in which the entry has been made under a foreign title, and therefore, in hostility to the sovereignty of the state; or where the title was fraudulent in its inception. The authorities do not justify or sustain this restriction. The cases of the Canadian grants were adjudged illegal, because derived from a foreign power, and being invalid, they were insufficient to support the possession. The illegality was the basis of the judgment. In this case, the will was in the face of a peremptory statute prohibition; in that class of cases, the illegality was only implied.

We are now told, that the statutes of mortmain which have been invoked by complainants, are not in force in New York; and 2 Meriv. 143, is cited to sustain the assertion. The same case was cited in 20 Wend. 480, to sustain the same proposition, and it then received a conclusive answer. This question is not, however, now open for discussion; the devise is conceded to be illegal and invalid; that this will is the foundation of respondents' title, is admitted. The question is, can a title, originating in an act distinctly prohibited, become effective and valid by lapse of time.

It has not been thought important, to dwell particularly upon the allegations in the bill which relate to the inventory and return made by respondents to the chancellor of New York. One of these represents their title as derived under a demise of John Haberdinck; and this alone is noticed in the answer, in which it is averred to be a clerical error. What was the nature and extent of that error, or how it occurred, is not stated. Obviously, it was the mere mistake of using the word demiso for deviso; for in relation to the second return, in which they represent themselves as holding under the will of John Haberdinck, the answer does not even notice it. Under these circumstances, it is submitted, that the defence set up is essentially defective, both in form and substance.

CATRON, Justice, delivered the opinion of the court.

The respondents rested their defence below on a plea in bar; that they had been in actual adverse possession of the premises, in regard to which they are asked to account and make discovery, for forty years next before filing of the bill. The plea was sustained; and from this decree there was an appeal prosecuted to this court by the complainants. 1. They insist the plea is bad in form: and 2. Insufficient in substance.

1. The first objection to the form of the plea is, that it does not rely on twenty years' adverse possession, but on forty years; twenty years being the time of holding adversely to constitute a bar by the statute of New York. In this respect, there is no technical rule observed by the courts of chancery. If the complainant, by his bill, or the respondent, by his plea, sets forth the facts from which it appears that the complainant, by the statutes of the state, has no standing in court, and for the sake of repose, and the common good of society, is not permitted to sue his adversary, it is the rule of the court not to proceed further, and dismiss the bill. Had the complainants set out the fact of forty years' adverse possession, then a demurrer interposing the bar would have been the proper defence, countervailing circumstances aside. Such was the course taken in Humbert v. Trinity Church, 24 Wend. 587, and which was in accordance with the established practice of courts of chancery.

2. It is insisted, that the act of limitations is not relied on, by express reference to the statute of New York. We think it was unnecessary to rely, in terms, on the statute. It was more convenient not to do so. The bill seeks discoveries, the right to have which, twenty years' adverse possession could only bar. It also seeks an account of the proceeds of sales of parts of the estate, and an account of the rents and profits of other parts, assuming the respondents to be trustees for the complainants. To this aspect of the bill, six years forms the bar to a decree. The court is judicially bound to take notice of the statutes, when the facts are stated and relied on as a bar to further proceeding, if they are found sufficient. So the chancellor of New York held, in Bogardus v. Trinity Church, 4 Paige 197; and we think correctly.

3. In regard to the substance of the plea, it is insisted for respondents, 1. That the answer does not cover and support the plea, by the denial of facts alleged by the bill, which, if true, obviate the bar. That, taking the facts alleged as established by admission, then the respondents were express trustees for the complainants, held possession for them, and are compellable to account, regardless of the lapse of time. To test the sufficiency of the answer, we must take every allegation of the bill as true, which is not denied by the answer; and then inquire, whether, those facts being admitted, the plea is sufficient to bar the claim to relief set up by the bill. 4 Paige 197; Mitf. 300; Plunket v. Penson, 2 Atk. 51; 15 Ves. 377.

The complainants charge certain circumstances, which, if true, preclude a bar, without admitting the existence of the bar; yet, alleging facts which obviously stand in the way of relief, unless the circumstances be true. They have the undoubted right to call on the defendants to furnish by their answer, the evidence that they did hold the church estate as express trustees; and under and for the respondents. These facts would invalidate the plea, if admitted, and the defendants must answer to all the matters which are specially alleged as evidence of these facts. Nor would the denial in the plea serve the purposes of the complainants, for on setting it down for argument, its truth must be admitted. Story's Eq. Plead. 515, § 672-3; Beames's Pleas in Equity 33-4.

Have the respondents furnished the evidence claimed from them, or, have they repelled the circumstances by a sufficient denial of their existence? If unanswered, the circumstances must be taken as true, for the purposes of resisting the plea (as already stated), to the extent that they stand unanswered. The bill alleges, that John Haberdinck, in 1696, jointly with four others, was seised in fee-simple of a tract of land called the Shoemaker's field, lying on the north-east side of Maiden Lane, in the city of New York. In 1696, the parties divided the premises, in part, into lots; and the other tenants in common conveyed to John Haberdinck, in severalty, his one-fifth part of the lands divided, which are severally described by lots. That, previous to 1723, Haberdinck died, leaving no children. John Haberdinck, Junior, was the lawful heir of John, the elder; and the complainants are descendants and heirs of John the younger. That no sale or devise of the premises has ever been made by any of the ancestors of complainants through whom they claim; and that they are entitled and seised as heirs-at-law and by right of succession. That the Reformed Dutch Church of the city of New York, by its ministers, &c., had been possession of the premises held in severalty by John Haberdinck, and claimed to have taken possession under some will or devise of John Haberdinck, whereby the premises were devised to them.

The first circumstance stated in evidence of the bar is, that John Haberdinck, in his lifetime, had let the premises, or some part thereof, to lease, for ninety-nine years; and that the lease expired in 1819. When the bill was filed, does not appear by the record. We take it, within less than twenty years after 1819. To whom the term of ninety-nine years had been granted, the bill does not in this part of it allege. The defendants deny all knowledge of the existence of any such lease; except for three lots to William Huddleston, dated in 1723, for the term of seventy years, from the first of May of that year; and this lease is not thought to be genuine. This answer we deem sufficient.

It is next alleged, that the ministers, &c., of the church are a religious corporation, duly incorporated and located in the city of New York; and as such, obtained by purchase from some of the tenants in common with John Haberdinck, the elder, or from some one claiming under them, parts of the Shoemakers' field not partitioned in 1723. This allegation needed no answer in support of the plea. One tenant in common may well hold adversely to, and bar his co-tenant.

The complainants also allege, they applied to the corporation for an inspection of title-deeds; an account of sales; of rents and profits; for possession of the lands, and a partition of the undivided part; which had been refused. If barred of the right to the land, so were the complainants of the relief sought by their request to the corporation. Nor has the contrary been assumed. As to title-deeds, none but the lease for ninety-nine years could have aided the complainants; and the distinct answer that none such existed covers this allegation.

As a supervening circumstance, complainants allege, that respondents, in 1822, acknowledged they entered and held under the will of Haberdinck, the elder, by an account and inventory of their property rendered to the chancellor of New York, pursuant to a statute of that state. The will is then set out, dated 1722, by which the property was devised to the ministers, elders, &c., of the church, and their successors for ever, with its probate; and the devises therein, to the religious corporation, are alleged to be illegal and void; that no title was taken under the will; and that the possession was held in subordination to the right and title of the heirs-at-law. It is reiterated, that the corporation entered as assignees, under leases for long terms of years, made by John Haberdinck, in his lifetime, and which have lately expired; or, under some other title derived from John Haberdinck, and subordinate to the title of the heirs-at-law; but particularly, under a demise by Haberdinck to the ministers, deacons, &c., or to some other person, which was assigned to them, and which expired between the years 1810 and 1822. And under some title, subordinate to that of the heirs-at-law, the respondents have ever claimed, held and enjoyed the premises. That so late as the year 1810, they admitted, by an inventory returned to the chancellor, that they held under a demise to the corporation by John Haberdinck. The charter granted by the king in 1696, is substantially set forth, and it is averred, the annual profits of the premises devised, exceed two hundred pounds, or $500, the extent to which the church was permitted by law to receive profits; that from 1780 to 1800, the yearly value of the premises was $10,000; from 1800 to 1820, $20,000; and from that time to the date of the filing of the bill, of the yearly value of $30,000. That to keep down the rents, long leases have been given at low rates; and then the leases have been sold out, and other lands purchased with the proceeds of the sales, and other investments made. That a religious corporation, which is by law incapable of receiving or taking lands by devise, cannot hold adverse possession of such lands upon which they have entered and always claimed under such devise. This being the case of the respondents, the complainants were entitled, as heirs-at-law, to rents and profits and the proceeds of sales; at least, after deducting therefrom a support for the ministers of said church, which the income greatly exceeded, and to which extent and no other, by the terms of the will, could the revenues and income of the devised premises be applied. And a discovery and account is asked of the surplus, if no more.

As to parts of the premises, the defendants disclaim title; and as to other parts, they plead they had sold and conveyed in fee-simple, more than forty years before the filing of the bill; and the alienated lands had ever since been held and enjoyed under the conveyances adversely to the claim of the complainants. To such parts of the foregoing allegations as charge in any form a holding in subordination to the title of complainants as tenants in common, or, by demises or otherwise, the respondents answer in various forms, that they claim to hold for themselves in severalty and in fee-simple, and in hostility to the claim set up in the bill, for forty years next before it was filed; that they never acknowledged any title in the complainants, and that the expression in the return to the chancellor, that they held by demise under John Haberdinck, was a clerical error. Respondents neither admit nor deny that they held under the will of John Haberdinck; or that they have received revenues and profits, as charged. These facts are treated as immaterial. Not being answered as repelling circumstances, they must be considered as true.

The plea avers, that for forty years previous to the time of filing the bill, that is, from 1799, and up to the date of the plea, the defendants had been, by themselves and their tenants, in the sole and exclusive possession of all and singular the lands in the bill mentioned (except those disclaimed); during all of which time, all and singular the said lands have been improved by buildings, and inclosed with substantial inclosures, and actually occupied by themselves and their tenants, claiming and enjoying the same as being seised thereof in their demesne as of fee, in severalty, and in their own sole and exclusive right, and as the exclusive and sole owners thereof, and to their own sole and exclusive use, and not otherwise; and that respondents have, in like manner, been in the receipt of the rents and profits. As to that part of the premises alleged to have been sold, respondents plead, that more than forty years before the filing of the bill, thus being in possession in their own right and severalty, and claiming the right to sell and convey in fee-simple absolute, did grant and convey the same in fee-simple, absolute, for a valuable consideration to them paid, and which the corporation applied to its own use, claiming the right to do so, without any accountability to any person whatever; and the said premises have ever since been held, occupied and enjoyed under said conveyances, adversely to the claim of the complainants, in their bill set forth.

Stripped of the circumstances met by the answer, and the case presented to us for decision is simple. The complainants claim under Haberdinck, the elder, as heirs-at-law. The respondents entered under the will of Haberdinck, and have for more than a century claimed under it. The complainants allege the will is void; the respondents disregard the allegation as immaterial, and raise no question on its validity. They rely on forty years adverse possession, claiming to hold for themselves in fee-simple, and in severalty. To cover the possession, no paper title is invoked, substantial inclosure and actual occupancy for forty years, are relied on in substitution of a valid paper title. The plea having been set down for argument, the facts it assumes must be taken as true; and we are called on to pronounce the law on the facts.

The defence set up is independent of the complainants' case, and purely legal in its character, in so far as the bar is sought to protect the possession of the lands, supposing this to be the relief prayed. This is not the case, however; the bill seeks—1. An account of the rents and profits; 2. An account of the proceeds of such parts of the lands as the corporation has sold; 3. The production of the title papers and rent-rolls, appertaining to the estate; and 4. A discovery of the amount of the proceeds by rents and sales, through a series of years; treating respondents as trustees for the complainants. As these are incidents to the title, if it is confirmed in fee-simple to the respondents, by force of the statute of limitations of the state of New York, and the complainants are barred of their recovery at law of the estate, the incidents of rents, proceeds of sales, and discovery of title papers follow the title, aside from the shorter bar of six years in regard to the money demands. At the end of twenty years from 1799, when the adverse possession commenced, if the statute of limitations applied to the case made by the plea, the defendants had a title as undoubted as if they had procuced a deed in fee-simple from the true owner, of that date; and all inquiry into their title, or its incidents, was as effectually cut off.

Complainants contend, that in 1722, a devise to a corporation, for the purpose of maintaining religion, was void, where the income from the property bequeathed exceeded two hundred pounds, being contrary to the statute of wills of Henry VIII.; therefore, the will of John Haberdinck was inoperative, and the premises descended to the heir-at-law. Nor could the corporation take by deed more than by will. Having no capacity to take by will or deed, and the operation of the act of limitations being a confirmation of a supposed paper title from some one, of the whole premises, the corporation, in like manner, wanted capacity to take by force of the act of limitations; which would be in equal violation of the statute of Henry VIII. On this presumption, the bill is obviously founded; and it is, in fact, the only question in the cause.

Respondents insist, on the other hand: 1. That the devise was to a charity, and therefore not embraced by the statute of Henry VIII. 2. That bodies corporate are excluded from the statute of Henry VIII., by the statutes of the state of New York; 3. That there is no allegation in the bill, that the income of the devised premises was worth more than two hundred pounds, in 1722, when the will took effect; and if the will was valid then, it continued to be valid afterwards, according to 2 Inst. 722; 4. That we are bound to presume, after the lapse of more then a century, the existence of a colonial statute authorizing the bequest; and which has been destroyed by time and the accidents of the revolution in the government. These considerations are mere incidents in the controversy as it is presented to us; none of them seem to have been conclusively settled by the decisions of the state courts of New York, and therefore, we express no opinion upon them. It may be true, that in 1722, the corporation of the Protestant Dutch Church could not take, and yet in 1799, it was enabled by the statutes of New York to take and hold the premises. If so, time could confirm the title, because of the newly-created capacity.

Be this as it may, we are bound to conform to the decisions of the state courts of New York, in the construction of their acts of limitation. Such is the settled doctrine of this court. Green v. Neal, 6 Pet. 291. The chancellor of New York held, in Bogardus v. Trinity Church, 4 Paige 178, that the corporation could make defence, and that it did take title by force of the act of limitations. The court of errors held the same, in Humbert v. Trinity Church, 24 Wend. 587. As no distinction is made by the state courts of New York between a religious corporation and an individual, in regard to capacity to hold by force of the statute, none can be taken by this court.

It is only left, then, to consider whether a naked possession is protected by the statute, to the extent of the substantial and actual inclosures, for all the time necessary to form the bar. The statute of New York is in substance the same as that of the 21 Jac. I.; that such a possession as is set forth by the plea is protected by the statute, has been the settled doctrine of the courts of that state for more than thirty years, if it ever was doubted. We need only refer to Jackson v. Shoemaker, 2 Johns. 234; Jackson v. Wheat, 18 Ibid. 44; Jackson v. Woodruff, 1 Cow. 285; and Jackson v. Olitz, 8 Wend. 440. These cases were at law, and the statute is equally binding on the courts of chancery, where the complainants seek to have an account of rents and profits accruing out of a legal estate. This is also settled by the state courts of New York, in 4 Paige 179, by the Chancellor; and in 24 Wend. 587, above cited, by the court of errors. We, therefore, concur with the circuit court, that the first part of the plea must be sustained, for so much as it covers.