
    Shaver and others against Radley and others.
    
      February 9th.
    
    If a trustee by implication, is to be affected by an equity, that equity must be pursued within a reasonable time.
    Where the defendant, a bona fide purchaser without notice, and those under whom he claimed, had been in possession of land, above twenty-six years, before the plaintiffs filed their bill to enforce their claim, founded on an implied trust, the bill was dismissed, but without costs, under the circumstances of the case.
    A defendant whó answered an original bill, after a decree against him, petitioned for a rehearing, which was granted, and the plaintiffs filed a bill of revivor and supplement, to which the defendant answered and disclaimed, he was held  entitled to costs, on the dismissal of the bill. ^ *
    THE origina^ bill, filed March 8th, 1799, stated, that Andrew Makaus 
      
       was seized of eighty acres of land in the Van Baal patent, in the manor of Rensselaer. That A. M., by his will, dated August 15th, 17.49, devised one half of his land to his son Peter, in fee, and the other half to his daughter Annatie. The testator died, and his son, also, died, soon after. Annatie married John Radley, and their children, and the children of another daughter, Maritie, who married Abraham Bradt, were plaintiffs. Elizabeth, another daughter of the testator, died intestate. A dispute arose about the boundaries of the Van Baal patent, which was submitted by the proprietor of that patent, Van Rensselaert to commissioners, in 1774, who awarded the said farm to S. Van Rensselaer, the proprietor of the manor, who was bound by a stipulation in the submission, to confirm the title of the grantees under the Van Baal patent, subject to the like rents and conditions used in the manor leases-In pursuance of the award, the proprietor of Van Baal’s patent, on the 14th of March, 1789, assigned the counterpart of the lease to the testator, in fee, to the proprietor of the manor of R. The original lease to the testator, was dated October 19th, 1732. The two devisees took possession of the farm, and enjoyed it, until the death of Peter; and Annatie continued in possession until her death, which was long before the filing of the bill. Her husband, John Radley, who survived her, married a second wife, by whom he had issue, and who are the defendants. The bill further stated, that John Radley, having obtained the title deeds and will of A. M., destroyed them. That he continued in possession until his death, in 1785, and that the defendants, or some of them, have since continued in possession. That J. R., or his last wife, or the defendants, after their death,, by false suggestions that they were the legal possessors, obtained from the proprietor of the manor of R., a deed, in fee, for a tract of land, including the eighty acres, subject to an annual rent, &c.; and under that deed keep possession of the said eighty acres, and refuse to produce or to admit the title deeds and the will of A. M., so that the plaintiffs are unable to recover the farm or rents at law. Prayer, for discovery and relief.
    The four defendants, on the 2d of September, 1799, put in their answer, stating, among other things, that they did not know, or believe, that A. M. died seised, or made a will, &zc. and set forth their title as derived under the will of their father.
    They denied the suppression of the will. They admit, that in 1773 the widow of the proprietor of the manor of R., gave a lease to their father, of 100 acres of land, including the eighty acres, for thirteen years; and that, in 1791, the present proprietor of the manor, gave to their mother a new lease, for 220 acres, including the eighty acres, in fee, subject to an annual rent of thirty skipples of wheat, 8zc. They denied, that any false suggestions were made, &tc.
    Witnesses were examined, and publication passed, and the cause brought to a hearing, before the late Chancellor, in 1813, when it was decreed, that the defendants, and their wives, should release to the plaintiffs, two undivided third ' 1 . parts of the eighty acres, and deliver possession thereof; anj a reference was made to a Master, to state an account of the renté and profits received by the defendants.
    On the 19th of September, 1814, three of the defendants, one having died in the mean time, presented a petition for a rehearing, in which, among other things, they stated, that the property in the eighty acres of land, were  vested in the defendant, William Radley, and the other defendants had no interest, &c.
    A rehearing was ordered; and the defendants had leave to amend their answer, and the plaintiffs had leave to file a , bill of revivor and supplement; the depositions taken, to be evidence, and the motion as to costs of the petition reserved, he.
    
    On the 1st of August, 1816, the plaintiffs filed their bill of revivor and supplement, stating additional plaintiffs, and various changes by death and marriage, and deducing title to the plaintiffs. They repeated the charges in the original bill, &c.
    
      William Radley put in his separate answer to the bill of revivor, &c. And the other two defendants answered, and disclaimed, and prayed for costs.
    The material facts appearing in the pleadings and proofs, which were very voluminous, are sufficiently stated in the opinion of the Court.
    
      Van Vechten, for the plaintiffs.
    
      Burr, for the defendants.
    
      
      
         not
      
    
    
      
      
         Makause
    
    
      
      
        was
      
    
   The Chancelllor.

1. If the land in question had belonged to the Wan Baal patent, and not to the manor of Rensselaer, and Jlndrew Makaus had been legally seized in fee, at the time of his death, the plaintiffs, who are children of Annatie Radley, would have shown a title to a moiety of the premises.

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

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

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

. The charge in the bill, that the parents of the defendant, William Radley, suppressed the will and title deeds of Andrew Makanse, and obtained a title under Van Rensselaer> by false suggestions, is not supported by proof. It appears that disputes and controversies existed between the proprietors under the Van Baal and Van Rensselaer patents, and ejectment suits had been brought on each side. In July, 1774, the proprietors submitted the dispute to arbitration, and by the award of the referees, in May, 1775, the lands now in question were declared to belong to the manor of Rensselaer. It is suggested, that, by the terms .of the submission to arbitration, the title of the grantees under the Wan Baal patent was to be confirmed, under the like rents and Conditions, in case those grantees should fall within the manor of Rensselaer. But neither the defendants, nor their parents, (Johannis Radley, and his second wife, Catharine,) were parties to that submission, and there is no evidence that the knowledge of such a stipulation ever came to them, or either of them, and the fact of such knowledge is denied in the answer. When Johannis Radley obtained a lease, in 1773, from Mrs. Van Rensselaer, for thirteen years, he acquired a title by purchase from the true owner, upon the usual covenants and conditions contained in the printed leases, and upon a yearly rent of fifteen skipples of wheat. This appears to have been a fair purchase, and without any ground upon which to raise a trust, in favour of the plaintiffs, under Makanse. The title under Makanse was denied, and resisted, and proved, afterwards, to have been null and void from the beginning. It was a safe and necessary7 purchase under the rightful owner; and the suggestion of a fraudulent attornment is not supported. If there was any fraud, it was committed against the proprietors of the Van Baal patent, who were seised of the rents under the original lease to Makanse; and they would be concluded from the suggestion, since they submitted their title to a tribunal which decided that they had none. The taking a lease under the true owner, was a tabula in naufragio. His tenancy by the curtesy was unsound and worthless; and the mere fact of his being an occupant under such a pretension, would not render him a trustee under the new lease. The claimants, under Makanse, had no title, in law or equity, to a confirmation of their lease by the true owner, unless under some covenant to that effect, and to that the Radleys were strangers. It does not appear that the lease was given to Johannis Radley, upon any other ground than that of his being a person in actual possession, which, of itself, gave him no legal or equitable right to the lease. He died in possession, before the expiration of the lease; and sometime after his death, his widow, Catharine Radley, procured from Van Rensselaer, in 1791, a lease in fee, subject to a variety of covenants and conditions; and among others, to the payment of an annual rent of thirty skipples of wheat. This lease, in fee, to Catharine Radley, was not in pursuance of any stipulation in the submission to arbitration. There is a great difference, both as to the quantity of land, and as to the rents and covenants, between this lease and the one in 1732, to Makanse, the counterpart of which had been assigned to Van Rensselaer, in 1789. There is no analogy between them. This is to be considered, not as the confirmation of the same grant, but as a new and original purchase made by the grantee, in good faith, and without knowledge of any legal obligation in Van Rensselaer to give it. She. afterwards, conveyed the premises to Rybert Radley, and he to the defendant, William Radley, who holds as a bona fide purchaser, without notice of any trust arising from the terms of submission to arbitration, and without being chargeable with any fraud that might have been imputable to his father.

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

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

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

Decree accordingly. 
      
       dismissal of bill, costs denied to defendants, on the ground of laches on their part, and hardship on the part of the plaintiffs.
     
      
       defendant who answered an original bill, after a decree against him, petitioned for a rehearing, which was granted $ and the plaintiffs-‘filed a bill of revivor and supplement, to which the defendant answered and disclaimed ; he was held not entitled costs, on dismissal the bill, ____ was exempted from costs under the firstdeto the of but
     