
    THE ATTORNEY-GENERAL, EX RELATIONE VAN BUREN RYERSON, WILLIAM VAN HOOK, AND OTHERS, v. “THE MAYOR AND COMMON COUNCIL OF THE CITY OF NEWARK,” AND JOHN H. STEPHENS.
    1. In 1686, the proprietors of the Province of East New Jersey conveyed to four persons of the town of Newark, “ all that tract of land allotted for the burying place,” (describing it,) “to have, &c., unto the said grantees, their heirs and assigns forever, to the only use of the old settlers of said town, their heirs and assigns forever, to be and remain to and for the uses therein specified ; and to be appropriated to no other use or uses whatever.” The trustees took possession of the tract, and held it in trust for a burying-plaee; and it was so used from the date of said conveyance until 1829. In 1798, the inhabitants of Newark were incorporated, in 1804, the legislature passed an act vesting the said trust estate in the corporation, and declaring that the estate thereby vested should be appropriated and forever remain to and for the uses in the said original grant expressed, and for no other use or uses whatever In 1836, “Tlie Mayor and Common Council of the City of Newark,” by the act incorporating the freemen of Newark under that name, became, by tha provisions of said act, seized of all the lands, property, &c., of the former corporation, according to such estate and interest therein as the said former corporation had. In 1844, “The Mayor and Common Council” leased a part of the said tract, so allotted for the burying place, to J. IT. S.
    2. In 1844, an information and bill was filed, praying that the said lease may be get aside, and that the mayor and common council may be decreed to hold the said trace subject to the trusts aforesaid.
    
      S. The defendants pleaded, that by the fundamental constitutions for the said province, established in 1683, it was declared that 14 years’ quiet possession should give an unquestionable right to any lands, except in the case of infants, <&o.'; that the first settlers of Newark had quiet possession of the said trae! 14 years, from 1667 to 1695; that said tract was, in 1667, and from that time until 1713, in the quiet possession of the said first settlers, until they were, in 1713, by letters patent from Queen Anne, incorporated by the name of “The Trustees of the Freeholders and Inhabitants of the Township of Newark,” and that the said “The Trustees of the Freeholders,” &c., were and continued in quiet possession until 1798, when the act was passed incorporating “The Inhabitants of the Township of Newark and that the said last-mentioned corporation were in actual possession until 1836, when the act was passed incorporating “ The Mayor and Common Council of the City of Newark ;” and that the said last-mentioned corporation were then, and ever since have been in the possession of the said toot.
    4. The plea was overruled, and the defendants were ordered to answer.'
    On the 25th of December, 1844, R. P. Thompson, attorney-general, at and by the relation of Van Burén Ryerson and Williana Van Hook, and Richason Buckbee, on behalf of himself and the old settlers of Newark, their heirs and assigns, now being inhabitants of Newark, and of all persons having an interest and title in and to the public trust and uses, &c., exhibited an information and bill, setting forth that Buckbee is an inhabitant of Newark, and owner in fee of lands in Newark, and as such owner and inhabitant and assignee of the old settlers of Newark, has an interest and title in and to the said public trusts and uses set forth in the bill; and that they, the said owners, inhabitants and assigns are too numerous and too difficult to be ascertained to be made parties to this bill and information.
    That on the 1st of December, 1696, the proprietors of the Province of East Jersey, by conveyance of that date, signed by Andrew Hamilton, then governor of said province, and by the ■major part of his council, in consideration of the rents and services therein received, and other good causes and considerations, did give, grant, bargain and sell unto John Curtis, John Treat, Theophilus Pierson and Robert Young, all of the town of Newark, in the county of Essex and province aforesaid, among other lands therein described, “all that small tract allotted for the burying-place, taking in the pond and meeting-house, being seven chains in length and four chains in breadth, bounded west by John Treat, south by John Johnston’s, north and east by highways, together with all, &c., to have and to hold the said several tracts, with their appurtenances, unto the said grantees, their heirs and assigns forever, to the only proper use, benefit and behoof of the old settlers of the town of Newark aforesaid, their heirs and assigns forever, in common granted, to be and remain to and for the several uses therein particularly specified, and to be appropriated to no other use or uses whatever; to be holden in free and common socage of them, the said proprietors, their heirs and assigns forever, as of the seigniory of East Greenwich, yielding and paying therefor, unto them, the said proprietors, their heirs and assigns forever, six pence sterling money of England, for the aforesaid several tracts of land, on every five and twentieth ■day of March forever thereafter, in lieu and instead of all other services and demands whatsoever;” which instrument was immediately recorded, &c.; and in and by the said deed, all the above described premises were to be held subject to the public ase thereof by the old settlers of the town of Newark, 'their heirs and assigns, and for the pious and charitable purpose of a burying-ground, and for the interment of themselves and their respective families forever; and ought to have been, and still ought to be, devoted to the same public uses.
    That the said trustees took possession, among other lots, of the lot allotted as aforesaid for a burying-place, and held thg same in trust for the purpose in the said deed expressed, to wit for a burying-place, to the only proper use, benefit and behoof of the old settlers of the town of Newark, their heirs and assigns ; and that said lot was so used from the date of said instrument till within the last fifteen years j and that a portion of it still remains unoccupied except as such place of burial.
    That the inhabitants of Newark were incorporated by an act of the legislature passed February 21st, 1788, by the name of “ The Inhabitants of the Township of Newark in the County of Essex.”
    That on the 15th of February, 1804, all the said trustees being dead, and who the heir of the survivor of them might be, being unknown, the legislature, by an act of that date, enacted that the trust estate so vested in the said four trustees should thenceforth cease and be void, and that thenceforth the estate so vested in the said four trustees should be vested in the “ Inhabitants of the Township of Newark in the County of Essex,” as incorporated by law, and their successors forever; and they were thereby vested with the legal title to the same as fully as though they had been originally named in the said grant in the' place of the said John Curtis, John Treat, Theophilus Pier-son and Robert Young, their heirs and assigns; saving, nevertheless, the right or rights of any bona fide purchaser or purchasers for a valuable consideration without notice of the said trust of the said Curtis, Treat, Pierson and Young, their heirs and assigns; and by which act it was provided that nothing therein contained should in any way extend to or affect the parsonage lands contained in and particularly described in said grant, and also such parts of the burying-ground described in said grant as had either been leased or sold by the trustees of the First Presbyterian Church in Newark, previous to the 1st of January, 1804; and by which said act it was further enacted that the estate thereby vested in the “ Inhabitants of the Township of Newark,” as aforesaid, should be appropriated and forever remain to and for the several uses in the said original patent aforesaid expressed, and for no other use or uses whatsoever.
    That at the time when the inhabitants of Newark were incorporated as aforesaid, the said township included within its limits a larger tract of country than is now comprehended within the bounds of the city of Newark, incorporated as afterwards mentioned in the bill.
    That, from time to time, the legislature have set off portions of the township of Newark, and erected said portions into other townships, with all the privileges, advantages and authorities of townships under the act of February 1st, 1798, incorporating townships.
    That, after the setting off of said new township, the premises contained in the said trust deed were contained in the township of Newark, and that the heirs and assigns of the old settlers as aforesaid, being inhabitants of the township of Newark, were entitled to and interested in the same rights and privileges, as far as the said grant is concerned, as they before enjoyed or were entitled to.
    That the legislature, by an act of February 29th, 1836, among other things, incorporated the freemen, inhabitants within the limits of the township of Newark as then established, by the name of “ The Mayor and Common Council of the City of Newark,” and enacted that they and their successors should, by virtue of the said act, be vested with, possess and enjoy all the lands, tenements, hereditaments, property, rights, causes of action and estate whatsoever, both in law and equity, in possession, reversion or remainder, which, at the time of passing said act, were vested in or belonged to the inhabitants of the said township of Newark, in their corporate capacity, as at that time incorporated by the name of “ The Inhabitants of the Township of Newark in the County of Essex,” according to such estate and interest as the said “The Inhabitants of the Township of ^ Newark in the County of Essex,” at the time of the passage of the said act, had, or of right ought to have had, in the same. By means whereof, “The Mayor and Common Council of the City of Newark” became and were vested, in fee simple, with a'l and singular the above-described premises contained in the said trust deed, and held the same, and of right and in discharge of their duty still ought to be vested with and hold the same, subject to the public trust and uses contained and declared in .the said trust deed.
    That the said mayor and common council, by indenture of lease, dated June 30th, 1836, demised to one IT I). Chandler for the term of ten years, or thereabouts, all that lot described in a certain lease from the mayor, aldermen and common council of the city of Newark to one John H. Stephens, to wit, all those tracts, pieces or parcels of land and premises in the city of Newark (describing them).
    That the said Chandler has assigned to John H. Stephens all the rigid; and interest which he had by virtue of the said lease, and that said Stephens now holds the said above-described property by virtue of the said lease and assignment.
    That the said mayor and common council, on or about. April 12th, 1844, executed to the said John EL Stephens a further lease of the said last-mentioned tracts, pieces or parcels of land, in the words and figures following, to wit, (setting out a lease of the said parcels of land to Stephens, for twenty years from May 1st, 1846, at $55 a year rent, in quarterly payments, with the privi lege of renewals, not exceeding sixty years, on terms stated in the lease, with a covenant for quiet enjoyment for twenty years.)
    That the premises described and embraced in the said leases and assignment of lease are part and parcel of the premises described and contained in the said trust deed.
    The bill charges that the execution of the said respective leases were breaches of trust; and that the premises thereby leased were diverted from the public and sacred uses to which they were subject in the hands of the lessors, respectively, and which were impressed upon them by the founders thereof, viz., by the grantors of and in the said trust deed. That the tenure by which the said leased premises were held by the mayor and common council of Newark was a matter of common repute, well known to the inhabitants of the said city; that it was not the intention of the legislature in any wise to vary the said public uses, or to deprive the cestuis que trust of any of their equitable rights and interests in and to the said premises, and that it was not within the competency of the legislature to divest or deprive them of such rights and interests; but that the same are protected and guaranteed by the constitution of the United States; and further, that no alienation or disposition of said premises could be made so as to prejudice the said public use, or otherwise than under the sanction of this court, in case an alienation, under peculiar circumstances, should be provident and advisable; and the proceeds of such alienation should be reinvested, subject to the like uses and for the benefit of the beneficiaries thereof.
    The bill charges that the lessees knew of the public use to which the said premises were subject; that at the dates of the respective leases there were a great many graves and tombstones on the said premises, and any person buying or leasing the same was thereby put upon inquiry, and must have discovered the purposes to which the said premises were devoted as above set forth.
    The bill prays that the premises embraced in the said leases may be declared and decreed to be subject.to the public, pious and charitable use for the burial of the dead, as is set forth in the bill, and as the same was impressed upon them by the said proprietors, the founders and grantors in said trust deed; and that the beneficial rights and interest of the complainant and of those in whose behalf the bill and information are exhibited, may be confirmed and established; that said leases may be set aside and canceled, and the .mayor and common council of the city of Newark be decreed to hold the said premises subject to the trusts, rights and interests as aforesaid ; or that, if it shall appear to the court more equitable and just that the said leases should be sustained, the rents which have accrued and shall hereafter accrue, be applied to the purposes of the said trust, under a scheme to be settled by a master of this court; that all proper accounts be taken, and the defendants be restrained from all further proceedings to the prejudice of the said trusts and the interests or rights of the eestuis que trust therein, and for further relief.
    Subpoena is prayed against “ The Mayor and Common Council of the City of Newark” and John JEL Stephens.
    The bill, is sworn to by Riehason Buckbee.
    A writing is annexed to the bill, stating that Van Burén Ryerson,.one of the relators, has given bond, with satisfactory security, for the payment of costs to the obligees therein named and defendants in the bill, if any, &c,, and had delivered -the bond to the attorney-general, and that ho consents that the bill may be filed at the costs of the said relators. Signed by R. P'„ Thompson, attorney-general.
    A copy of the deed from the proprietors is annexed to th© bill.
    The defendants-put in a joint and several plea, that by the fundamental constitutions for the Province of East New Jersey, and which the defendants aver remained‘in full force as the law of the land, established, granted, and declared by the four and twenty proprietors of New Jersey, in 1683, it was, among other things, granted and declared that 14 years quiet possession should give an unquestionable right to any lands, except in case of infants, lunatics, or married women, or persons beyond sea or in prison; and they say that the complainant was not, nor were any of the persons in whose behalf the bill is filed, or under whom they claim, infants, lunatics, married women, or persons beyond sea or in prison, during more than 14 years, to wit, from 1667 to 1695, that the land and premises in the information and bill set forth were held, as the defendants aver, in quiet possession by the first settlers of the tract of land now embraced within the bounds of the city of Newark and of the land and premises in said information and bill described, being part of the same, and they aver that the said old settlers, as tenants in common, did have quiet possession of the said premises 14 years, from 1667 to 1695, that the said premises were in 1667, and from that time until 1713, in the actual quiet possession of the first settlers of Newark, as tenants in common, until the said first settlers and their descendants were, by letters patent granted by Queen Anne,dated April 27th, 1713, incorporated by the name of “ The Trustees of the Freeholders and Inhabitants of the Township of Newark,” and the said “ The Trustees, &c.,” were and continued in actual quiet possession of said land and premises from 1713 until 1798, when the said "The Trustees, &c.” were, by act of the legislature of New Jersey, passed February 21st, 1798, incorporated by the name of “ The Inhabitants of the Township of Newark, in the County of Essex;” and the said “The Inhabitants, &c.,” from February 21st, 1798, were in actual possession of the said premises until February 29th, 1836, when, by an act of the legislature of New Jersey, the said “The Inhabitants of the Township of Newark,” were incorporated by the name of “ The Mayor and Common Council of the City of Newark; ” and the said “ The Mayor, &c.,” were, on the 29th of February, 1836, and ever since have been, and still are in the possession of the said premises ; and that the defendants are advised that this suit, and every claim and demand made therein, is barred by the said article in the fundamental constitutions of New Jersey; and thereupon they plead the said article in bar, and pray judgment whether they should be compelled to make any further answer to the bill.
    The plea was set down for argument.
    No counsel appeared in support of the plea.
    
      W. Halsted moved to overrule the plea.
    He said that if there was anything in the provision in the fundamental constitutions for the Province of New Jersey in reference to fourteen years’ quiet possession, it did not apply to this case; for the corporation of Newark subsequently accepted the trust and continued to hold under it. But there is nothing in that provision which can affect the case. No title could be acquired against the proprietors by fourteen years’ quiet possession. The plea does not allege confirmation by the proprietors. The proprietors put down all other titles, and no other than the proprietors’ title was ever recognized in this state.
    The plea is that the first settlers held the land in question from 1667 to 1695. Now, the grant from the proprietors, in trust for a burying place, was in 1696, showing that the proprisfors did not recognize any other title. The proprietors trace title to the first founders, under the grant from the Duke of York This is the tide under which all lands are held in New Jersey; no other title is recognized in this state.
    The plea does not state under whom possession was held. It may mean under the Indian title. But our legislature, in 1703 declared all Indian titles void. 1 Allison 1.
    The plea does not answer the bill. True, the mayor and common council are in possession, but the plea does not deny that they are in possession as trustees; that is the charge in the bill. A trustee may always say he is in possession.
    Again, our legislature, by an act passed February 15th, 1804, enacted that the trust estate vested in the said four trustees, by the said conveyance from the proprietors of December 10th, 1696, should be vested in The Inhabitants of the Township of Newark, in the County of Essex ; ” and this act provides, that the estate thereby vested in “ The Inhabitants of the Township of Newark,” as aforesaid, should be appropriated and forever remain to and for the uses in the original patent aforesaid expressed, and for no other use or uses whatsoever. This act was passed on the application of “ The Inhabitants of the Township of Newark, in the County of Essex,” and was accepted by them. They are estopped.
    The plea should have been accompanied by an answer, and the answer should have denied the charge of the acceptance of the trust under the act of the legislature. Story’s JEq. Pl.} § 674.
    The plea simply says they had possession, without denying (she trust.
   The Chancellor.

The plea will be overruled, and the defendants be ordered to answer.

Order accordingly.  