
    Jackson, ex dem Cadwallader R. Colden, against Walsh.
    NEW-YORK,
    October, 1817.
    A probate aoveiÍ rogate ‘of 5tbe of jym-York, m afte/the adopsent consStution. but whilst possession ofthe enemy, and the probate of which was granted by the deputy of the British governor, according to the practice under the colonial government, is valid, being confirmed by the act of the 10th of May, 1784, (I L. N Y. Greenl. ed. 121.) provided the same be recorded in the office of the judge of probates: and by an act of the 30th of March, 1799, the judge of the court of probates being required to deliver to the surrogate of New-York, all papers, records, fcc. appertaining to the court of probates on the first of May, 1787, except in certain particular cases; and as the custody of the record of the will in question belonged to”the surrogate of the city of New‘ York, by the last mentioned act, an exemplification of the record of such will, given by the surrogate of Ncw-York, accompanied with his certificate that the original will could not he found in his office, is sufficient evidence of such will, in enaction of ejectment, under the act concerning wills, (sess. 36. c. 23. s. 21. 1 N. R- L. 36s ) by which the exemplification of a record of a will recorded in the office of the judge of probates before the 1st of January, 1785, the original of xthich cannot be found in his office, or that of the surrogate of New- York, is allowed to be read in evidence, in lealor mixed actions.
    a trustee or a third person, the conveyance in such case is not void at law, and the legal estate passes by it; and although it is » rule in equity, that a trustee shall not purchase, yet such sale is not, ipso jure, void in a court of equity, but will only be set aside on the application Of the cestuy que trust, made within a reasonable time. A purchaser for a valuable consideration, without notice, has a good title, although.he purchased of one who obtained a conveyance by fraud.
    This was an action of ejectment brought to recover a lot of land, called No 31, being part of a lot of 100 acres, situate in the town of Newburgh. The cause came before the court on a bill of exceptions taken at the trial.
    The plaintiff made out a title in Cadwallader Colden, to the 1 » , lot of 100 acres, of which the premises m question are a part, and the title of the plaintiff, by descent from Cadwallader Col-was admitted. The defendant then save in evidence a cerp tificate of Silvanus Miller, Esquire, surrogate of the city and county of NewYork, under his seal of office, dated the 19 th of May, 1815, by which he certified, that the record of the will of Cadwallader Golden, Esquire, deceased, bearing date the 20th of May, 1775, and republished the 7th of August, 1776, remained in his office, and that- the original thereof could not be found in the said office, upon due and vigilant search ; all which is duly certified, according to the directions of an act of the legislature, entitled, an act concerning wills, passed March the 5th, 1813. The defendant’s counsel then gave in evidence an exemplification, under the seal of the surrogate of New-York, of the.record of the will, &c. which set forth the will, and republication, with •the proof, made by one of the witnesses to the will, as republished, on the 15th of March, 1779, before Cary Ludlowf surrogate for the city and county of NewYork; the certificate of Cary Ludlow, of.the same date, stating that Cadwallader Golden, and David Golden, two of the executors of Cadwallader Golden, the testator, had appeared before him, and were sworn to the true execution of the will, and a probate of the will granted by His Excellency William Try on, Esquire, governor of the province of NewYork, stating that the will was proved before Cary Ludlow, and allowing the same ; that as the deceased had goods, chattels, and credits, within the province oí New York, the proving and registering the will, and granting administration, belonged to him, the said governor, and granting the administration to Cadwallader Colden, and David Golden, two of the executors named in the will. The probate was dated on the á8th of April, 1779, and signed, “ by his excellency’s command, John Moore, deputy.’’ This proof was objected to, on the part of the plaintiff, but was admitted by the judge.
    The will of Cadwallader Golden contained a power, by which his executors, the survivor or survivors of them, were authorized to sell all, or any part of his lands ; and the testator appointed his sons Cadwallader and David, and his daughter Elizabeth, his executors and executrix. Cadwallader survived the other two executors, and died in February, 1797, but previously, by .deed dated the 11th oí August, 1795, conveyed the premises in question, with two other lots, $os. 34 and 42, being part of the pf |Q0 acres, as the sole surviving executor of Cadwallader 
      Golden, his father, for the consideration of 141/. to John Dubois, as the highest bidder at public auction, on the preceding 7th of November; and also, lot No. 7, being a small water lot. Duboh, by deed, of the same date as the one from Coldcn to him, re-conveyed the premises and the other lots, also, for the consideration of 141/ .to C. Colckn. Cadwallader Golden, the son, by a codicil to his will, ordered the residuary part of his real property to be sold by his executors, by virtue of which power, his surviving executors, by deed bearing date the 15th of April, 1798, conveyed the premises in question to Peter Gallation, in fee, who, on the 24ih of December, in the same year, conveyed them to Robert Gorman, in fee, who, by deed bearing date the 1st of May, 1806, conveyed the same to the defendant and his heirs. The counsel for the plaintiff insisted, that the deeds from Golden to Dubois, and from Dubois to Golden, were colourable and fraudulent, as regarded the heirs and devisees of Cadwallader Golden, the elder, and prayed that the question of fraud might be submitted to the jury; but the judge decided that, whether those deeds were fraudulent or not, a perfect title was conveyed to Cadwallader Golden, the son, so far as regarded a subsequent purchase, for valuable consideration. The plaintiff’s counsel also offered to produce other evidence as to the alleged fraud, but the judge decided, that such evidence was irrelevant, and that, whether Cadwallader Golden, the younger, was responsible as trustee beyond the consideration expressed in his deed to Dubois, was a question cognizable in equity only.-
    
      Burr, for the plaintiff.
    1. The probate of the will of C. Golden was not such as entitled it to be read in evidence under the statute. The act says, “ That the exemplification of the record of any last will and testament heretofore proved, and corded in the office of the judge of the court of probates in this state, before the 1st of January, 1785, the original of which, on due search, cannot be found, &c., shall be received and read in evidence, See. Cary Ludlow, before whom the probate was taken, was not a judge of the court of probate of this state. The mere probate of a will is not evidence without the statute. Courts of probate have no power as to wills in relation to real estates ? it is only in relation to wills of chattels, that the probate is evidence. A probate is but a copy of the will. In Arthur v. Arthur, it was held that an exemplification of a will under the seal of the prerogative court, the original being lost, .. _ . ", : was no£ admissible on evidence. It is true, that m collateral questions, as to prove a pedigree, where hearsay, or slight evidence, is admissible, the probate of a will may be received.
    Again, devisar it vel non, is always a question of fact for the jury to decide ; but here, the judge himself decided upon it.
    2. Cadwallader Colden, the.surviving executor and trustee, through, the intervention of Dubois, purchased the lands. The deeds from him to Dubois, and from Dubois to him, are, in respect to the heirs, fraudulent and void; and a court of law, as well as a court of equity, take cognizance of fraud.† A court or equity may have a dmerent or peculiar mode of giving relief, or detecting the fraud. But the fraud being once shown, the deed is void and inoperative at law, as well as in equity. A person who stands in the relation of trustee or agent, cannot purchase. This is the settled rule of the court of chancery.
    
    ml 1. .- . .. . There can be no question as to notice.§
    ,, . “A fraudulent estate,’ savs Coke, “ is as no estate m the ’ J ’ judgment of the law.”
    
    
      P. W. Radcliff, contra,
    1. The governor of the colony of New-York was vested with the powers of the prerogative court, which • he exercised by a delegate. The constitution of the state†† recognizes the existence of a court or judge of probates; and the act to organize the government of the state, passed the 16 th oí March, 1778; declares, that the judge of the court of probates shall be vested with the same powers, &c., as the. governor of the state, when a colony, possessed as judge of the prerogative court, or court of probates.‡‡
    act to May, 1784, declares, that all probates, &c., granted by any person or persons, residing in the southern district of the state, holding authority under the king of G. B. for that purpose, from and between the 15th of September, 1776, and the 25th of November, 1783, should be held valid. The 35th article of the constitution of the state, continues in force the acts of the colonial legislature, subject to such alterations and provisions as the legislature of the state should, from time to time, make ; and the colonial act on this subject was not altered or repealed until the 20th of February, 1787,
    
    
      Again ; by an act passed the 10th of March, 1797,
      
       the court of probates, after the 1st of June, 1798, was directed to be hoiden in the city of Albany, and all the papers, books, minutes, records, &c., appertaining to the court, were d irected to be removed from the city of New-York to the city of Albany. By an act passed the 30th of March, 1799, the judge of the court of probates was required to deliver to the surrogate of the city and county ofNew-York, all the papers, books,minutes, records, and documents, belonging to the court, on the lstof May, 1787, except the original wills of persons resident, at the time of their death, in the middle, eastern, and western districts of the state; and by an act passed the 31st of March, 1802, the expenses of removing these records, &c., was provided for and paid. The original will, then, ought, according to law, to have been in the office of the surrogate of the city and county of New-York •, and not being found there, after due and diligent search, the exemplification or probate of it, under the seal of the delegate or deputy of the governor of New-York, must, according to the provision of the act concerning wills, be received in evidence.
    2. A purchase by a trustee of the trust estate, is not absolutely void. None of the cases to be found in the English books go that length. It is true, the counsel for the appellant, in M’Kenzie v. The York Buildings Company, contended, that the sale and purchase by the common agent, was, ipso jure, void and null; that his office, ex vi termini, inferred a natural disability to become a purchaser; that this was a principle of universal law, founded in the very nature and constitution of civil society. But Lord Rosslyn, in Whichcote v. Lawrence,
      
       speaking of McKenzie’s case, says, that was not the real sense of the proposition ; but it was this, that he who undertaltes to act for another in any matter, shall not, in the s,atne matter, act for himself; and, therefore shall not gain any advantage by being himself the person to buy. In Fox v. Mackreth,
      
       Lord Thurlow affirmed the decree of the master of the rolls, {Kenyon,) by which Mackreth was held to be a trustee of all the estates purchased by him, for Fox, the plaintiff. The rule is to order a resale, and if the property sells for more, the cestuy que trust takes the surplus, otherwise the original sale stands. The purchaser or vendor, in such case, becomes a trustee, and has the legal estate, which he holds in trust for the cestuy que trust. In Campbell v. Walker, the master of the rolls, (Lord Alvanley,) said there was no general rule that a trustee to sell could not be the purchaser, but he will purchase subject to the equity, that if the cestuy que trust comes,, within a reasonable time, and asks to have the sale, however fair, set aside, the estate shall be resold ; and, in the case ex parte Reynolds,
      
       Lord Eldon ordered the estates to be resold, and if they did not sell for more, the vendee should be held to his purchase. The purchase was set aside, conditionally, only in case the future sale should produce more. The cases ex parte Hughes, ex parte Lyon, and Lister v. Lister, were decided on the same principle. It is in the option of the cestuy que trust to have a resale or not; and if he does not elect to have a resale, the sale stands good. In Sanderson v. Walker,
      
       the case of Campbell v. Walker, came again under consideration, and Lord Eldon confirmed the rule laid down by Lord Ahanley. The case ex-parte Bennet, is a strong case to, show Kow far a court of equity will go, in holding the trustee to account; but it does not affect the doctrine, that the legal estate remains in the trustee, subject to the liability of a resale.X General Harris, who had acquired the legal estate, was ordered to reconvey.
    The same principle has been recognized and laid down in our courts. In Munro v. Allaire,
      
       Benson, J. who delivered the opinion of the court, does not state the rule broadly and absolutely, that a trustee can never be a purchaser ; but he distinguishes the cases, and says, that unless the .cestuy que trust interposes to disturb the sale, it will stand. In Sheldon v. Sheldon,
      
       the chief justice, in delivering the opinion of the court, denies the rule to be, that where a trustee becomes a purchaser, the sale is, ipso jure, void. Soj in Jackson, ex dem M’Carty, v. Vandalfsen,
       the chief justice said it was not a matter of course for chancery to interfere and set aside the purchase, as against the agent himself, and the purchase would stand, if the cestuy que trust chose to agree to the sale.
    [Thompson, Ch. J. You need not enter into a discussion .of the doctrine of a court of equity. The only inquiry for this court is, who has the legal estate. The doctrine of trusts is of peculiar equity jurisdiction. Courts of law take notice of actual fraud : but -these technical or constructive frauds are of equity cognizance.]
    If this court could set aside the sale, the party is too late for
    ■’ 1 1 , that purpose He must come within a reasonable time
    
    
      The effect of notice on the face of a deed, or as to the construction of a statute, belong equally to a court of law; but where it relates to a court of equity merely, or a constructive fraud, it is exclusively for a trust of chancery, and the case of Jackson, ex dem Gilbert, v. Burgott,
      
       admits, that in the case of a bona fide purchaser, without notice of the fraud, his title is not affected by the fraud of his vendor. As between the parties to the conveyance, it may be avoided on the ground of fraud, but not so, where a third person has purchased, without knowledge of the fraud.
    
    
      
       1 R f-
    
    
      
       /?«/». 154. 733„ 6 SdVc,
      
    
    
      
       YsroB>.
    
    
      
      
        Ex parte Bennet, 10 Ves. 381. 401. M'Kenzie v. York Buildings, 8 Bro. P. C. 42.
      
    
    
      
       f 3 Co. 77.
    
    
      
      
         Brad. ed. of Laws, Vtih act. llln, Xfov 1692. 1 Van Scfiaick's ed. Laws, 14. Artie. 27.35.
    
    
      
      
         1 Greenh td. Laws, 18. sess. 1. «h. 12. s 3.
    
    
      
       1 Greenl. ed. Lam, 119. sets. 7. ch. 59. s. 4.
    
    
      
       1 Grecnled* Laws. 368. sess. iü.. ch. 38. s.2Ue
    
    
      
      
         Lam, 39 seas! 20, ch 31.
    
    
      
       22. Seis, c>.
    
    
      
       íw.r.í.364. In' sess‘3S'cil"
    
    
      
      
         P c iS-6a-
    
    
      
       n 3 risen, 740 758‘
    
    
      
      
         2 a-,- ch, 4°°'
    
    
      
       5 m®, 3m‘
      
    
    
      
       5 Vesey, fan. 707.
    
    
      
       6 Vcsty, fan, 617 633.
    
    
      
       13 Vesey, 60.
    
    
      
      
         5 Vesey, 678.
    
    
      
       10 Vesey. 381.
    
    
      
      
         2 Caines’Cas. in Error, 183. 192.
    
    
      
      
        iSJofttis. Rep. 320.
    
    
      
       5 Johns. Rep. 42. 43.
    
    
      
      
        Whichcote S'Ugdcn's L. of V. 551' 662‘ Ber’ VUi. a U4- .Dor” gm v semieit. i Caines' Cases in En or, 20.
    
    
      
       in Jokm. Hep.
      
    
   Thompson, Ch. J.

delivered the opinion of the court. It is not denied that the lessor of the plaintiff has shown title to the premises in question, by descent, from Cadwallader Golden, and is entitled to recover, unless the defendant has made out a title derived from Cadwallader Golden. The first question that arises, on the part of the defence, is, as to the sufficiency of the proof of C. Colden's will. This proof consists of a certificate given by the Surrogate of New-York, under the 21st section of the act concerning wills, (l N. R. L, 368.) accompanied with an exemplification of the record of the will. It is admitted that the certificate and exemplification are sufficient, if the act applies to a case like the present.

The act declares, that, the exemplification of the record of any last w'ill and testament, heretofore proved, and recorded in the office of the judge of the court of probate, before the 1st of January, 1785, the original of which cannot be found in the office of the said judge of the court of probate, or of the surrogate of the city of Nem-York, shall be received and read in evidence. The objection made to the proof is, that the will in question does not appear to have been proved before the judge of probates, as the act would seem to require, but before Cary Ludlow, surrogate of the city and county of New-York, on the -15th of March, 1779.

This was after the adoption of our constitution, and the appointment of a judge of probates, and during the revolutionary war, and whilst the enemy was in possession of JVew-Yorlc. The probate of the will purports to have been granted by John Moore, styling himself deputy of Governor Tryon, which was according to the practice of that day, under the colonial act of the 11th of November, 1692, which directed that the probate of all wills, should be granted by the governor, or such person as sha]j delegate, under the seal of the prerogative office, for that purpose appointed. It is, therefore, very evident that this will was duly proved and recorded, according to the practice under the colonial government. By an act of the 10th of May, 1784,(1 Greenleaf’se d. t21. s.4 ) the proof of wills, and granting of letters testamentary, under circumstances like the present, are confirmed. It declares, that all probates or letters testamentary, issued or granted by any person in the southern district, under the authority of the King of Great Bntcin, between the 15 th of September, 1776, and the 25th of November, 1783, are confirmed and made valid to all intents, constructions, and purposes whatsoever, in like manner as if the said probates or letters testamentary had been granted or issued by an officer acting under the authority of this state ; provided, the original wills, probates, and letters testamentary, be recorded in the probale office of this state, as in other cases where wills have been proved according to law. The certificate and exemplification in this case, are from the surrogate of New-York, and he is the person who, by law, has the custody of the record in this case, and in whose office the original will would, by law, be found, if at all, on file. By an act of the 30th of March, 1799, the judge of the court of probates is required to deliver to the surrogate of New-York, to remain and be kept in his office, all the papers, books, minutes, records, and documents, appertaining to the court of probates, on the first day of May, in the year 1787, except the original wills of persons who were resident in the middle, eastern, and western districts. From this view of the several statutes, in relation to this subject, it is evident that the surrogate of New-York is the person who, by law, has the custody of the record of this will, and who alone can give the certificate and exemplification authorized by the statute, and which is made competent evidence of the original will. The will of Cadwallader Colden, therefore, was duly and sufficiently proved.

It is not denied, on the part of the plaintiff, but that a regular paper title was made out, under this will, down to the defendant It appears, however, that Cadwallader Colden, the second, as surviving executor of that will, on the 1 i th of August, 1795, conveyed the premises in question, to John Dubohwho, on the Same day, reconveyed them to C. Colden, It is contended, that Dubois was a mere nominal purchaser, and the sale void, under the rule which prevails in the court of chancery, that a trustee or agent to sell, shall not himself become the purchaser *4 It is unnecessary for me to go into an examination of the equity doctrine on this subject. No case is to be found where a court of law has pronounced such a deed absolutely void. The legal title undoubtedly passes, and the rules and principles which govern the court of chancery in such cases, show! that it would be very unfit for a court of law to interfere and set aside such conveyances. (2 Johns. Rep. 226.) Indeed, it is not the doctrine of a court of equity, that such sales are, ipso jure, void; but, that the trustee purchases subject to the equity of having the sale set aside, if the cestuy que trust, in a reasonable time, chooses to say he is not satisfied with it. There has been a lapse of nearly twenty years since the purchase, and it may be questionable, whether a court of chancery would at all listen to an application to set aside the sale. If this sale is to be set aside, it is on the ground of fraudpfand there is nothing in the case to charge the defendant with notice of the fraud. It has been a long and well settled principle, that a purchaser for a valuable consideration without notice, has a good title, though he purchase of one who had obtained the conveyance by frand. (5 Johns. Rep. 48. 10 Johns. Rep. 197. 13 Johns. Rep. 222. and note. 1 Johns. Ch. Rep. 533.) So that in whatever point of light this case is viewed, the plaintiff must fail.

Judgment for the defendant.. 
      
       Vide Davoue v. Fanning, 3 Johns. Ch. Cases, 252. 270.
     
      
      
        Mm. Rep. 457. 4 Ros. and puii. 334.
     
      
       13 Vesty, 120. sugden, l. of
      
     