
    Nicholson against Halsey and others.
    
      April 15th.
    Where the legal and equitable estates in land, being coextensive, unite in the same person, the equitable is merged in the legal estate, which descends according to the rules of law.
    Thus, if the legal estate in fee descend, esparte materna, and the equitable estate in fee, ex parle paterna, the equitable estate is merged in the legal, and both go in the line of descent of the legal estate.
    As where A. having paid money for the purchase of land, died before any conveyance was made, and B., afterwards, took a conveyance of the land, in trust, for the infant daughter of A., to whom he, afterwards, executed a deed in fee, she was held to have acquired the legal estate by purchaser and on her death, without issue, the estate descended to her brothers and sisters of the half-blood, to the exclusion of her paternal uncle.
    
    Where a deed has been duly executed and delivered, a subsequent surrender ’ or destruction ofit, will not devest the estate conveyed by it.
    
      THOMAS NICHOLSON, (the brother of the plaintiff, John,) and John Cantine, now deceased, made a joint location on 4,132 acres of land in the township of Chemung ; and before they obtained the patent, Nicholson died, the 4th of January, 1792. A patent was, afterwards, issued to Can-tine for the lot No. 122., containing 4,000 acres, one moiety of which he held as trustee for the heirs of Thomas Nicholson, deceased, who died intestate, without issue, leaving his wife Rebecca, enseint of a female child, born in May, 1792, and named Eliza Bradner. Before the 19th of November, 1792, Cantine, by an agreement with the widow, conveyed to her infant daughter, Eliza Bradner, in fee, two parcels of 1,640 acres, and 410 acres, making together about one half of the lot so held in trust by him. By the advice of John Nicholson, father of Thomas Nicholson, deceased, and of Benoni Bradner, father of his wife, and with her consent, the deed was given up to Cantine, and is lost or destroyed ; and, instead thereof, Cantine, on the 19th of November, 1792, conveyed to the infant daughter, in fee. for the consideration of 750 dollars, 1,640 acres, part of lot No. 122, in Chemung ; and on the same day conveyed to the widow 410 acres, parcel of the same lot, in fee, for the consideration 0f 250 dollars. The widow of T. N, deceased, intermarried with Z. Halsey, by whom she has had five children, all infants, and who are made defendants by their guardian. The infant daughter of T. N. died the 29th of January, 1811, intestate, and without issue, leaving the plaintiff, her eldest uncle, in the paternal line, and as he alleged in his bill, entitled by right to the inheritance of the said Eliza B., deceased. The plaintiff stated, that he apprehended that, in consequence of the irregular proceeding of Cantine, the plaintiff’s succession to the estate was impeded, and that the same may have descended at law to the children of Rebecca, by her second husband, being the brothers and sisters of the infant Eliza, deceased, of the half-blood. That Thomas Nicholson, in his lifetime, purchased of one Bell, lot No. 26., in Romulus, containing 600 acres, for which he paid 150 dollars, and took a conveyance in fee; that Bell having, afterwards sold the lot to Wm. Thompson, and a dispute arising between the infant Eliza and Thompson, as to the land, Thompson, for the consideration of 100 dollars, executed a release to her of all his claim to the lot. The plaintiff charged that the wife of T. N. received of the personal estate of her husband 1,500 dollars, a sum beyond all the property she brought on her marriage.
    The defendants, in their answers, alleged, that the lands in Chemung, and the lot in Romulus, were purchased with the proper money of Rebecca, the wife of T, Nicholson, advanced to her by her father, before her marriage, and not with the property of her husband, who left no estate, except a bond of 400 dollars; that the substituted deeds were given in order that she might have a part, and under a verbal promise of indemnity to Cantine ; and they insisted, that, notwithstanding those deeds, the infant daughter of T. N. continued seised in fee of the whole 2,050 acres, and that the inheritance descended wholly to her brothers and sisters of the half-blood. That two of the Onondaga commissioners, on the 10th of September, 1800, adjudged that the title in lot No. 24., in Romulus, was in the infant Eliza B. Nicholson. That lot was granted to one Sampson, a soldier, the 9th of July, 1790, who sold the lot to Thompson, the 14th of December, 1791, who released on the 2d of April, 1799, to the infant. That her father purchased the lot of one Bell, who obtained a conveyance from Sampson, dated the 26th of March, 1784, when Sampson was an infant, and under age; so that the title of Nicholson was not valid in law; and that B. Bradner purchased the title of Thompson, for the use of the infant, and obtained the award of the commissioners in her favour. That the debts of T. Nicholson, at his decease, greatly exceeded his estate, and that the widow had never received any thing for what she brought him on her marriage.
    
      Gold, for the plaintiff,
    contended, 1. That Thomas Nicholson, having paid for a moiety of the lot in Chemung, was entitled to a conveyance.; and, on the day of his death, was vested with an equitable estate in such moiety, subject to the same law of descents as a legal estate. (2 Powell on Cont. 56. 3 P. Wms. 211. 1 Eq. Cas. Abr. 175. pl. 5. 10 Mod. 515. 2 Vern. 679. 2 P. Wms. 629. 1 Vern. 298. 471.)
    2. That if moneys, as alleged, had been advanced to the wife of T. N. by her father, as her marriage portion, they were received by him, in virtue of his marital rights ; and, if vested in the lands in question, created no lien in favour of the widow, but the land descended to the heirs of the husband, as though the legal title had been vested in him at the time of purchase. (2 Powell on Cont. 93, 94. 2 Vern. 20. 322. Sugden’s Law of Vend. 427. 2 Eq. Cas. Ab. 138. pl. 5.)
    3. That the destruction of the deed to the infant, and the subsequent deeds, were unauthorized, and could not alter or change the nature of the intestate’s equitable estate, or prejudice the rights of the plaintiff as his heir.
    . 4. That the 100 dollars paid to Thompson, for his claim, qUjej. ^ie title, was not the consideration of an original purchase, and cannot affect the title of T. Nicholson, which, according to the evidence, was a valid legal title ; or if it were questioned, an issue should be directed to ascertain its validity at law.
    
      Henry, contra,
    contended, 1. That by the execution of the trust, the legal and equitable titles were united, and the trust merged in the legal estate : and, 2. That the court will not open the descent, so as to separate the legal and equitable estate, and alter the course of descent. This is an attempt, by a collateral relation, to deprive the half-blood of their right. The father did not die seised, for no legal estate had passed. The state could not be a trustee by implication. No person stood seised in trust for him. After his death the patent for the lot issued, and then Cantine became seised of the moiety in trust for the daughter, en ventre sa mere. The trustee conveyed this moiety, in fee, to the infant, the cestuy que trust. She was, then, seised in fee, and the fee could not be devested by the destruction of the deed, without her assent. The subsequent deeds were mere nullities. The trust was executed by the first conveyance, and the rights of the daughter were vested and fixed in her as & purchaser ; and having the estate as a purchaser, and not by descent or gift from her father, there could be no doubt on the case. (Cruiser's Dig. tit. Descent, ch. 3. s. 49, 50. Goodright v. Wells, Doug. 771 .)
    Admitting that the purchase money came from the maternal grandfather, yet the defendants would have the superior equity. If not, yet, as heirs, their equity was equal; and having the legal estate, this court will not disturb them. (2 Vernon. 578.)
    
      As to the lot in Romulus, the deed from Thompson was direct to Eliza B. Nicholson, who thereby became a purchaser. But if Thompson had no title which he could con- ■* vey, then she took by descent; and the plaintiff, having complete remedy at law, cannot come to this court for relief.
    
      Gold, in reply,
    insisted, that Cantine, having received the money, was a trustee in the lifetime of T. Nicholson, and that equities decend as real estates ; that the state could be a trustee, as where a contract was made with the land-office, and part of the purchase money paid before the patent issued; and a mandamus would lie to compel a conveyance on completing the payment. The equitable estate descended to the infant daughter of T. Nicholson, who was entitled to the deed from Cantine on no other ground than as the heir of her father. The case of Goodright v. Wells was distinguishable from the present. It is impossible to say that the estate is not derived from T. Nicholson. The case is, then, within the spirit and meaning of the fourth canon, in the statute of descents. (3 Cruise’s Dig. 401. tit. 29. c. 3. s. 54. 56, 57.) An equitable estate will be supported at law. (3 Johns. Rep. 216. Foote v. Colvin.)
    
    This court has jurisdiction in cases of lost or suppressed deeds ; and where the court has acquired jurisdiction for the purpose of discovery, or otherwise, it will retain the suit, in order to do complete justice between the parties, and to prevent useless litigation. (Coop. Eq. Pl. 28. 2 Johns. Cas. 424.)
    
      
       S. C. 3 Ves. jun. 339.
      
    
   The Chancellor.

This is*a claim to the inheritance made by the paternal uncle of Eliza B. Nicholson, against her brothers and sisters of the half-blood.

The statute of descents says, that brothers and sisters of the half blood shall inherit equally with those of the whole blood, unless the inheritance come by descent, devise, or gift, of some ancestor of the person dying seised, in which case all who are not of the blood of such ancestor are excluded.

Eliza B. Nicholson died in infancy, seised in fee of a . moiety of 4,000 acres of land in Chemung, and of the whole of lot No. 24., in Romulus,

The testimony is conclusive, that John Cantine, in his lifetime, conveyed to her the moiety of the Chemung lands. This conveyance was afterwards delivered back to Cantine by her mother, and new deeds taken to the infant and her mother, of the same lands, in separate and unequal portions. The first deed is supposed to have been destroyed after it was delivered up, and it cannot now be found. This subsequent surrender and destruction of that deed could not devest the infant of the estate of which she was seised under that deed, and she must have transmitted, by descent, her interest in the same, unimpaired, to her heirs at law. This is a clear and undeniable proposition; and as she is to be considered as having acquired the legal estate by purchase:, the question is, whether this court can now, in aid of the heir, ex parte paterna, take notice of the equitable title to those lands which she inherited from her father, and which was afterwards united with the legal estate by means of the conveyance from Cantine ? It may be laid down as a settled principle, that when the legal and equitable estates (being co-extensive) unite in the same person, the equitable estate is merged in the legal, and may be said no longer to exist for the purpose of being recognised and acted upon by this court. The legal estate is left to prevail according to the rules of law. The existence and truth of this principle has been frequently declared both in courts of law and equity. Thus, in Goodright v. Wells, (Doug. 771.,) it was acknowledged, that if the legal interest decend in fee, ex parte materna, and the equitable interest in fee, ex parte paterna, the equitable estate merges in the legal, and both follow the line through which the legal estate descends ; and the court held, that after such union, the legal and equitable estates should not open on the death of the person so seised, and be severed for the claim of different heirs. The judges said, there was no such case in law or equity, and there was no reason for it; for the moment both estates met in the same person, there was an end of the trust, as a man could not be a trustee for himself. And, to use the language of Lord Mansfield, “ why should the estates opén at his death ? What equity has one set of heirs more than the other ? The legal estate draws the trust after it, and the latter is not to be revived so as to make the heir at law of one denomination a trustee for the heir at law of another denomination, who would have taken the equitable estate, if that and the legal estate had not united. There is no room for chancery to interpose, and the rule of law must prevail.”

The case of Doe v. Putt, cited from the C. B., was considered, by the K. B., as having established the same doctrine, and to have ruled that the cestuy que trust, taking the legal estate from the trustee, as a purchaser, thereby altered the course of descent.

The principle advanced in the case from Douglas’ Rep. was afterwards sanctioned by Lord Thurlow, in Wade v. Paget, (1 Bro. 364.,) and by the Master of the Rolls, in Philips v. Brydges, (3 Ves. 126, 127.,) and again, in Selby v. Alston ; (3 Ves. 339.;) this last case arose on a bill by the paternal heir, claiming the estate as heir of the equitable title, against the heir on the maternal side, who was in possession, and claimed as the heir to the legal estate. The case is much in point, and presses strongly on the one before us. The court there held, that after the union of the equitable and legal estates in the same ancestor, the former was absorbed and gone; and the bill was dismissed because the paternal heir had no equity. .

The plaintiff, then, under the authority of these cases, and the principle which they so clearly and so rationally establish, was no claim to the assistance of the court in respect to the Chemung lands. There can be no doubt that the infant cestuy que trust, by means of tbe conveyance from Cantine, the trustee, took the legal estate as purchaser; and, consequently, if the legal and equitable estate, so united by that purchase, were not, afterwards, severed and revived by her own act, and cannot be considered as opening at her death, she must have transmitted the entire inheritance by descent to her brothers and sisters of the half-blood.

With respect to the military lot, a single observation appears to me to be sufficient.

If the title to the lot was in Thompson when; he conveyed to the infant, she .took as a purchaser, and the title descended to the defendants, as her heirs at law. But if the title was not in him, and had been previously acquired by her father, then she took by descent, and the plaintiff has a clear title at law, as her heir, to the exclusion of the half-blood, and there is no cause shown for calling in the extraordinary aid of this court. There is no allegation in the bill of any special ground for coming here to assert a dry legal title.

In every view which I have been able to take of this case, I think the plaintiff fails ; and his bill must be dismissed, with costs.

Bill dismissed.  