would not follow that he would retain it against cre- The weight of authority is, we think, the other way. The lien of the vendor, if in the nature of a trust, is a secret trust; and, although to be preferred to any other subsequent equal equity, unconnected with a legal advantage, or equitable advantage which gives a superior claim to the legal estate, will be postponed to a subsequent equal equity connected with such advantage. This principle is laid down in Hargrave and Butler's notes to Co. Lytt. 290. b. ; and the case of Stanhope v. Earl Verney, decided in Chancery in 1761, is quoted in support of it. That was the case of an equitable mortgage, founded on the deposit of a deed for a term of years to attend the inheritance, with a declaration of the trust. This is a much stronger case. It is an actual conveyance of the legal estate. In the United States the claims of creditors stand on high ground. There is not perhaps a State in the Union, the laws of which do not make all conveyances not recorded, and all secret trusts, void as to creditors as well as subsequent purchasers without notice. To support the secret lien of the vendor 1822. Browder V. M'Arthur. against a creditor who is a mortgagee, would be to counteract the spirit of these laws. Decree affirmed with costs. Feb. 21st. [PRACTICE.] BROWDER V. M'ARTHUR. This Court will not grant a rehearing in an equity cause, after it has been remitted to the Court below to carry into effect the decree of this Court, according to its mandate. Mr. Doddridge, for the appellant, Browder, moved for a rehearing in this cause, which is the same case that was determined at the last term, and remitted to the Court below to carry into effect the decree of this Court. It was now again brought before this Court, upon an appeal from the decree of the Court below, entered according to the mandate from this Court. The appellant's counsel now moved for a rehearing upon the merits. The COURT denied the motion, being of opinion that it was too late to grant a rehearing in a cause after it had been remitted to the Court below, to carry into effect the decree of this Court, according to its mandate; and that a subsequent appeal from the Circuit Court, for supposed error in carrying into a S. C. 6 Wheat. Rep. b He cited 2 Madd. Chan. 390. 3 P. Wms. 8. 2 Atk. 439. effect such mandate, brought up only the proceedings subsequent to the mandate, and did not authorize an inquiry into the merits of the original decree. Motion denied. 1822. Ricard V. Williams. [COMMON LAW. LOCAL LAW.] RICARD V. WILLIAMS and Others. Possession of land by a party, claiming it as his own in fee, is prima fa- But if the party be in under title, and by mistake of law supposes him- It is a general rule that a disseissor cannot qualify his own wrong, must be considered as a disseissor in fee, but But this rule is introduced only for the benefit of the disseissee, for the sake of electing his remedy. And it must also appear that the party found in possession entered without right; for if his entry were congeable, or his possession lawful, his entry and possession will be considered as limited by his right. Presumptions of a grant, arising from the lapse of time, are applied to corporeal, as well as incorporeal hereditaments. They may be encountered and rebutted by contrary presumptions, and can never arise where all the circumstances are perfectly consistent with the non-existence of a grant. A fortiori, they cannot arise where the claim is of such a nature as is at variance with the supposition of a grant. In general, the presumption of a grant is limited to periods analogous to those of the statute of limitations, in cases where the statute does not apply. Where the statute applies, the presumption is not generally resorted to: 1822. Ricard V. Williams. but if the circumstances of the case are very cogent, and require it, a grant may be presumed within a period short of the statute. Under the laws of Massachusetts and Connecticut, the power of an administrator to sell the real estate of his intestate, under an order of the Court of Probates, must be exercised within a reasonable time after the death of the intestate. The case of such a power to sell is not within the purview of the statute of limitations of Connecticut, which limits all rights of entry and action to fifteen years after the title accrues; but the reasonable time, within which the power must be exercised, is to be fixed by analogy to that statute. One heir, notwithstanding his entry as heir, may afterwards, by disseisin of his co-heirs, acquire an exclusive possession, upon which the statute will run both against his co-heirs and against creditors. An heir may claim an estate by title distinct or paramount to that of his ancestor; and if his possession is exclusive under such claim, against all other persons, until the statute period has run, he is entitled to the protection of the bar. ERROR to the Circuit Court of Connecticut. This was a suit instituted by the defendants in error against the plaintiff in error, in the Court below. The original action is commonly known in Connecticut by the name of an action of disseisin, and is a real action, final upon the rights of the parties, and in the nature of a real action at the common law. The cause was tried upon the general issue, nul tort, nal disseisin, and a verdict being found for the demandants, a bill of exceptions was taken to the opinion of the Court upon matters of law at the trial. The history of the case, as it stands upon the record, is in substance as follows. The demandants claimed the estate in controversy, by purchase from the administrator of William Dudley, at a sale made by him for the payment of the debts of his intestate, pursuant to the laws of Connecticut, which authorize a sale of the real estate of any person deceased, for the payment of his debts, when the personal assets are insufficient for that purpose. In order to establish the title of William Dudley in the premises, the demaudants proved that Thomas Dudley, the father of William, was, in his lifetime, possessed of the premises, as parcel of what were called the Dudley lands, and died possessed of the same in 1769, leaving seven children, of whom William was eldest, being of about the age of fourteen years, and Joseph Gerriel, the youngest, being about four years of age. Upon the death of his father, Joseph Mayhew, the guardian of William, entered into possession of the Dudley lands, and of the demanded premises as parcel, taking the rents and profits in his behalf during his minority; and upon his arrival of age, William entered and occupied the same, taking the rents and profits to his own use, until his death, which happened in the year 1786; all his brothers and sisters being then living. During the life of William, no other person claimed any right to enter or occupy the premises, except that his mother used to receive one-third of the rents and profits, until she died in the year 1783. During his life, and while in possession of the premises, William always declared that he held the same only for life, and therefore would not allow any improvements on them at his expense; no leases were made by him except for short periods; and no attempt was made by him to sell or convey the premises; and he declared that he had no right to sell them, and that upon his death they would descend to his son Joseph Dudley, under whom the tenant de 1822. Ricard V. Williams. |