Mr Justice Story
delivered the opinion of the Court.
Many of the questions which have been discussed in this
case arose in the suit of Carver v. Jackson, ex dem. of Astor et al., 4 Peters’s Rep. 1; which was founded upon the same title, and substantially upon the same evidence as is presented in the present record. As upon a deliberate review we are entirely satisfied with the opinion and judgment pronounced on that occasion (which was indeed most thoroughly and anxiously considered), we do not propose. to go at large into the reasoning now; but to confine ourselves to the new grounds of argument, which have been so earnestly pressed upon the court, and to the instructions prayed and refused, or given by the circuit court to the prejudice of the plaintiff in error.
In the progress'of the cause, after the plaintiff had given the evidence in support of his cause, the counsel for the defendant; insisted, “ that unless the deed, called the marriage settlement deed, which was given in evidence, was accompanied or preceded by a lease, the plaintiff could not recover in this action; that without a lease, the said deed could only opérate as a bargain and sale, and the statute of uses could only execute, the first use to the bargainees, Johanna Philipse and Beverley Robinson, who took the legal estate in the land, and that the plaintiff could not recover without producing the lease, or accounting for its non-production. And because no lease had been produced, and no evidence given to account for its non-production, the counsel for the defendant moved the circuit court to nonsuit the plaintiff; but the circuit court overruled the objection, and refused to grant the motion for a nonsuit; and decided that the plaintiff was entitled to recover without producing any lease, or accounting for its non-production, inasmuch as the recital in the release was evidence of such a lease having been executed;” to which opinion and decision the defendant excepted. This constitutes the subject matter of the first ground, now assigned for error on behalf of the defendant before this court.
It might be a sufficient answer to the motion for a nonsuit) to declare that the circuit court had no authority whatsoever to order a peremptory nonsuit against the will of the plaintiff. This point has been repeatedly settled by this court, and is not now open for controversy. Doe d. Elmore v. Grymes, 1 Peters, 469. D’Wolf v. Rabaud, 5 Peters, 476. But independent of this ground, which would be conclusive, there
is another which seems equally so; and that is, that it called upon the court to decide upon the nature and. effect of the whole evidence introduced in support of the plaintiff’s case, part of which was necessarily of a presumptive nature, and capable of being urged with more or less effect to the jury. It is to be recollected that the marriage settlement deed was dated and purported to be executed in January 1758, and was designed to operate as a conveyance by way of lease, and release, and the sole object of the lease was to give effect to the release, as a common law conveyance, and not as a mere bargain and sale. . It stated,
“
that in consideration of a marriage intended to be had and solemnized between the said Roger Morris and. Mary Philipse (two of the parties to the indenture), and the settlement hereafter made by the said Roger Morris on the said Mary Philipse, and for and in consideration of the sum of five shillings, &c. &c., the said Mary Philipse hath granted, &c.' and by these presents doth grant, &c. unto the said Johanna Philipse and Beverley Robinson (the trustees under the settlement), in
their actual possession, now being by virtue of a bargain and sale to them thereof, made for one whole year, by indenture bearing date the day next before the day of the date of these presents, and by force of the statute for transferring of uses into possession,
and to their heirs, all those several lots, *&c. &e.” The recital, therefore, explicitly admits the existence of the lease and th.e possession under it, and bound the parties, as well as those who as privies claim under them. It will be recollected also, that the trial of the present case was in June 1830, upwards of seventy years after the date of the lease, which was confessedly an instrument of a fugitive and témporary nature, and intended to serve merely as a means of giving full operation to the release. Under such circumstances, if no other objection existed to the title, the lapse of time would alone be sufficient to justify a presumption of its due execution and loss, and non-production by the plaintiff, proper to be Iqft to the jury; and thus justify the court in refusing a nonsuit. In the case of Carver v. Jackson, this court observed that such a recital of a lease in a rélease, may, under circumstances, be used as evidence even against strangers. Thus,
“
if the existence and loss of the lease be established by other evidence, then the
recital is admissible as secondary proof in the absence of more perfect evidence, to establish the contents of the lease. And if the transaction be an ancient one, and the possession has been long held under such release and is not otherwise to be accounted for, then the recital will, of itself, under such circumstances, materially fortify the presumption, from lapse of time and length of possession, of the original existence of the lease. ” In the present case there was prima facie evidence of the due execution of the release, and evidence also of a possession by Morris and his wife of the premises in controversy for many years afterwards, consistent with, if-not necessarily flowing from that instrument. Under such circumstances it would have been unjustifiable on the part of the circuit court to have directed a nonsuit, the effect of which would have been' to have excluded the. jury from weighing the-whole evi denee, even if the case, had been against a party who was a stranger to the title.
But the defendant is in no just sense a stranger to the title. He claims in privity of estate by a title derived from the state of New York, whose sole title is founded upon that of Morris and his wife, and is subsequent to the release. The general rule of law is, that a recital of one deed in another, binds the parties, and those who claim under them by matters subsequent. Technically speaking, such a recital operates as an estoppel, which works on the interest of the land, and binds parties and privies; privies in blood, privies in estate and privies in law. Between such parties, the original lease need not at any time be produced. The recital of it in the release, is conclusive. .It is not offered as secondary, but as primary proof; not as presumptive evidence, but as evidence operating by way of estoppel, rvhich cannot be averred against, and forms a muniment of the title. It is otherwise where the recital is offered against strangers claiming by an adverse title, or by persons-claiming from the same parties by a title anterior and paramount. In such cases the lease itself is the primary evidence; ancl its loss or non-production must be accounted for before the recital can be let in as secondary evidence of its ex-ecütion or contents. But even here (as has been already intimated), a long lapse of time furnishes a reasonable presumption of the loss. The argument of the bar is, that the recital.
may be
conclusive of the existence of the lease in favour of the lessees, but not for or against any other persons claiming under them by distinct conveyances. If the recital be conclusive in favour of the lessees, it must be equally conclusive in their favour as releasees, since the.latter works upon the possession acquired under the lease. But in truth, the recital as an estoppel binds all privies, where claiming by the same or by a- distinct instrument. .It is the privity which constitutes the bar, and not the fact of taking by the very deed which contains the recital.' It is also said that the recital of a lease in a release, is competent evidence to prove that the lease was originally
executed;
but not until its non-production is accounted for, competent evidence of the contents of the lease. If the recital of a lease be admitted to be good evidence of the execution, it must be good evidence of the execution of the very lease stated in the recital, and of the contents, so far as they are stated therein, for they constitute its identity. But the argument itself, can apply only where the recital is offered as secondary evidence. In the present case it is offered, not as secondary, but as primary and conclusive.
This whole subject underwent a more elaborate consideration of this court in the case of Carver v. Jackson, and the doctrine now asserted, was reasoned out, both upon principle and authority. The language of the court upon that occasion was, “ we are of opinion,, not only that the recital of the lease in the deed of marriage settlement was evidence between these parties (and the present defendant is in a similar predicament), of the original existence of the lease, but that it was conclusive evidence between these parties, of that original existence; and superseded the necessity of.introducing any other evidence to establish it.” And after a review of the authorities, it was added, “we think then, that' upon authority, the recital of the lease in the deed of release, in the present case, Was conclusive evidence upon all persons claiming under the parties in privity of estate, as the present defendant in ejectment does claim. And independently of authority, we should have arrived at the same result upon principle; for the recital constitutes a part of the title, and
establishes a possession under the lease
necessary to give the release its intended operation. It works upon the interest in the land, and creates an
estoppel, which runs with the-land against all persons in privity under the releasees. It was as much a muniment of the title, as any covenant therein running with the land.” And it was then added,
“
this view of the matter dispenses with the necessity of examining all the other exceptions as to the nature and sufficiency of the proof of the original existence and loss of. the lease, and of the secondary evidence to supply its place.”
In every view of the matter, then, the non-suit was properly denied.
The next error assigned grows out of an instruction to the jury, Risked of the courts by the counsel for the plaintiff. The prayer was, “ that Roger Morris stood in the' character of a grantee in the deed (the settlement), and that a possession of the deed by him is evidence of its delivery, because the settlement gave him a larger interest in the lands, than his mere marital rights.” The court refused to give this instruction, • and.declared that, “.strictly speaking, Morris could neither be considered as grantor-or grantee in the settlement deed, and therefore the mere possession of the deed by him was no affirmative proof on either side, as to the fact of delivery-;” to which opinion and decision the counsel for the defendant excepted. It is somewhat singular that' the defendant' should have excepted to the refusal to grant the prayer asked by the plaintiff, since the remarks made by the court seem to have been rather reasons for the refusal, thaii an instruction to the jury; and if those reasons were not well founded, it was no prejudice to the defendant. But waving this consideration, let us see if the circuit court was wrong in stating that, strictly speaking, Morrie could neither be considered as grantor or grantee in the settlement. The plaintiff contended that he was exclusively grantee, and the defendant’s counsel now contend that he was exclusively grantor. This is a point which must be decided by an examination of the terms of the settlement deed. That a husband, even before marriage, may, in virtue of the marriage contract have inchoate rights in the estate of his wife, which, if the marriage' is comsummated,. will be protected by a court of equity against any antecedent contracts and conveyances secretly made by the wife in fraud of those marital rights, may be admitted; but they are mere
equities, and in no just sense constitute any legal or equitable estate in her lands or other property antecedent to the marriage. In the present settlement deed, which is by indenture tripartite, Mary Philipse purports to be the party of the first part, Roger Morris of the second part, and Johanna Philipse and Beverley Robinson (the trustees) of the third part. Mary Philipse alone, without any co-operation, on the part of Morris, purports to grant, and does grant to the trustees, all the land mentioned in the deed (including the premises in controversy) as her own property, upon certain uses specified in the habendum, and among others after the marriage, to the use of herself and her husband during their joint lives and the life of the survivor of them, with certain subsequent uses and powers, not material to be mentioned. If the settlement deed stopped here, the ease would be too plain to admit of doubt. Mary Philipse must, in law, be deemed the sole grantor of the lands, and the trustees and Morris must be deemed grantees, and to take in that eharacte exclusively. In the close of the indenture is the following clause: “ and the said Roger Morris, for and in consideration of the premises, and the sum of five shillings, &c., doth hereby for himself, his heirs, executors and administrators, covenant, promise, grant and agree, to and with.the said Johanna Philipse. and Beverley Robinson, their and each of their heirs, &c. &e. that in case the said Mary Philipse shall survive him, the said Roger Morris, that then, and in such case,
immediately after his death,
all and singular
the moneys and._personal estate
whatsoever,
whereof he shall die possessed,
shall be accounted the proper money and estate of the said Mary Philipse during her natural life, and after her decease, in case there be no issue begotten between the said Roger Morris and Mary Philipse, that then the said moneys and personal, estate shall and may be had and taken by the executors and administrators of the said Roger Morris, &c.; but if such child or children shall survive the said Roger Morris and Mary Philipse, then the said moneys and estate to be divided among them in such shares and proportions as he, the said Roger Morris, shall think fit at anytime hereafter, by his.last will and testament, or otherwise, to order and direct.” It is obvious from the language of this clause, that it can operate only by
vtay
of. covenant. It conveys no present interest in
any personal property whatsoever; and affects to dispose only of the moneys and personal estate of which Morris shall die possessed, at whatever time they may have been acquired. It leaves him at full liberty to dispose of all the personalty that he shall at any time possess during his life time, toties quoties. As a grant, it would be utterly void from its uncertainty. As a covenant, it has a sensible and just operation in favour of the trustees. In legal contemplation, then, this clause makes Morris, strictly speaking, only a covenantor, and not a grantor. But as to the real estate passed to the trustees by the indenture, to which alone the instruction could properly apply, he was clearly a mere grantee. If, therefore, there was any error in the circuit court on this point, it was not an error prejudicial to the defendant, but to the plaintiff, as to its bearing on the question of the possession and delivery of the settlement deed. But looking to the whole provisions of that deed, it might well be stated; that strictly speaking, Morris could neither be considered as grantor or grantee. He was not grantor in any sense, except as to the personalty, and as to that, he was properly a covenantor. And, technically speaking, at the time of the execution of the deed, the trustees were the grantees :n the deed, though by the operation of the statute- of uses, the use to Morris, carved out of their seisin, drew to it the seisin and possession of the estate, as soon as that use, by his subsequent marriage, had a legal existence. Under such circumstances, the direction that the mere possession of the deed by Morris was no affirmative proof, on either side, of the fact of. the delivery, was at least as favourable to-'the defendants as thp law would justify; and consequently, he has nothing'to complain of.
Wé now come to the instructions asked of the court by the counsel for the defendant. And, in the first place, it is- argued, that the court erred in refusing to instruct the jury that “ the evidence arising from the proof of the deed of William Livingston in 1787, is no stronger than that arising from the proof of the hand-writing ánd-death'of the subscribing witnesses.” But this instruction, so asked, is not upon' any matter of law, but upon the mere weight of evidence, which the court was not bound to give, and which, was matter for the .proper consideration of the jury. But if it had been
otherwise, we are not prepared to admit that the instruction ought to have been given. The solemn probate of a deed by a witness upon oath before a magistrate, for the purpose of having it recorded, and the certificate of the magistrate of its due probate upon such testimony, are certainly entitled to more weight as evidence, than the mere unexplained proof of the hand-writing of a witness after his death. The one affords only a presumption of the due execution of the deed from the mere fact, that the signature of th'e witness is to the attestation clause; the other is a deliberate affirmation by the witness, upon oath, before a competent tribunal, of the material facts to prove the execution. And there were, in the present case, circumstances which gave an enhanced value and weight to this probate.
In the next place, it is argued that the court erred in refusing to give the instruction, “ that in the absence of all proof, that the trustees, or any person for them, ever had the deed, and there being no proof of a holding under it, the fact that the deed, came out of the hands of Morris in 1787, is sufficient, of itself; to rebut any presumption'of a delivery arising from the proof of the deed by William Livingston, or the proof of the hand-writing and death of the subscribing witnesses.” This instruction plainly called upon the court to decide mere matters of fact, which were in controversy before the jury, and upon the assumption of such matters of fact to direct the jury that they rebutted Other matters of fact. It was' no part of the duty of the court to decide upon the relative weight and force of these facts. They exclusively belonged to the jury; and the instruction was properly refused.
Thé same answer may be given to the refusal to give the instructions prayed for in all the various branches embraced in the fourth instruction of the defendant. They are as, follows: 1.
u
If the jury, upon the evidence, believe that the deed was signed and sealed on the day of its date, and that William Livingston and Sarah Williams witnessed what took pláce at that time, and that the deed was not delivered before the execution of .the Beekman deed, on the 18th of January 1758, then there is no evidence of a delivery.” 2.
“
It being conceded by the plaintiff’s counsel, that the deed was not delivered at the time of the execution of the Beekman deed, on
the 18th of January 1758, then if the jury believe the deed was signed, sealed and witnessed on the day it bears date, there is no evidence- of a delivery.” 3. “ If the jury believe the deed was not delivered on the day it was. signed, sealed and witnessed, then there is no evidence of a delivery.”
The supposed concession by the plaintiff’s counsel, was utterly denied by'them at the. time; and of course was properly deemed by the court as out of the case. The whole scope of all these instructions was to call upon the court to decide, as matter of law, upon the evidence before the jury, what portion of it was or was not proof of a delivery of the deed, and how far certain supposed facts controlled or might control the effect of all the other evidence upon the same point. There was positive evidence before the jury of the delivery of the deed, from the probate of it by Governor Livingston before Judge Hobart. How then could the court be called upon to say, that there was no evidence? The circumstances alluded to, and hypothetically put in the instructions, were certainly proper to be left to the jury, if found by them to.be true, to rebut this evidence. They were matter for comment and argument to the jury, by counsel, upon this vital question in the cause. But the court had no right, to say, that they would, or ought to overcome all other evidence in the case of the delivery of the deed. The jury were not to be told as matter of law, that if they found or believed one fact, there was no evidence of another independent fact; or because the deed was not .delivered on a particular day, therefore thére was no evidence of a delivery at all. They were to judge of the fact of delivery from all the circumstances of the case. It was their exclusive province; and it was no part of the duty of the court to instruct them, however it might advise 'them, in respect to the weight of conflicting evidence, or the inferences which they should deduce from one fact to decide their belief of another. These instructions were, therefore, properly refused; and, indeed, some of them are open to even more serious objections, as logical deductions upon mere matters of fact. The conclusions do not necessarily flow from the premises.
The next objection is, that the court refused to instruct the. jury that,'“ in judging of the acts said to be hostile to the settlement deed, if they may determine with what intent these
acts were done, they must gather that intent from the acts themselves.” The refusal was not unqualified, for the court gave the instruction with the addition of the words “ connected with the other evidence in the cause.”
In our opinion, the instruction, without the qualification, was properly refused. In cases where the interests of third persons' may be affected by the acts of others — where, as in the present case, the rights of children are to be affected by the acts of parents, it is most material to ascertain the intent with which these acts were done. The intent may restrain, enlarge or explain the acts, so as to change their whole effect in point of evidence. The acts done with one intent may press strongly in point of presumption one way;' with another intent, they may afford an equally cogent presumption the other way. How is this intent to be ascertained? It may, indeed, accompany and qualify the acts; but it may, on the other hand, arise and be exclusively provable by extrinsic circumstances. Are these extrinsic circumstances to be shut out from the cause, if they are the sole means of demonstrating the intent? If not, upon what ground are they to be excluded, when they may confirm or qualify or repel any inferences of intent deducidle, ordinarily, from the acts standing alone? No rule of evidence exists, which, in our judgment, could justify such a proceeding; and no authority has bpen cited, at the bar, in favour of its adoption. One of the grounds of argument at the bar is, that , the hostile acts relied on arose from the execution of certain deeds pf lease and release, the intent of which might be gathered from the contents of the writings. But the question was not what were the' contents of these deeds, as mátters of legal construction, but what was- the intent with wrhich they- were made; or rather what.was the estate out of which Morris and wife' (the grantors) intended to- carve them. Were they designed to be an execution of the powers and authority under the settlement deed? Gr, if an excess of these powers, were they intended not .to be hostile to the interests conferred by that deed? Or were they solely, and designedly an exercise-of the general rights of husband and wife over the estate of the latter, .unfettered by any settlement? Their direct operation was not in' controversy. They were introduced for a collateral purpose, as matters of presumption against the validity of the settle
ment deed as an executed conveyance. The intent, then, was open to proof as matter in pais; and all the evidence, legally conducing to establish it, was to be-considered by the jury in connexion. But the instruction does- not allude to any deeds whatsoever. It is in the most general terms and speaks of acts which may as properly refer to any other thing, done in pais, as to solemn conveyances. This subject was discussed very much at large in Carver v. Jackson, and the result to which the court arrived, was precisely the same as is now indicated.
The next objection is, that the court refused to instruct the jury, that “-although the deeds to Hill, Merrit, and Rhodes would in law be a good execution of the power contained in the settlement deed, supposing that to have been duly delivered; yet upon the question, whether that deed was or was not perfected by a delivery, these deeds contain evidence that the parties were acting as owners of the land in fee, and not as tenants for life executing a power.” But the court gave the following instruction, that “although the deeds to Hill, Merrit and Rhodes wpuld in law be a good execution of the power contained in the settlement deed, supposing that to have been delivered, yet upon the question whether that deed was or was not perfected by delivery, those deeds are competent evidence from which the jury may judge whether Morris and his wife intended to act as if no marriage settlement had been executed, or under the power contained in the marriage settlement.” To this instruction, so given, the defendant also excepted. The sole object of introducing the deeds to Hill, Merrit and Rhodes here referred to, (which were introduced on the part of the defendant) was to raise a presumption against the delivery of the settlement deed. The argument seems to have been, that although those deeds might have been a fit and good execution of the power reserved to Morris and his wife by the settlement deed, yet the omission to make any reference to that power, or to state in those deeds that they were acting under arid in virtue of a power, was evidence that they were acting, not under any power, but as owners of the fee. If they were acting as owners of the fee, then that circumstance afforded, pro tanto, a presumption against the delivery of the settlement deed; since parties acting under and entitled to
acé
solely under the power in that deed, would naturally refer to it as the foundation of their conveyances. Now, so far as the presumption would go, it was fairly and fúlly left to the jury as evidence, .by the very instruction given to the court.
But the instruction which was refused, called upon the court to go farther, and to decide as matter of law, that the parties were in fact acting as owners of the land in fee, and not as tenants for life, executing a power. Surely, it will not be pretended that in order to a due execution of a power,, it is necessary that it should be recited or referred, to in the executing instrument of conveyance. The form of the instruction prayed for admits thiá. It is sufficient that the power exists, and is intended to be executed; and that intent is matter in pais, to be collected from all the circumstances of the case. The deeds of Hill, Merrit and Rhodes, contain nothing on their face (as the instruction prayed for concedes) which is inconsistent with or repugnant to the power in the settlement deed; and it demands of the court, notwithstanding, that in point of fact they were not executed Under the- power. This was matter of fact and intent, involved in the issue before the jury, and as such, exclusively for their decision. This very point underwent the most deliberate consideration of this court in the case of Carver v. Jackson, upon an exception taken to the charge of the court. ' It was then treated solely aS a matter, of fact, for the consideration of the jury; and from that view of it, we do not perceive the slightest reason to depart.
The n.ext and last objection relied on is, that the court refused to instruct the jury, that
“
the evidence upon the' one side or the other should not be submitted to the jury-as prima facie or presumptive evidence, either for or against a delivery; but the jury should-consider and weigh the whole evidence together, and from the whole determine whether or not the deed was delivered.” That the whole evidence was to be considered and weighed by the jury, upon the points in' issue, was indisputable and undisputed. The only question was, whether the defendant had a right to insist upon shutting out from the consideration of the jury .the nature of the evidence, .as prima facie proof, or otherwise, and to.prescribe the order and manner in which it should be examined and Weighed by them. We know of no principle of law upon' which su.ch a claim can be main
tained. Whenever evidence, is offered to the jury, which is in its nature prima facie proof, or presumptive proof, its character, as such, ought not to be disregarded; and no court has a right to direct the jury to disregard it, or to view it under a different aspect from that in which it is actually presented to them. Whatever just influence it may derive from that‘character, the jury .have a right to give it; and in regard to' the order in which they shall consider the evidence in a cause, and the manner in which they shall weigh it, the law has submitted it to them to decide for. themselves; and any interference with this right, wobld be ah invasion of their privilege to respond to matters of fact. The objection is therefore overruled.
Upon the whole, the opinion of the court is, that the judgment of the circuit court .ought to be affirmed, with costs.
Mr Justice Baldwin dissented in writing.
The opinion of Mr Justice Baldwin was not delivered to the reporter.
This cause came on to be .heard on the transcript of the record from the circuit court of the United States for the southern district of New York, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this Court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed, with costs.