#### Jackson, *ex dem.*King and others, *against*Burtis and Woodward.

NEW-YORK,

October, 1817.

Where a devises his real and estate to persons as tenants in some of whom he his and them, or the major part of them, to sell bis real this is a coupled with an interest; that “¡seesTandmay tho^vTvoLor omti.°rJait «i persons are devisees and in common ofland. which is sold by two of the executors and devisees, under a power in the will of the devisor, and afterwards one of the executors and devisees who made the sale, purchases from the grantee, and takes a conveyance of the land to himself absolutely, the title becomes vested in him solely, and his declarations that he held in common with his co-devisees are insufficient to entitle them to recover a portion of the land as tenants in common with him. An attorney or counsel, who, as the attorney or counsel of one of the parties in a cause, has been entrusted with a third cannot be called by the opposite party to produce these papers ia evidence»

This was an action of ejectment for certain premises situate in the city of *New-York.*The cause was tried before Mr. J *Yates,*at the *New-York*sittings, in *November,*1816.

*William Teller, John Kip,*and *Lucas Kiersted,*were the patentees of a certain lot of land in the city of *New-York,*called the *Negro Burial Ground. William Teller*survived the other two patentees, and died, having made a will, under which his four children, one of whom was *William Teller,*the younger, the ancestor of the lessors of the plaintiff, became en-to the premises in question. *William*Teller, the younger, died in 1758, after making a will, dated the 21st of *July,*1753, by which he devised all his estate, real and personal, to his wife *Mary,*as long as she should remain his widow, and after her ifi o *394marriage, or decease, he devised the same unto his eleven chil¿ren> some 0f whom, or whose representatives, were the lessors of the plaintiff, in equal undivided portions. The will also .contained the following power :—“ I will and ordain, that my .executrix and executors, herein named, or some of them, for and towards the performance of this my testament, shall and may, as they, or some of them, shall think meet and conve' nient, at any time after my decease, bargain, sell, alien, and convey, in fee simple, any or all of the land, messuages, tenements, and hereditaments, of which I shall die seised in any parts of the world, to any person or persons; and for the doing, executing, and perfect finishing whereof, I do, by these presents, give, grant, will, and transfer to my said executrix and executors, herein after named, or some pf them, or all, full power and authority to grant, alien, bargain, sell, convey and assure, all or any of my lands and tenements, and good and sufficient deed pr deeds, conveyances or assurances in the law, to make, seal and execute for the -same, to any person or persons, and his pr their heirs or assigns forever; hereby ordering and appointing that no sale or sales be made, without the knowledge, consent, and approbation of my executrix, as long as she remains piy widow, but after her death or marriage, which shall first happen, th,en the same to be sold, at the discretion of my executors, or the major part of them.” The testator then appointed his wife, Mary, executrix, and his sons, William, *Jeremiah, John, Jacobus, Isaac,*and *Gualterus,*and his son in law, *Jacopus Buys,*the husband of his daughter *Mary,*one of the dev}? sees in his will, his executors,

William, *Jacobus,*and *Gualterus Teller,*died before the testator, and *Mary*his widow, and his son *John Teller,*died about a year after his decease. *Isaac Teller*and *Jacobus Buys*alone qualified as exe.cutprs. By a deed of release, dated the 8th of *July,*1760, between *Jeremiah Teller, Isaac Teller,*and *Jacobus Buys,*the only surviving executors, of the one part, (the deed, however, was only executed by *Isaac Teller*and *Buys,)*and *Christiana Prevost,*of the other part, the grantors, as the executors of the testator, and under the power in his will, released to *Christiana Prevost,*in fee, for the consideration of 109L 14s. all the testator’s fourth part qf the premises patented to *William Teller,*the elder, *Kip,*and *Kiersted,*the same being in posses sion of the releasee, by virtue qf a lease, bearing date the day *395preceding. Afterwards, by a deed, dated the 10th of *May,*1765, from *Christiana Prevost,*and four other persons, but only exe cuted by *Christiana*Prevost» and two of the other grantors, to *Isaac Teller,*the former, in consideration of the sum of *IhQh*released and quit claimed the premises to *Isaac Teller*in fee. Evidence was given ori the part of the plaintiif, of some parol declarations of *Isaac Teller,*subsequent to the deed of 1765, that the premises in question were claimed and owned by him in common with the other children of the testator»

During the trial, the attorney for the defendants was called as a witness on the part of the plaintiff, and testified, that he had been served with a *subpana duces tecum*to produce certain papers at the trial of this cause, which he had received as the attorney and counsel of *Henry R.*Teller, in certain actions brought for the recovery of certain parts of the *Negro Burial*Ground; and that *Henry R.*Teller, having compromised with the defendants in those suits, had left the papers with the witness, as the attorney and counséfof the defendants in this suit, and in other suits now pending* and that he held them as counsel for the defendants, and declined to produce them unless directed so to do by the court. The judge decided that the wit= ness was not bound to produce the papers.

After the evidence was closed, the judge charged the jury, that the deed from the executors of *William Teller*to *Christiana Prevust,*was effectual to convey all the title of *William Taller*in the premises in question, and that that deed, and the deed from *Christiana Prevost*and others, to *Isaac Teller,*were conclusive to show, that *Isaac Teller*was not possessed of the premises as a tenant in common, with the lessors of the plaintiff or their ancestors; and directed the jury to find a verdict for the defendants, which was found accordingly. The plaintiff moved that the verdict should be set aside, and a new trial granted.

The case was argued by *Huntington*and *Van Veckten*for the plaintiff, and by *Brinkerhoof*and *II. Bleecker*for the defendants;

*For the*plaintiff. was contended,

1. That the lessors of the plaintiff had made out a good title to a part of the premises jn question, as tenant in common with *Isaac Teller*deceased; The entry of one tenant in common is good for all * The possession and seisin of one tenant in common, is the possession *396and seisin of the others; for such possession is in support of-the common title.* The bare perception of rents and profits by one will not amount to an ouster. The entry of *Isaac Teller*is not to be presumed adverse or hostile to the lessors claiming under the will of *William,*Teller.† His declarations show in what character he entered and held possession of the premises in question.‡

In Smith, ex dem. *Teller,*v. *Burtis,**§***Spencer, J. says, that one claiming as tenant in common, under the same title as that of the lessors of the plaintiff, qualifies his entry, and admits , 1 1 . the title of the lessors. When the person entering evinces, by , , i *° J*his acts and declarations, that he does not mean to usurp the possession to himself, but enters in subserviency to the same title, as tenant in coipmon, the entry loses its adverse character. So that neither *Isaac Teller,*nor the defendant, can set up his entry, as adverse to the common title. Every presumption is in favour of a possesssion, in subordination to the title of the true owner.** Can the defendants, being perfect strangers, set Up an outstanding operative title in *Isaac Teller?*

2. The deed produced in.evidence, on the part of the defendant, did not bar the right of the lessors of the plaintiff to recover. This deed is executed by two of the grantors only, and though described as executors of *William Teller,*they do not sign as executors, but as individuals merely. It should have been executed by them in their capacity of executors.***J*» ^ • 1 «11 Again ; there were seven executors named in the will of *William Teller,*four of whom survived the testator, and three were living at the time the deed was executed, and only two of them qualified as executors. Until the statute of 21 *Hen.*VIII. ch. 4. those executors only who qualified were not authorized to sell, unless the words of the will expressly gave the power to some or any of the executors named: The statute of 21 *Hen.*VIII. ch. 4. had not been re-enacted here, and did not extend to the colonies, so that a mere naked power to sell could not be executed, 'where any of the executors refused to act. It was not until 1784,, that the legislature passed an act on this subject. The will gives only a bare authority to sell, and where executors have a naked power, if one of them dies, the power, at common law, did *^** not survive.‡‡ The death of *John Teller,*one of the devisees, *7*after the death of his mother, destroyed the power of sale.§§

*397Áí least, a majority of the executors who survived the testator, ought to convey. A deed, by two out of four, is not a valid execution of the power.

Besides, this is not one of the powers mentioned in the act. It is not a *devise*to *executors*to sell; but the devise is to the *children.*Again; the exercise of the power is discretionary, not *imperative.*There was no *trust*to be executed; nor was it a power coupled with an interest, nor was there an *order*of the testator to sell.

The recitals in the deed to *Christiana Prevost*are no evidence against the lessors.*

3. The title set up is an outstanding inoperative title under *Christiana Prevost.*It does not appear that she ever was in possession of the premises; and the possession taken by *Isaac Teller*was after the deed, and in direct hostility to it. There is no evidence that the deed included the premises in question ; and every presumption ought to be taken against it, and in favour of the lessors.

Next as to the deed of *Christiana Prevost*and others : it is a mere quit claim, and is executed by three only of the five grantors named in it. It was not acknowledged by the parties, nor proved by the subscribing witnesses; and their non-production is not accounted for. There was not that proof of its execution which was required by the statute,† to entitle it to be recorded. Neither the words of the acts of the colony legislature, nor the practice under those acts, authorized the recording of it. It ought not, therefore, to have been allowed to be read in evidence. It does not appear, that a possession of 30 years accompanied the deed; nor, in fact, that the deed was ever actually delivered to the grantee; but, on the contrary, the evidence shows that it was delivered as an escrow.

Again; *Isaac Teller*is estopped by his declarations, as to the manner of his taking possession, from setting up this deed in bar;‡ and the defendant, either as a stranger, or claiming under him, is equally estopped.

The grantee of the first deed is described as the widow of *David Prevost,*deceased; but the grantors of the second deed are not described as heirs of *Christiana Prevost*or of *David Prevost.*If the first deed is void, the second must be equally so, if connected as parts of one title. Neither deed co*398vers the premises in question, but if they did, they cannot baf' the title of the lessors.*

Again ; *Isaac Teller*himself has, by parol, as well as by wriadmitted that these deeds were never intended to bar the lessors. After the date of these deeds, and after he had taken possession, he acknowleged, in 1767, to Crawford, that the land belonged to his brothers and sisters ; and again, in 1772 or 1773, he acknowledged, that he took possession for the heirs. At no time did he pretend that the whole title was vested in him alone, or that he held by virtue of those deeds. ^he receipt, too, given by Mr. *Brinlcerhojf*to Mr. *Jay,*mentions'a deed, dated the 14th of *May,*1765, signed by *Isaac Teller, Jeremiah Teller,*and *Jacobus*Buys, as grantors, and *Christiana Prevost*is named the grantee, for 15 lots of the *Negro Burial Ground.*

This deed estops *Isaac Teller,*and those claiming under him, from saying that the deeds of the 8th of *July,*1760, and 10th of *May,*1765, vested the whole in *Isaac Teller*alone, and devested the other children of his father.†

This deed being called for by the plaintiff, on a *subpoena duces tecum,*and not being produced, every presumption in regard to it is to be taken in favour of the plaintiff.‡

4. From the evidence, it is manifest, that the deeds mentioned in the receipt of Mr. *Brinkerhoff,*and which.he was called on to produce, had never been delivered to the grantees, but were delivered merely as *escrows.*At any rate, there are so many circumstances of suspicion attending these deeds, that the court will be disposed to give great weight to the declarations of *Isaac Teller,*in explanation of the transactions.

The opinion of the judge was incorrect, that Mr. *Brinkerhoff*was not bound to produce the papers, mentioned in the receipt of the 10th of *October,*1810. It is always a question, whether, on principles of reason and equity, the production of the writings called for, under a *subpoena duces tecum*ought not to be enforced, under the circumstances of the case.§

5. The judge was incorrect, in charging the jury that the ¿|eec[s produce(j at the trial were conclusive to show that *Isaac-Teller*was not in possession as a tenant in common.

*For the defendants,*it was argued,

1. That the lessors had not shown title, either by deed or possession, sufficient to change the possession. If the plaintiff claims under the will of *William**399*Teller, he*cannot maintain the action. The ancestors of the lessors of the plaintiff never having had an actual or constructive possession, could not transmit a title to their heirs or descendants.*

The possession of a tenant in common is founded in privity of estate, and cannot be proved by parol.† Parol declarations may be admitted to *protect*the rights of a tenant; but can never be received to *create*a right or title to land.‡

Again; the co tenancy ceased with the life of *Isaac;*but if it did not, the continued possession-of *Isaac*is sufficient to afford the presumption of an ouster,§ Besides, the contradictory testimony of the plaintiff, as to the nature of the possession, must destroy its intended effect.

2. The deed from the executors of *William Teller*was sufficient to convey all his title to the premises ; and this involves the question as to the due execution of the power. It was executed, after the death of the executrix, by a *majority*of the executors then surviving, and by all the executors who had qualified.ǁ This question has been, lately, so fully discussed in the court of errors, in the case of *Franklin and others*v. *Osgood and others, on appeal,*in which the decree of the court óf chancery was affirmed, that it is enough to refer to that case, and the authorities there cited.(a) If the power survived, *virtuti officii,*then it was well executed, within the words of the will.

Its execution, however, by all the executors who qualified, was sufficient. The statute of 21 *Hen.*VIII. c. 4. of which our act is a transcript,** declares, that a sale by the executors who take charge of the administration under the will, shall be equally valid as if the other executors, who *refuse*or *neglect*to take upon them the execution of the will, had joined in the sale.

If the power of sale was well executed, then the deed from those executors of *William Teller*was effectual to transfer his title ; and the defendants have thus shown the title to be out of the lessors of the plaintiff.

3. The deeds from the executors of *W. T.*to *Christiana Prevost,*and from *C. P.*and others, are conclusive evidence, that *Isaac Teller*was not, afterwards, in possession of the premises as tenant in common with the lessors, or their ancestor. As to the *manner*of execution, it,is enough to say, that the executors must sign their own names, and the case is very different from that of an attorney acting under a power to sell, in the name of his principal, who is living. But it is objected, that the deed was *400not duly acknowledged or proved. It was proved by a witness present at its execution, though he. was not a subscribing witness. It was admitted as an ancient deed accompanying and followed by the possession.* In *Jackson, ex dem Van Duze*n, v. *Van Duzen,**†***a will, under proof of the same kind, was held t0 be sufficiently proved, to allow it to go to the jury.

As to the objection, that the attorney of the defendants ought to have been compelled to produce the papers in his possion, and called for by the plaintiff: if writings are in possession of the opposite party or his attorney, the proper course, in civil as well as criminal cases, is, to give the party or his attorney notice to produce the originals at the trial, and if not produced according to the notice, to offer evidence of their content.‡ An attorney is not bound to disclose communications or produce papers entrusted to him by hisclient.§

*

*rJlff*

*

 2 Cruise Dig. 552. 3 Cruise 410, 550. 5 Cruise, 207.

†

*3 Johns. Cas. 124. 9 Johns. Rep. 9 Johns. Rep. 163. 2 Cruise. 539.*3 Cruise, 555. 1 Cruise. 14, 15.

‡

1 Johns Rep. 159. Woodfall 492. 4 *Johns.*230

§

9 *Johns.Rep.*174.179. 180.

**

 9 *Co.*76. *Ld. Raym.*1418. 3 Str. 705. 2 *East, 142.*5 East, 148. 6. T. Rep. 176 2 Bl. Com. 306. 1 N. R. L.

§§

*Shep*Touchst. 448,449.3 *Day's Rep.*388.

*

*Peake's Ev.*113, 114.

†

*Van Schaik's ed. Laws, 83. ch.*216. *s 4.*2 Greenl. Ed. Laws, 99. 2 *VanSchaick's*ed. Laws, 611. Phillip's Rv. 356. 357.

‡

*Johns. Rep.*

*

 1 Vern. 473. *484.*5 *Vesey,*678. 682. 707. 3 Bro. C. C 120. 483. 1 Vesey, 9. 8 Vesey, 843. 10 Vesey. 381. 385. 3 Vesey, 750. 11 Vesey, 611 6 Vesey, 625. n *Roberts on Wills, 523 note. 2 Caine's Cases in Error.*183. *8*Bro *P. C.*63. Sugden's L of Vend. 390. 1 Madd. Ch. 93. 111.

†

*1 Johns. Cases 153.*

‡

 Bull. N. P. 293. 2 Peake's Ev. 8.

§

*9*East, 86. *485.Phillip's Ev. 11. 12. Burr, 1687. 1 Esp. Rep.*406.

*

*Runnington's Eject*312 *Cot Lilt*11 *b*2 *JVils.*47. 1 *Cruise,*107. 108. S. 10.

†

9 *Johns.*Rep. 183 185.270 6 *Johns. Rep.*19. 7 *Johns Rep.*186. 10 *Johns. Rep.*336. 358. 1 *Johns. Ch. Cas.*339. *Svg. L. of Vend*418, 419.

‡

*Rvnnmgton's Eject*193. 4 *Term Rep.*234. 1 *Johns. Rep.*343. 1 *Esp.*Rep«. <158. 2 *Term. Rep.*53.

§

7 *Johns. Rep.*249. *Coivp.*217, *Runnington*s Eject.*192.

ǁ

*Powell on*Devises, 297. Cro, *Elis.*26. *Dyer,*176. 6.219. *a.*371 6. *Co. Lilt.*113. *a Cro. Elis*524 *Moore*341. 2 *Leon.*220. 1 *Anders.*145. *Keilm*45. 107. 108. *Cro. Car.*382. 3 *Binney,*69.

(a)

*Vide*2 Johns, *Cha Cases,*1—29. *and*S. C. *in*Error, *posh*

**

 N. It, L. 366. sess. 36. cb.3. s. 11.

*

 w *J3uu*¿V. *r.*2^,256^0/1^ *tatú*’1 Dal'** *R-,,ir*nr

†

*ul3ohni' Rtp'*

‡

*°TamR!tep.*ato. n. 3 *Term Rep.*306. 3 *Campb. Johns 3Rcp‘*340* Mi.3°alc«&

§

*m<lmVRtp?sio.*laa.5'03’5 *Rcp'*

Platt J.

delivered the opinion of the court. The lessors of the plaintiff claim title under several of the devisees in the will of *William Teller,*dated the 21st of *July,*1753, and rely also, on the subsequent possession and parol declarations of *Isaac Teller,*one of those devisees.

The defendants show a conveyance of the 8th of *July,*1760, from *Isaac Teller,*and *Jacobus Buys, two*of the three surviving executors of the will of *William, Teller,*to *Christiana Prevost,*of the premises in question, in fee simple.

The principal question presented by the case is, whether the power to sell real estate, contained in that will, was well executed in making that conveyance to Mrs. *Prevost*?

At the time of executing the deed *by Isaac Teller*and *Jacobu* Buys, to Christiana Prevost,*(the 8th of *July,*1760) the testator, and his *executrix,*and his sons *William, John, Jacobus,*and *Gualterus,*were dead ; and *Jeremiah Teller, Isaac Teller, and Jacobus Buys,*were the only surviving executors named in the will; and it also appears, that *Isaac Teller*and *Jacobus Buys*were the only persons who “ took upon them the execution or administration of the will.’’

The executors who executed the deed, were devisees under the will, and had a direct interest in the sale. This was, therefore, not a *naked power,*but a power *coupled with an interest;*which, on common law principles, survived to *Jeremiah Teller, Isaac Teller, and Jacobus Buys,*after the death of the executrix, and the other four executors ; and, I am of opinion, that inde*401pendent of any statute regulation, the terms of the will, and the . - i -» -i .* intention of the testator, are best satisfied by the construction, that a majority of the three surviving executors might execute the power. *(Franklin*and others v. *Osgood*and others, in the court of errors, 1817, and the authorities there cited.) *7b fZj.*

In this case, the conveyance under the power was executed by *Isaac Teller,*and *Jacobus Buys,*(who were the only persons who took upon them the execution of the will, in any respect,) there being then only three surviving executors. The conclusion, therefore, is, that the power was well executed. This view of the case renders it unnecessary to consider, whether the execution of this power, by the *two executors only who administered under the will,*can be supported by virtue of the statute of 21 *Hen.*VIII. ch. 4.

The deed from *Christiana Prevost*and others, to *Isaac*Teller, dated 10th *May,*1765, was a conveyance clearly devested of all trust; and under him, the lessors of the plaintiff show no written evidence of title. That deed shows an absolute title in *Isaac Teller,*in his own right, *solely ;*and repels the presumption of a tenancy in common with his brothers and sisters, which has been attempted to be raised upon the loose testimony of his parol declarations, respecting the title. The defendants have thus proved a title out of the lessors of the plaintiff.

The only remaining question is, as to the decision of the judge, at the trial, that the attorney of the plaintiff was not bound to produce the papers called for, on a subpoena *duces*tecum. It appears, that Mr. *Brinckerhoff*first received those papers, as attorney and counsel for *Henry R. Teller,*and that Mr. *Teller*afterwards “ *left the papers with the witness, as the attorney and counsel for these*defendantsI can perceive no reason to doubt the correctness of the opinion, that the attorney was not bound to produce those papers.

Upon the whole case, therefore, the defendants are entitled to judgment.

Judgment for the defendants.

ǁ

9 Johns. Rep. 167. 12 Johns. *Rep.*365.

††

6 *Litt.*112. ad 181. a. 3 Salk. 277. Powell on Devises, 291-310. 6 *Johns. Rep.*76. *Shep. Touchst*448. *Powell*v. *Powers,*294. *295. 1 Caines' Cas. in Error, 16. 3 Day's Rep.*384.