#### 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, *412and 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**413Golden, 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 *414under 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 c*o*urt 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.”ǁ

*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,ǁǁ

*415Again ; 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,**ǁ***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 *416that 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,ǁ 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 timeǁǁ

*417The 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.*

ǁ

 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.

ǁǁ

 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-

ǁ

 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.

ǁ

 10 *Vesey.*381.

**

*2 Caines’Cas. in Error,*183. 192.

††

*iSJofttis. Rep.*320.

‡‡

5 *Johns. Rep.*42. 43.

ǁǁ

*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 *418all 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 *419*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. *(a)***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..

(a)

 Vide *Davoue*v. *Fanning, 3*Johns. *Ch.*Cases, 252. 270.

10

*Mm. Rep.*457. 4 *Ros. and puii.*334.

§

 13 *Vesty,*120. *sugden, l. of*