delivered the opinion of the court. The lessors of the plaintiff must recover in this case, either on the strength of the deed of the 12th of 3tarch, 1779, or of their possession of the premises prior to the entry of the defendant. They have shown no title but what is to be deduced from one or other of these sources. :
1. The deed produced does-not appear to be sufficient to give them the title in question. Considering it in all its parts, it is to be taken as a mere article of agreement, and not a conveyance of an estate. It purports, by its formal commencement, to be only articles of agreement, and it concludes by binding the parties to each other, in a penalty fpr the performance of the grants and covenants in the deed. It is well understood, that as early as the year 1779, the form of conveyance in this state was. by lease and release, and that this had been the universal practice during the colonial government, a practice which continued until the abolition of the British statutes, in *395the year 1788. It was the generally received opinion at that day, that a bargain and sale required enrolment, and this usage and opinion (whether correct or not is perfectly immaterial) is a strong indicium of the understanding of the parties to this deed, that no estate was to be conveyed. There was no consideration paid or acknowledged, but only an agreement that bonds should thereafter b" assigned, and there was a mutual covenant to secure the lands and bonds “ to be conveyed and assignedfrom forfeiture and confiscation. After this, who can doubt of the intent ? The intent, when apparent f and not repugnant to any rule of law, will controul tech-| meal terms, for the intent, and not the words, is the essence of every agreement. In the exposition of deeds, the construction must be upon the view and comparison of the whole instrument, and with an endeavour to give every part of it meaning and effect. The rule as to leases, according to Lord Chief Baron Gilbert, (Bacon, tit. Leases, &c.) is, that though the most proper form of words be used to describe and pass a present lease for years, yet, if upon the whole deed there appears no such intent, and that it is only preparatory and relative to a future lease to be made, the law will rather do violence to the words, than, break through the manifest intent. The case of Sturgion v. Dorothy, (Noy, 128.) is directly to this point. There was in that case an article of agreement to lease a place for 50 years, and the words were in the present tense, and with the form of an immediate demise, but as the intent from another part of the same paper appeared to be, that the agreement should only be executory, the court ruled that it -was not a lease, but only an agreement for a lease. The like decision was made in the modern cases of Goodtitle v. Way, and of Doe v. Clare; (1 Term, 735. 2 Term, 739.) and in one of those cases, the decision in Noy was recognised aa law. The same rule of construction has been applied to eases where a life estate was in question. It was determined in Doe v. Smith, (6 East, 530.) that where the *396whole instrument imported that something ulterior to the agreement was to be done by' way of a regular lease, it showed the intent to be, notwithstanding the words' of the demise appeared to be in presentí, that the writing was only to operate as an agreement for a lease, and not as the lease itself. But the case of Foster v. Foster, (1 Lev. 55. 1 Sid. 82.) is much more analogous than any which has been mentioned. The deed in that case respected an estate in fee, and began with the like form of commencement, as the deed in the present case, and used the like words denoting an immediate conveyance, but the court held, that the articles did not raise 'any use, but rested only in covenant; that it was only an agreement preparatory to a further assurance, and that no fee passed.
These cases sufficiently establish the rule of construction, that though a deed may in one part use the formal and apt words of conveyance, yet if, from other parts of the instrument taken and compared together, it appears that a mere agreement for a conveyance was all that was intended, the intent shall prevail.
If, however, we were to give this article of agreement the force and effect of a technical bargain and sale, it is evident that only a life estate was conveyed to George Ludlow; and that the cestui que trusts, if they had any remedy, after the death of Ludlow, to enforce the trust, were under the necessity of resorting to a court of equity to obtain it. The legal estate reverted back to the heirs of Baltus Van Kleeck. The reversion in fee was clearly in the bargainor, for want of words of inheritance. Whenever the use limited by a deed expires or cannot vest, it returns back to him who raised it, and a use upon a bargain and sale cannot be limited to any other person than . the bargainee. He cannot be seised of the land to any other use than his own. The trust created in this case was exclusively within the cognisance of the court of chancery. It is, therefore, a most obvious conclusion, that the paper title set up by the lessors must fall to the ground.
*3972. The next point in the case is, whether the lessors made out a title by possession.
It appears that Baltus Van Kleeck was the original owner of the premises. He acquired a title by a descent cast from his father, Laxvrence, and he was in the peaceable possession at the commencement of the American war. The legal title must still reside in his heirs, except so far as it may be deemed to be lost or weakened by the possession of the Ludlow family. After a careful examination of the facts, I cannot perceive that the lessors of the plaintiff have made out a right of possession. William Ludlow entered in the year 1776, as a tenant under Baltus Van Kleeck, and he remained there for a year, and then left the premises. M’Dougle succeeded him, and said that he was put in possession by the commissioners of sequestration. Here was still a possession continued under the title of Van Kleeck, by public officers, assuming the possession as belonging to Van Kleeck, who had withdrawn, within the British lines. M'Dougle was succeeded by Lewis or Wood, and he by Chamberlain, who was in possession in 1784 and 1785, and paid rent to one of the executors of Baltus Van Kleeck. In 1785, the executors of Baltus sold the premises at auction, and Carman purchased and took possession under that title, and held the premises until the year 1794, when we first hear of any recognition of a title in the' Ludlow family, and it is from that time only that any title by possession can be deduced. The fact mentioned by one of the witnesses for the plaintiffs, that Lewis, who was in possession after M'-Dougle, said that he held under the Ludloxvs, cannot have much weight. It is probable there must have been some mistake on this point, as the possession and title of Van Kleeck seem after-wards to have been regularly continued down and acknowledged until the controversy which took place with Car-man, in 1794. The possession of the Ludloxvs since the year 1794 was equivocal, and not sufficient to support any *398.title founded upon possession alone. About the time that Carman acknowledged their title ; he quitted the posses-' sion, arid from that time until the entry of the defendant, the premises were left vacant and uninclosed. The payment of taxes, and the partitions made by the Ludlow family, were not evidence of actual possession, though they may have been of a claim of title. The lessors of the plaintiff, therefore, failed to support a right founded on possession, and the defendant showed an outstanding title in the legal representatives of Baltus Van Kleeck.
The court are, accordingly, of opinion, that the verdict was against evidence, and ought to be set aside.
Van Ness, J. having been formerly concerned as counsel, gave no opinion.
Thompson, J. not having heard the argument, gave no opinion.
Rule granted.(a)
A new trial was also granted in the case of Jackson, ex dem. Ludlow and others, v. French, depending on the same questions,