This case affords a necessary presumption, either of a lease in fee to Casper Ham, the ancestor of the plaintiffs, from Van Rensselaer, the proprietor of the manor, or of an agreement for such a lease.
The premises are included in the manor of Rensselaer; and Casper Ham took possession, some time in the former part of the last century, of about 300 acres of land, of which the premises are a part. The precise time cannot be ascertained, though the family tradition is, that he entered in or about the year 1730. His daughter Maritje, who was eighty-five years of age at the time of her examination, fixes upon that period, and speaks from information and belief derived from her early life. There is no doubt, that Casper Ham took possession under the proprietor of, the manor, at some distant period of time beyond the memory of man, and that he continued in possession, making valuable improvements, and exercising various acts of ownership, down to his death, in the year 1777. The rent that Casper Ham paid is ascertained, not merely by the faint recollections or traditional information of his family, but by authentic written testimony. In the books of Abraham Ten Broeck, there is a charge, in 1766, against Casper Ham, for three years rent, at twenty-five skipples of wheat, four fowls, and two loads of wood a year; and there are several other entries to the same effect. As to the length of time in which Casper Ham occupied the land, we find in the same books, of the date of January, 1799, a charge of thirty years rent due from Casper Ham, and this carries his occupation back thirty years from 1777. These •charges, also, show the nature and amount of the rent paid, or due, to the proprietor of the manor, before the sale by the proprietor to Ten Broeck and his wife, in 1764.
It is in proof, that the adjoining manor lands are generally held under leases in fee, subject to an annual rent.
When Casper Ham died, in 1777, his son Peter was bis *6heir at law, and he continued in possession of the inheritance derived from his father. We find him
Gaudentcm patrios Jindere sarculo Agros. ......
He made valuable improvements, and exercised various acts of ownership down to his death in 1807. He paid the same, rent that his father had paid to Ten Broeck, viz. twenty-five skipples of wheat, two loads of wood, and four fowls, until, by agreement, the payment in wheat was commuted for a payment in money, at the rate of one shilling per acre. Of the payment of the rent by Peter Ham there is abundant proof. He sold, in his life-time, fifty of the 300 acres, descended to him from his father, to one Filkin, with the assent and approbation of Ten Broeck, for 100 pounds; and Ten Broeck gave credit to Peter Ham for that sum, in October, 1799, as so much money received from Filkin, to %vhom Peter Ham, “ with his consent,” had given up fifty acres “ of what he had under improvement.” Ten Broeck afterwards gave Filkin a lease for three lives of those fifty acres, at the rate of one shilling an acre.
Peter Ham, by will, devised his farm of 250 acres (deducting the fifty acres sold to Filkin) to his five sons, in different proportions; and it is in proof that those devisees continued, after the death of their father, to pay, and Ten Broeck, and after his death, his representatives, to receive, the same rent of one shilling per acre, and two loads of wood, and four fowls a year, down to a period as late as 1813.
Here, then, we have the striking fact of a farm occupied and cultivated, under a steady and uniform rent, for three generations, and including a period of upwards of eighty years; and yet, according to the allegation on the part of the defendants, the plaintiffs, and their ancestors, were nothing, during all this time, but mere tenants at will. The fact is utterly incredible. The ancestors of the plaintiffs claimed a permanent interest in the soil, and their va*7Hons, constant, and expensive improvements corresponded with such a claim. There is one fact which shows an unequivocal recognition of the claim by Ten Broeck, the owner of the rent. He consented that Peter Ham should sell fifty acres to Filkin, and he received from Filkin 100 pounds, being the consideration of such sale, and gave Peter Ham credit for that sum, on his arrearages of rent. Can we reasonably suppose, that Ten Broeck considered Peter Ham as a mere tenant at will, when he allowed him to demand, and Filkin to give, 100 pounds for only fifty acres of the farm, and to receive himself from Filkin the fruits of the purchase? If Filkin bought only a possession held at will, such a price, given twenty years ago, was the grossest imposition and extortion, under the sanction of the landlord. I have too much respect for the memory of General Ten Broeck to believe that he then viewed the interest of Peter Ham in so trivial a light.
We must presume, that a lease in fee, under the acknowledged rent, was originally given to Casper Ham, and equity may make such presumption, as well as a Court of law and a jury. (Steward v. Bridger, 2 Vern. 516. Hillary v. Waller, 12 Ves. 252. 269.) But if that presumption cannot be indulged, because the witnesses seem to have understood that neither of the Hams ever pretended that such a lease was actually executed, we must then conclude, that there was an original agreement for such a lease, and that the elder Ham took possession under that agreement, and made his improvements, from time to time, upon the faith of it, and in execution of it. The agreement was not a lease for lives. The facts afford no foundation for that inference. The land was occupied, and the rent paid, through successive generations; and if those facts are evidence of any original agreement, they must be of an agreement for a perpetual lease, according to the custom of the manor, upon the reservation of the rent afterwards, and constantly, paid. The delivery of possession may amount to part *8performance; and the fraud consists in permitting this possession to take place, and in leading on Casper Ham and his son, through a period of fifty years, to expend money an¿ ]a]DOUr jn the melioration of the estate, and then to withdraw from the performance of the agreement. “ Possession is so strong a title,” said Lord JYorthington, “ that a judge may have emphatically said, he would presume an act of Parliament to support and confirm it.” (1 Eden's Rep. 296.)
It is proved that Ten Broeclc and Peter Ham did agree to a lease for lives; but that agreement, which was a substitute for the original one which I have presumed, was by . parol, and never carried into effect, and cannot be enforced. The lives are not ascertained, and we are obliged to recur back, and to exact a performance of the original agreement for á lease in fee, subject to the variation in the. rent of the one shilling an acre, for the skipples of wheat, and which was for many years executed and acted upon by both parties.
I shall accordingly decree, that the defendants execute to the plaintiffs a lease in fee, for the two pieces of land described by metes and bounds, in the depositions of the witnesses, the one containing eighty-two, and the other ten and a half acres; that.the annual rent to be reserved thereon be eleven dollars and fifty-six c'ents, together with two loads of wood, and four fat fowls; and that the lease contain the usual stipulations and covenants.in the ancient leases in fee of lands in that part of the manor of Rensselaer, lying east of Hudson’s river; and that it be referred to a Master to ascertain and settle the form of such lease, and report the same; and that the question of costs, and all other questions, be, in the mean time, reserved.
Decree accordingly.