The opinion of the court was delivered by
Williams, Ch. J.The orator states in his bill, that he is the equitable owner of lot, No. 55, in Newbury ; that the legal title was in Jacob Bayley at the time of his death, and that his administrator had, by his deed, conveyed this title to the defendant in violation of the trust and duty of Jacob Bayley, which devolved on his administrator.
It appears that in 1763, Benning Wentworth, then governor of New-Hampshire, and then exercising jurisdiction over the territory comprehending the town of Newbury, granted the same to seventy-five proprietors, of whom John Hugh was one ; that an order of the king of Great Britain in council was made in 1764, by which the west bank of Connecticut river was to be the west line of the province of New-Hampshire, and the dividing line betwen that province and the province of New-York. It appears, further, that the proprietors, under the New-Hampshire charter, first met June 13, 1763, and held several proprietors’ meetings in that, and the succeeding years ; that, in May, 1765, in consequence of the king’s proclamation, they voted to send agents to New-York to acknowledge their jurisdiction, and beg their protection, and at a proprietors’ meeting, held November, 1771, they voted that Jacob Bayley proceed to New-York, and take a patent for them, and to act for them in other matters, as he should find for their good, and at this meeting, seven-eighths *604of the proprietors are stated to have been present. Mr. Baykjb w^° is ca^e<^ General Bayley by the proprietors, in 1772, obtained a charter from New-York, in the manner which ... . was then customary, in which the land was granted to him and twenty-four other persons therein named, who immedidiately, by deed of lease and release, conveyed the whole tract to him. In this grant it is recited that he petitioned for himself and the proprietors and inhabitants, and, on the presenting the petition, it was ordered by the governor and council of New-York, that, previous to passing the grant, the grantees, or some of them, should execute a bond, conditioned to convey to the proprietors under the New-Hampshire charter, except Benning Wentworth, the several lots, shares and proportions which they were entitled to under the grant from New-Hampshire, on their paying their proportion of all fees, expense, &c. This grant, thus obtained, was a confirmation grant, as they were termed. After this, the proprietors continued to hold proprietors’ meetings, until as late as 1791, and possibly afterwards. In 1788, a proprietors’ meeting was called by General Bayley, as proprietors’ clerk, the application for which was from persons calling themselves proprietors in the township granted by governor Wentworth. From the testimony of the son of General Bayley and others, it appears that General Bayley always deeded to the New-Hampshire proprietors, when requested ; that he claimed no expenses or fees from them ; they were probably paid in the manner hereafter mentioned. From the proceedings of the proprietors ; the part taken in them by General Bayley ; his petition to the governor of New-York, and the recital in the grant, it is abundantly manifested and proved, by writing, as well as by the testimony, that he acted as agent of the New-Hampshire proprietors, and held the land in trust for the New-Hampshire proprietors, himself among the others. YFhe number of rights which he, as well as others, claimed to hold, appears in the proprietors’ records. It is, therefore, of no importance, at this day, to inquire how many, or how few, of the New-Hampshire grantees settled in the town of Newbury, as it is manifest that the town was settled under the proprietors named in the New-Hampshire grant; the evidence of which was then well known and understood. If any of the proprietors under New-Hampshire, *605abandoned their rights, and never set up any claim, or acts of ownership, lapse of time may, at this day, prevent any claim from being set up thereto. It.remains, therefore, to' inquire whether there has been any such abandonment of the right of John Hugh, a part of which right the orator claims.
It appears that, so far from Hugh abandoning his right, in 1770, he conveyed it to Hale ; that Hale, in 1779, conveyed lot No. 55 toThomas Johnson, the father of the orator, and, under the will of Thomas Johnson, proved in 1819, this lot became the property of the orator ; that, in 1799,1805, 1808, and several other years, Thomas Johnson paid the taxes on this lot, and all the taxes have been paid by the orator and his father, and none by the defendant, or General Bayley. It further appears by the proprietors’ records, that Hugh drew lots to two rights, and one of his lots, No. 11, the grantee of Hugh conveyed to General Bayley, who had previously conveyed it to Doct. Witherspoon ; General Bayley thus recognizing the very title under which the orator claims. General Bayley died poor.
A question, then, is raised whether General Bayley had not some claim on this lot, for his expenses, fees, &c. The expenses in obtaining the ¿New-Hampshire charter appear to have been trifling, but seventeen dollars in the whole, and for the expenses of obtaining the charter from New-York, it appears that General Bayley never asserted any claim. The money for that purpose was probably raised by his sale to Doct. Witherspoon, and George Clinton, and one of the lots, set to the rights claimed by Hugh, No. 11, was sold by Bayley to Doct. Witherspoon, and, afterwards, deeded to Bayley by Hale, the owner of the right.
The inquiry then is, is there any thing disclosed, in this case as a reason why the trust should not be executed, and the defendant decreed to deed to the orator. Every thing is in favor of decreeing the conveyance and nothing opposed to it. The orator and the grantees under Hugh have ever claimed that right. All the taxes on this lot have been paid by the orator and his father. No claim, or act of ownership by Gen. Bayley, in his life time, is proved. He died poor, and no administration was taken of his estate for fifteen years. The doctrine of abandonment and lapse of time, which has been insisted on so strongly by the defendant, ap*606plies with much greater force against the defendant than against the orator.
From the evidence in the case, in atrial at law, the jury would be directed, at this time, to presume a grant from General Bayley to the claimants under the right, according to the doctrine of the case in 4 Wend. p. 58 ; but, as the defendant has improperly interfered between the trustee and the cestui que trust, it may be proper, to put an end to litigation, to compel him to convey to the orator. Whether he will have to pay the fifty dollar note to the administrator of General Bayley, is of no importance in this case ; nor can he complain, if, having bought one lawsuit, he finds himself visited with as many as may be necessary to prevent the consequences of an improper and unjustifiable interference with the claim of the orator. Nor can he call on this court to protect him from the consequence of an unprofitable purchase of a lawsuit, as such purchases are not favored in a court of equity.
The decree of the chancellor is, therefore, affirmed with additional cost.