Howard v. . Moot

64 N.Y. 262, 1876 N.Y. LEXIS 66

• Court: New York Court of Appeals
• Decided: February 22, 1876
• Status: Published

Opinion

Allen, J.

The plaintiffs bring their action to recover the possession of a parcel of land in the county of Livingston, in the possession of the defendant, to which they make title through-several mesne conveyances from the State of Massachusetts. The lands in controversy are a part of the tract ceded to that State by the treaty and deed of cession between it and the State of New York, made on the 16th day of December, 1786. The title of the plaintiffs rests mainly upon documentary evidence, and has been very frequently before the courts of this State, and been sustained hitherto against the objections taken to it by astute counsel. Having been so often subjected to the test of judicial scrutiny, we should not expect to discover at this day any very flagrant defects in it. The defence of this action is sought to be upheld, not by affirmative proof of right in the defendant, or of title out of the plaintiffs, but by technical objections to the documentary and other evidence offered by the plaintiffs, which seem not to have been noticed in former litigations involving the same title. It is a circumstance worthy of notice that the objections now taken might have been taken, and were as patent in former contestations as they now are, but were either overlooked by counsel or disregarded by the courts. Still, if valid, they must have effect, although discovered late.

It will not be necessary to do more than to consider the objections urged upon this appeal. The general history and chain of the title will be found in several of the reported cases in this State. (Duke of Cumberland v. Graves, 9 Barb., 595; S. C., 3 Seld., 305 ; People v. Snyder, 51 Barb., 589; S. C., 41 N. Y., 397.) The first exception and objec tion is to evidence taken pursuant to the act to perpetuate certain testimony respecting the title to the Pulteney estate, passed in 1821. (Laws of 1821, chap. 19.) The act authorized the perpetuation of testimony under the direction of the Court of Chancery, and made the same prima facie evidence of the facts set forth in the examination of the witnesses, if the chancellor should be of opinion that the depositions furnished good prima facie evidence of such facts. It is not objected that the depositions offered and read in evidence were not taken in due form, or that the opinion of the chancellor was not properly certified and given, to make the depositions evidence, if the same were competent in other respects.

But two objections were taken to this evidence upon the trial: First, that the legislature had no power to authorize the testimony to be taken d,e bene esse without giving any adverse party the right of cross-examination ; and, secondly, that the testimony as given in the deposition was mere hearsay, and upon points upon which hearsay evidence was incompetent. While the legislature cannot take from parties vested rights without compensation, the remedies by which rights are to be enforced or defended are within the absolute control of that branch of the government. The rules of evidence are not an exception to the doctrine that ail rules and regulations affecting remedies are, at all times, subject to modification and control by the legislature. The changes which are enacted from time to time may be made applicable to existing causes of action, as the law thus changed would only prescribe the rule for future controversies. It may be conceded, for all the purposes of this appeal, that a láw that should make evidence conclusive which was not so necessarily in and of itself, and thus preclude the adverse party from showing the truth, would be void, as indirectly working a confiscation of property, or a destruction of vested rights. But such is not the effect of declaring any circumstance or any evidence, however slight, prima facie proof of a fact to be established, leaving the adverse party at liberty to rebut and overcome it by contradictory and better evidence. That this may be done is well settled by authority. (Hand v. Ballou, 2 Kern., 541; Hickox v. Tallman, 38 Barb., 608; Commonwealth, v. Williams, 6 Gray, 1; Cooley’s Const. Lim., 367, and cases cited.) The act of 1821 was not in excess of the legislative power.

The objection that the testimony taken under it was hearsay is not tenable. It was not all hearsay. Some of the facts stated by the witnesses were within their own knowledge. But if it were otherwise, the legislature made the chancellor the final arbiter to determine what should be good prima facie evidence of the facts stated; and such evidence, whether resting wholly upon hearsay or otherwise, is, under the act and within the authorities cited, conclusive in the absence of any evidence to controvert it or suggestion that it is untrue or mistaken. Perhaps some of the facts stated were susceptible of better proof, and the evidence might not have been admissible under the application of strict rules upon the trial; but upon reading the whole evidence, there was clearly sufficient to justify the chancellor in certifying that it was good prima faeie evidence of the facts stated, those facts relating to the death of some parties and the succession and inheritance by the claimants of the large tract of land of which the locus in quo is a part. If, however, the evidence was slight and unsatisfactory, it would have been more easy to meet and overcome it before the jury. It is enough that it was competent; its effect was for the jury.

There is no force in the objection taken at the argument, that the chancellor merely certified that the depositions were prima facie evidence that the witnesses had heard and believed as they stated. To give it that interpretation would be trifling with a solemn judicial act. The certificate related to the facts which the statements tended to prove, and to prove which the depositions were taken, and to perpetuate the proof of which the act was passed.

The next objection is to the will of Sir John Lowther John-stone, upon the grounds: First, that it did not appear that the testator was twenty-one years old when the will was executed ; secondly, that by the laws of the State he could not convey or devise the lands; and third, that being an alien he was incapable of making a devise of lands. The will having been regularly admitted to probate, and no objection being taken to the proof or the exemplification of the record of such will and proof as produced and given in evidence, it could only be impeached for incapacity of the testator, either by reason of nonage or imbecility, by direct proof of the facts alleged. Competency to execute an instrument thus solemnly proved will be presumed, until the contrary is shown'. The right of Sir John Lowther Johnstone, notwithstanding his alienage, to devise lands within this State is clearly established by the judgment of this court in The Duke of Cumberland v. Craves (supra). This right was secured by the act of April 2, 1798, authorizing aliens to take and hold real property within the State, to them, their heirs and assigns, forever.

The objection to the deed from Charles H. Pierpont to the Duke of Cumberland and others, upon the ground that it was unauthorized by the act of 1798, and that there was no competent proof of its execution, was properly overruled.

The point urged upon the hearing in this court, that there was no authority proved in Jonathan Brundrett to execute in behalf of the Duke of Cumberland, was not taken at the trial, and if it had been taken would not have applied, as it was another deed, to which no objection was taken, that was executed by Mr. Brundrett; and no defect in the proof to the deed from Pierpont to the Duke of Cumberland is suggested.

Several objections were urged at the close of the trial to the right of the plaintiffs to maintain the action, all of which had respect to defects in the title of the State of Massachusetts, by reason of a failure to extinguish the Indian title and to comply with other conditions of the compact between the two States. Whether the fact that the Indian right of occupation, which was the extent of the right of the. Indian tribes to lands within the State, had not been extinguished with the sanction of the State government or abandoned by the Indians themselves, could be set up by one without title against the owner in fee, subject to the rights of the Indians and with the right of pre-emption from them, is questionable. The title of the Indians to the soil is founded upon simple occupancy, and they have no power to dispose of the soil except to the government, or one who has acquired from the government the right of pre-emption. (3 Kent’s Com., 79, 80; Strong v. Waterman, 11 Paige, 607; Goodell v. Jackson, 20 J. R., 693 ; Johnson’s Lessee v. Mackintosh, 8 Wheaton, 543; United States v. Cook, 19 Wal., 591.) In the case last quoted Chief Justice Waite says: “ The possession, when abandoned by the Indians, attaches itself to the fee without further grant.” (See Jackson v. Hudson, 3 J. R., 375.) • But this court held in The People v. Snyder (supra), that this court will take judicial notice that the tract of land of which the premises in dispute are a part, was ceded to the State of Massachusetts, and that under the proper authority of both States and of the nation the Indian title has been extinguished.

Courts will take notice of whatever ought to be generally known within the limits of their jurisdiction. The history of the Six Rations of Indians is a part of the history of the State, of which the courts will take notice. (1 Greenleaf’s Ev., § 6.) It is a matter of notoriety that but few of the Indians that once were the occupants of the lands within the State are now dwellers within its boundaries, and their residence and occupation are restricted to a few well-known and legally established reservations of limited extent, set apart for their use. The statute books of the State need only be referred to to learn the extent of the present Indian occupancy. In addition to this presumption, the plaintiffs have produced, upon the argument of this appeal, authentic documentary evidence of the extinction of the Indian title.

Without considering in detail the several propositions urged by the learned counsel for the appellant, in impeach ment of the title of the State of Massachusetts -and her grantees, and the proceedings to perfect it under the treaty, it is sufficient to say that upon a careful examination it appears that all the terms and conditions of the treaty, upon which depended the right of Massachusetts and her grantees to an absolute and indefeasible estate in the lands granted, have been substantially performed. The title has been recognized by the different departments of the State government, and its validity frequently affirmed by the courts; and it should not be overthrown at this late day upon slight or technical grounds, if any such exist. I have discovered no defects in the title.

The judgment must be affirmed.

All concur; Folgeb, J., not voting.

Judgment affirmed.