Jackson ex dem. Bond v. Root

18 Johns. 60

Opinion

Spencer, Ch. J.

delivered the opinion of the Court. To show a possession prior to the defendant’s, under the same title, the defendant was permitted to prove, that the premises had been possessed under a contract with one Jabez Cobb, which contract was presumed to have been given up, when another contract was made by J. B. Clarke with the defendant. The first contract with Cobb, was in September or October, 1800, and the second, for the same land, with the defendant, in July, 1802. It was shown, that in June, 1801, Cobb went, under the contract, upon the premises, part of lot No. 41 in Pompey, and cleared four or five acres;, sowed it with wheat, and sold the crop to the defendant.

This evidence was objected to, because the contract was not produced, nor shown to be lost, though it was proved that it was relinquished by mutual consent.

The nature of the contract with Cobb is not shown ; but it is certain that it was relinquished by both parties, as early as 1802; and I think there is a material distinction between papers and writings which cease to be of any use or value, or any evidence of title, and such as are the muniments of one’s title. In the first case, the slightest proof of loss, and even presumption, from lapse of time, of a loss, ought to entitle the party to give evidence of the contents, whilst, m the other case, the proof should be more strict. The presumption of fact is, where an agreement is at an end, an(j j-,anCfUS officio, that there exists scarcely any inducement to preserve it; and it is matter of every day experience, at the circuits, to prove the fact of a tenancy, without producing the lease; the tenancy is a fact independent of the lease, though it may be under a lease. I am of opinion, from the lapse of time in this case, connected with the fact that the agreement was surrendered up, that it was competent to prove, that Cobb entered and possessed the premises under Clark, wilhoutstrict and rigid proof of the loss of the surrendered agreement. We have high authority for saying, that the rigour of the law has been relaxed, on the subject of proving the loss of papers. (Livingston v. Rogers, 1 Caines’ Cases in Error, 28.)

The award of the Onondaga commissioners was given in evidence ; and it appeared, that on the 4th of November, 1800, they awarded this lot, two-thirds to John Fisher, and one-third to John E. Fisher, Eleanor the' wife of James B. Clark, and Maria the wife of Peter Clark, and their heirs, in fee.

The plaintiff gave in evidence two deeds from Christian Brandt to Bernard Bond, given in 1795 ; a deed from Bond to Ithuel Battle in 1795, and a deed from Battle to Nathaniel Griffin, in 1797, for all the lot, except 110 acres on the north west corner.

It appeared, that Nathaniel Griffin, on the 15th of August, 1801, commenced an ejectment against Elnathan Cobb, who was in possession of the premises under his father, Jabez Cobb, which cause was brought to trial on the 5th of June, 1802, when a verdict passed for the defendant. It also appeared, that two judgments on verdicts were obtained, in ejectment suits brought by James B. Clark, in August, 1802, against Job Crocker, Elijah Howard, and Archibald R. Maher, all of whom were in possession undér Nathaniel Griffin, and that in the fall of 1802, James B. Clark obtained possession of the whole lot.

A dissent was given in evidence by the plaintiff, filed regularly, on the 18th of February, 1801, by Battle, Griffin, . -Howard and Crocker, and the question arises, whether the award, under these circumstances, was conclusive on the lessors of the plaintiff.

The facts relative to the possession of that part of the lot now in question, have already been stated. Cobb went into possession in June, 1801, cleared and sowed, that season, four or five acres, and was served with an ejectment, in which Griffin was lessor, in August, 1801.

The 3d section of the act (1 N. R. L. 213.) declares u the award, after the expiration of two years from the making thereof, binding and conclusive on all persons, except such as shall, within the said two years, dissent from the same, and give notice thereof to the said commissioners, or file the same in the office of the clerk of Onondaga, and shall, also, if not in the actual possession of such land, within three years after such award, commence a suit or suits, either at law or in equity, to recover the land, orto establish his right to the same, and shall prosecute such suit or suits to effect, in which case such award or determination shall not operate as a bar to such suit or suits ; but if no such suit or suits are brought within the times aforesaid, and prosecuted to effect, then the said award or determination of the commissioners shall be final and conclusive.” The 7th section of the act provides, “ that if the party dissenting, in any of the cases aforesaid, shall be in the actual possession of the premises, then, and in every such case, the award or determination of the commissioners so dissented from, shall, as to the party so dissenting, be considered of no effect, and in every such case, unless the party in whose favour such award or determination shall be made, shall, within three years after such award is made, commence a suit, either at law or in equity, to recover the land, or to establish his right to the same, and shall prosecute such suit with effect, then such person in whose favour such award or determination is made, and his and her heirs, shall forever be barred of all right, title and claim in and to the land concerning which such award or determination is made.” It cannot, I think, admit of a doubt, that one of the parties is concluded by the award, and the proceedings which have taken place» .The dissent by Griffin and others, was filed the 18th of February, 1801. Cobb's possession under J- B. Clark, com- tnenced in June, 1801. In such a case, was it necessary for those against whom the commissioners had decided, to bring their action within the three years after the award ? We have decided, in Jackson v. Huntley, (5 Johns. Rep. 59.) that where there was no possession on the part of those in whose favour the commissioners awarded, within three years after the award, it was not a case in which the party dissenting would be under the necessity of bringing a suit; that it was the intention of the legislature to’ secure to the party claiming adversely to the award, an opportunity to assert his title ; and that it was not the intention of the act to oblige the party to proceed as for a vacant' possession, in which the title would not come in question. And it was observed by the Judge who gave the opinion in that case, that by the 3d section of the act, the party in whose favour the award is given, or the party dissenting, must be in the actual possession of the premises awarded, at some period before the limitation expires, or the statute cannot attach. I cannot entertain a doubt, that the party against whom the award was made in this case, was bound to take notice of such a possession as Cobb’s. It was commenced and carried on with notoriety, within a few months-after the award was made and dissent filed ; and it was incumbent on those dissenting, to proceed at law or in equity, to establish their title, by actually instituting a suit, and proceeding in it to effect. It would be unreasonable, where the intention of the legislature is so manifest, to have the title to these military lots speedily and expeditiously settled, to hold, that the party dissenting need not bring a suit to establish his right, because the possession was not coeyal with the award or dissent. The case of Jackson v. Huntley repels such an idea. But what appears to be decisive in this case is, that Griffin actually commenced an ejectment against Elnathan Cobb, who was in possession of the premises under his father, Jabez Cobb, in August, 1801, and that suit was decided against Griffin. He cannot, after this, pretend that ho was ignorant of Cobb’s possession, or that the suit was not brought under the limitations of the act. Had Cobb’s possession commenced covertly, shortly .before the expiration of the three years, and the party dissenting had thus been deprived of an opportunity of asserting his right, the case would have been materially different. The consequence of the suit is, that it not having been prosecuted to effect, the award of the commissioners is final and conclusive against the party dissenting. . There is, however, another view of the case, which appears tó me equally decisive.

If the party dissenting in this case is to be deemed in the actual possession of the premises, and the award as to him was inoperative, so as not to conclude his rights; then the party in whose favour the award was made, was bound to prosecute a suit or suits to effect, within three years after the award. The object of the legislature, as has been before observed, was to settle the disputes as to these military lands, by a speedy and expeditious method, in consequence of the .manifold frauds and forgeries which had taken place; and the provisions of the statute were designed, in each case, as a short statute of limitation. Thus, under the third section, the requisition that the party against whom the award is made, if not in the actual possession, shall commence a suit within three years after the award, to recover the land or establish his right, and shall prosecute such suit to effect, admits of no other construction than this, that a single trial of the title on the merits shall be decisive. So, too, under the 7th section, if the party in whose favour the award is made, is out of possession, and his adversary against whom it is made, is in possession, it is necessary that the party out of possession should bring his suit, and prosecute it to effect, that is, succeed in establishing his right, within three years from the time of making the award, or he will be barred; but if he succeeds, and a judgment passes for him, then having an award in his favour, and having succeeded at law, the-recovery would be conclusive upon the right. In the present case, J. B. Clark having, within the three years, instituted two suits in ejectment against persons holding under Griffin & Battle, his rights having been decided upon ; and having prevailed, his title to those parts of the lot is conclusively established. Clark did not bring any suit with respect to the premises; he was saved the necessity of doing so, by Grffin,s bringing a suit against Cobb, who held under Clark. Now it appears to me that this suit is within the spirit, equity, and intent of the statute. It was a suit, within the three years, for the establishment of the title ; and, in ef-feet, it was the same thing, whether Clark brought the suit, or whether he defended it by his tenant. It was a decision upon the merits. The suit by Griffin, though not strictly required, necessarily superseded any suit by Clark. The latter had three years to bring his suit, but by obtaining possession, and especially after a suit against Cobb, eventuating in favour of Clark?s title, the latter could bring no suit. I am decidedly of opinion, that although it is not within the words of the statute, it comes within its purview and meaning, and operates as a bar to any other suit by Griffin. In any other action than an ejectment, a single trial and decision of the right, is conclusive upon the parties and their privies. The legislature meant, with regard to the military lots, that a trial within the specified time, which should eventuate effectually, should also be a bar. That trial has been had, and it must be decisive.

The next question is, as to the effect of the instrument on the back of the soldier’s discharge. For value received, hé makes over and confirms unto George, Bartholomew, and John Fisher, and unto their heirs, &c. for ever, the 600 acres of land due him from the public, as a soldier in Col. Lamb's regiment of artillery, and affixes his hand and seal, the 19th of February, 1784. This instrument was duly filed 1st of September, 1794. The objections are : 1st, that the grantor was not identified ; 2d, that there are no words of conveyance; 3d. that it appears by the balloting book, that Christian Brandt was a soldier in the first New-York regiment, (Van Schaick's,) and, therefore, nothing passed, as the grantor had no lands as a soldier in Lamb's regiment.

I will consider the second objection first. It is a cardinal rule, in the construction of deeds, that the intention of the parties shall prevail, if by law it may. The conveyance from Brandt was operative as a bargain and sale ; the consideration expressed is “ for value receivedand in Jackson v. Alexander, (3 Johns. Rep. 484.) the very point was adjudged, on words precisely like these, and that decision is the law of this Court. In the same case it was decided, that in conveyances under the statute of uses, it is enough, if the granting words are sufficient to raise a ,use, for the statute then performs the task of the ancient livery of seisin. But the question as to what words are sufficient to raise a use, was more fully considered in Jackson v. Fisk and another. (10 Johns. Rep. 456.) There the words of grant were, “I, C. C. have remised, released, and for ever-quitclaimed;” and it was held that these words were sufficient to raise a trust or use, for the benefit of the bargainee; and that, by the statute, the use was transferred into possession ; and it was also held, that the words “ release and assign,” had the same effect. It was there also decided, that no technical precise words were required to raise a use, and that if the words amount to a present contract of sale, or bargain, a trust is instantly raised, on which the statute operates. To the case there referred to, may be added Doe v. Salkeld, (Willes’ Rep. 675.) and Goodright v. Moss, [Cowp. 593.) These cases are decisive of the question. The grantor here, “ for value re* ceived, makes over and confirms unto the grantees, their heirs, &c. for ever;” the intention is clear and manifest, and the words denote a present contract of sale.

The next point to be considered is, whether Brandis interest in the lot to which he was entitled, passed by the grant, although he was not a soldier in Lamb’s regiment. The words are “ the 600 acres of land due me from the public as a soldier in Col. Lambas regiment of artillery.” It has not been controverted, that there would have been a sufficient description, if no mention had been made of the regiment. In the case of Jackson v. Alexander, the description, was “ my right and claim on the public for 600 acres of land.” No objection was made, that the description was not sufficient, and there can be no doubt it was. The donation of the land had been solemnly promised by the legislature, to the privates of the regiment to which Brandt belonged. The lands were, therefore, due to him, and it could have meant only the lands thus promised and after-wards granted. The principles laid down in Jackson v. Clark, (7 Johns. Rep. 217.) apply to this case. If there are certain particulars once sufficiently ascertained, which designate the thing intended to be granted, the addition of a cir-cumstanee false or mistaken will not frustrate the gra.nt. As there was a devise of a house called the corner house in. Adover, in the tenure of B. & H., when it was in the tenure of B. & N., it was held that the corner house in the tenure of B. & JV. passed, the addition of the tenure being surplusage. But when the description includes several particulars, all of which are necessary to ascertain the estate to be conveyed, no estate will pass, except such as agrees with the whole description. Now, we have seen that the grant of the 600 acres due the grantor from the public, would have been sufficient to pass the lot; the addition of the regiment was, therefore, surplusage, and may be rejected. This case is even stronger ; the grant was upon the back of his discharge, and necessarily referred to 'it, for that was the evidence of his being a soldier, and of the corps in which he had served.

Was the grantor sufficiently identified ? This point was fairly submitted to the jury, and I see nothing to.warrant us in granting a new trial, if no improper evidence has been admitted. Two objections are made to the testimony ; 1st. that John Fisher was an incompetent witness; and, 2d. that the receipt for the consideration of 4l. 8s. and the admission that 61. had been paid on the 19th of February, 1784, which receipt purports to be given on the 1st of August, 1795, and to be witnessed by Benjamin De la Vergne and Timothy Bedel, was not proved by cpmpetent evidence.

There can be no objection to Fisher’s competency ; he was released by the defendant,, and although he was not the defendant’s immediate grantor, yet the release would operate pro tanto, and preclude the, defendant from any resort to him, or to Clark. The' objection, then, went only to his credit. r

But the objection to the admission of the receipt, proved only by a witness, who sWore to Benjamin De la Vergne’shand writing, was well taken. De la Vergne was alive, and within the jurisdiction of the Court, and,although very aged, and probably incapable of attending the trial, yet he does ,not appear to be incapable, from the state of his mind, of testifying. He should have been examined, either under an order of the Court, or a Judge, or under the statute, and then he might have been cross examined. The rule is inflexible, that evidence of the hand writing of a witness is inadmissi ble, when the witness is in a situation to be examined, for it is not the best evidence. It is impossible to say what weight the jury attached to the facts admitted in that paper; they were material facts, and so was the genuineness of the receipt itself, as its execution was entirely denied on the trial, by the positive evidence of Brandt.

This would be a decisive ground for a new trial, was not the plaintiff concluded by the trial and judgment in 1802.

Motion for a new trial denied, with costs.