Jackson ex dem. Cooper v. Cory

8 Johns. 385

• Court: New York Supreme Court
• Decided: October 15, 1811
• Status: Published

Opinion

Per Curiam.

The people of the county of Otsego

had not a capacity to take by grant. They were not a corporate bod}' known in law. It is a settled rule of the common law, that a community, not incorporated, cannot purchase and take in succession. (Co. Litt. 3. a. 10 Co. 26. b. Com. Dig. tit. Capacity, B. 1.) The act of 1801, (Laws, vol. 1. p. 561.) declaring valid certain conveyances to the supervisors of a county, does not apply to this case, for this was not a conveyance to the supervisors. A grant, to be valid, must be to a corporation, or some person certain must be named, who can take, by •force of the grant, and who can hold either ip. his own right, or as' trustee. (Perkins, s. 55. 2 Johns. Cas. 324.)

Nor can the act of 1806, authorizing the supervisors to sell the premises, be construed to devest the lessors of the plaintiff of their right. It is not to be presumed that the legislature intended to authorize the supervisors, td convey any thing more than the right and title which they might have had in the lot. The act was, no doubt, passed tinder the impression that the supervisors had a legal conveyance for the premises; and from the principles contain-, ed in the case of Jackson v. Catlin, (2 Johns. Rep. 248.) and which has since been affirmed in. the court for the correction of errors, conveyances by statute are not to be Construed to pass any other or different right than that which the party before possessed. To take away private property by public authority, even for public uses, without making a just compensation, is against the fundamental principles of free government,• and this limitation of power is to be found, as an express provision, in the constitution of the United States.

For these reasons, judgment must be rendered for the plaintiff. .

Judgment for the plaintiff.