Jackson ex dem. M'Crackin v. Wright

14 Johns. 193

• Court: New York Supreme Court
• Decided: May 15, 1817
• Status: Published

Opinion

Spencer, J.

delivered the opinion of the court. The decision of the judge at the circuit, was correct, on two grounds :

1. The grant, under the private act of the 2d of April, 1806, to Peter Boise, of 200 acres of land, part of lot 60, in Sterling, cannot, in any point of view, be considered as lands coming within the description and intention of the parties, as manifested by the deed from Boise to the lessor of the plaintiff. The deed grants the military right, or parcel of land granted as bounty lands for services during the revolutionary war, and is dated in July, 1794. The lands in question were not granted as bounty land; 1st. Because it is declared to be a gratuity for services, and sufferings : 2d. The bounty lands referred to in the deed were such as had been promised by the state, under the concurrent resolutions of the legislature, and would have comprehended 500 acres. (2d Greenl. ed. Laws, 332.)

2. The deed from Boise to M'Crackin is a bargain and sale, and quit claim, and he had then no title to convey in the premises ; and no title, not then in esse, would pass, unless there was a warranty in the deed; in which last case, it would operate as an estoppel, for avoiding circuity of action. (Co. Lit. sect. 446. 265. a. and b. 3 Johns. Rep. 366.)

It is a mistake to suppose the deed operative under the act, (2d Greenl. ed, Laws, 332.,) for the conveyances rendered valid under the fifth section of that act, are such only as were given for lands granted under that act.

Motion denied.