Jackson ex dem. Miller v. Winslow

2 Johns. 80

Opinions

Spencer, J.

David Miller, the original grantee of the lands in question, was a soldier, serving in the line of this state, in the army of the United States, in the late war with Great Britain, and died previous to the 27tli of March, 1783; and by the 1st section of the act of the 5th oí April, 1803

Footnotes

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* the title vested in him at the time ofhis death. His father, Philip Miller,who died since the passing of-that act, wouldtake as his heir,† unless there was some person holding as a bona fide purchaser, under his eldest brother, Peter Miller.‡ If such be not the case,then, as it appears that'f here are seven other persons who were the issue of Philip Miller, and co-heirs with Peter Miller, not made lessors, the plantiffs will not be entitled to take possession of more than one-eightli part of the lands, for which the action is brought. If there was a person who held as a bona fide purchaser in this case, it must be Philip Hoaghtiling, to whom, as the case states, Peter'Miller gave a deed, and I presume, for the premises in question

I confess that Icannot well understand the plaintiff's counsel, in supposing that, in 1801, the title to this land was vested in the state. The act of 1803, whether considered as a declaratory act or not-, absolutely vests the title in David Miller at the time of his death.' Whether it before vested or not, I am not to enquire; the legislature had plenary power toso vest it; and in the case of Jackson ex dem. Sherwood v. Phelps,* the court considered the act as relating back to tbe time of issuing the patent. The conveyance by Peter Miller, the elder brother of David/ had it been valid, would have changed tbe rule of descent,. I am constrained- to say it was void-. The case of Jackson ex dem. Dunbar and Thorn v. Tod,† is very analogous to the present. There, a conveyance having been made by Platt, the real owner,, to- Thorn, it was held to be-void, in consequence-of a possession., at the-time, under an adverse title. It is true, I did not agree in the opinion delivered; but my dissent was not founded on any different view of the law, but of the facts constituting the adverse possession. I supposed- Todd's relation to- Isaacs was not made out. Here,. Crouse was in possession of the land, under a purchase, and claiming title, when Peter Miller gave the deed to Hoaghtling; which is, therefore void. If this deed was void, then there was no person holding as- a bonafi.de purchaser under the-elder brother, for a void deed is as none.

It then follows necessarily,¿hat the third rule ofdescent, prescribed by the statute of the 23d of February, 1786,. applies, and the father of David tools, as his- heir. He having died since 1803, and Peter Miller being one of the eight persons entitled upon his death, and the others not having been made lessors, he can only have judgment for one undivided eighth part of the premises.

Tomkins, J. Livingston, J. and Thompson,..!, concurred..

L N. Y. v. 3. p. 401.

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L. N. Y. v. 1. p. 46.

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Sec. 8. v. 3. p. 399, Laws.

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3 Caines 67.

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2 Caine, 183.