Thompson, Ch. J.
delivered the opinion of the court.
The lessors of the plaintiff derive title under Ann Bridges, who was one of the original patentees ; and their right to recover is made out, unless the title of Ann Bridges has been’ devested, by her own act, in conveying it away, or the right to • recover in thjs action has been lost by lapse of time. The vast amount of property, involved in the questions to be settled by this case, has increased their interest, and has drawn forth from the counsel, on the argument, a very able and elaborate discussion. The conclusion to which the court has arrived, and the point on which the decision is unanimously placed, has rendered it unnecessary for me to [109] notice many of the questions which were brought under examination on the argument.
It is contended, on the part of the defendant, that Ann Bridges, who had intermarried with Joshua Hunloke, parted with her title by the deed, executed by her and her husband, to Peter Fauconier, bearing date the 12th day of February, 1711. It is objected, however, on the other side, that this deed was not acknowledged in such a manner, as to devest the title of a feme covert. The acknowledgment purports to have been made before John Blanchard,; and his certificate, endorsed on the deed, is in these words: “ This day came before me, one of his majesty’s justices for the county of Essex, the within mentioned Joshua Hunloke, and Ann his wife, to acknowledge this indenture to be their acts and deed, this 19th day of February, 1711. John Blanchard. In the deed, the grantors are described as of Elizabeth-Town, in the province of- East New-Jersey, and the grantee as of the city of New-York. At the time this acknowledgment was made, we had no colonial act on the subject. This has given rise to a very interesting discussion of the question, how far we were governed and controlled by the common law, in the acknowledgment of deeds by femes covert, and by which a feme covert could be devested of her title only by fine, or some matter of record; and on which proceeding she was required to be examined privately, or by the court, to ascertain whether she has parted with her estate freely, and without compulsion from her husband. But there being some diversity of opinion on th,e bench, how far the common law mode of proceeding was at that time in force here, it has been thought unnecessary, at present, to decide that point. It may, however, I think, be assumed, that, in point of fact, and as matter of practice, the common law, in this respect, has never been adopted with us; and it may not be amiss, briefly to observe, that, in some of our sister states, which were British colonies, and equally with us subject to the common law, the mode of acknowledgment adopted in this case, has been substantially recognised and sanctioned. In the case of Davey and Wife v. Turner, (1 Dall. 11.) decided in the supreme court of Pennsylvania, as early as the year 1764, it [110] was placed on the ground of usage and custom, and the maxjm; communis error facitjus. The force and effect of such usage was again noticed in the case of the Lessee of Watson v. Bailey, (1 Bin. 470.) where Yates, J. very justly observes, that the maxim just alluded to, had great weight, when the most injurious consequences would flow from counteracting it. Lord Coke says, (2 Inst. 28.) usage has prevailed, even against magna charta. In the supreme court of Massachusetts, Ch. J. Parsons, in the case of Fowler v. Shearer, (7 Mass. Rep. 20.) speaking of an usage in ..that state, as to conveyances by married women, says, that estates never have there been conveyed by fine, in which the wife might be examined, and, by her consent, be barred by the fine; that whatever was the origin of the usage, it could not be disallowed, without shaking very many of the existing titles to real estates; and that it must now be considered as the law of the land. But, as the decision of the case before us is placed entirely upon the colonial act of 1771, (Van Sch. ed. Laws, 611.) it is unnecessary for me further to notice the usage on this subject, or to inquire hoxv far we were then bound by the common law. I have barely referred to some cases that have arisen in other states, where a similar usage has been sanctioned, to. show that the common law mode of conveyance, by fine, was not in practice there, nor, most likely, in any of the British American colonies; What part of the common law of England was in force here, before the American revolution, has been a subject of very considerable doubt and difficulty; (Smith's Hist. of N. Y. 372. 381.) and is not now intended to be decided.
The colonial act to which I have referred, purports to be an act to confirm certain ancient conveyances; and recited that, “ whereas it has been an ancient practice in this colony to record deeds concerning real estates upon the previous acknowledgment of the grantors, or proof made by any of the subscribing witnesses before a member of his majesty’s council, a judge of the supreme or county court, or a master in chancery, and sometimes before a justice of the peace. And, whereas, there are lands and tenements held under the deeds of femes covert, not acknowledged in manner aforesaid, and yet made bona fide, and for valuable consideration, [111] the purchasers whereof, and those holding under them, ought to be secured, both in law and equity, against the respective - grantors, their heirs and assigns. It was, therefore, enacted, that no claim to any real estate, whereof any person is now actually possessed, whether as tenant in common, or otherwise, shall be deemed to be void, upon the pretence that the feme covert granting the same, had not been privately examined before any of the public officers or magistrates aforesaid.” The act, then, proceeds to direct the manner in which deeds, thereafter to be made, should be acknowledged and recorded. The provisions of this act apply so directly to the deed in question, that all objections to the title derived under it must cease, unless the act itself can be got rid of. The inference drawn by the counsel from the form of the certificate of acknowledgment, (that the parties came before the magistrate to acknowledge, &c.) that no acknowledgment, in fact, was made, cannot be correct. An acknowledgment was deemed necessary, andt the parties went before the officer for the purpose of making it; and it would be a most unreasonable conclusion, that it was not, in fact, done. The officer could hardly have been guilty of so absurd and nugatory an act, as to give a formal certificate, that the parties came before him to acknowledge the deed, if they did not actually acknowledge it. Nor are we to conclude, that because the certificate does not state a private examination of the wife, that no such examination took place. After such a lapse of time, this might, and ought to be, presumed; especially as there was no statute in any manner prescribing the -form of the certificate. But the act of 1771 meets the case, and declares that the estate shall not be deemed to be void, upon the pretence that the feme covert granting the same had not been privately examined before the officer. It is not necessarily to be inferred from this provision, that it applied to cases where no private examination had, in fact, been made. The act was intended to confirm ancient conveyances, and to prevent the want of evidence of a private examination being set up to avoid the deed, presuming the evidence of the fact to be lost by the lapse of time.' Had it been intended to make good a deed
P [112] where no private examination at all had taken place, it would, probably, have been so declared in terms, and not have spoken of this defect as a pretence, which, by no means, necessarily, implies "an. admission of an entire omission of such examination. This construction is strengthened by the provision in the next section, that in all acknowledgments, thereafter, the officer taking the same shall set forth, in his certificate, that the wife had been privately examined, and confessed that she executed the deed freely, without any fear or compulsion of her husband. Assuming, then, that a private examination was, in fact, made, though omitted to be set out in the certificate, the great object in view at the common law has been answered, to wit, to ascertain whether the wife acted under fear or compulsion. In a conveyance by common recovery, the feme covert was not examined privately, she being in court, or presumed to be there. The examination of the judges destroyed the presumption of the law, that she was'acting under the coercion of her husband. (10 Coke, 43. 2 Roll. Abr. 395.)
Several .objections have been taken to this act, however, which it is necessary to notice. It is said to be against the express provisions of the Charter of the Duke of York of 1683, which declares that no estate of a feme covert shall be sold or conveyed, but by deed acknowledged by her in some court of record, the woman being secretly examined, if she doth it freely, without threats, or compulsion of her husband. (2 N. R. L. App. IV.) If this charter was in force here when the acknowledgment in question was taken, and when the act of 1771 was passed, there would be weight in the objection ; but, I believe, it has been the general, if not the universally received opinion, that this charter was not in force here after the revolution of 1688. In the journals of the general assembly of New-York, of the 24th of April, 1691, we find the following proceedings :
“ Upon an information brought into this house by several members of the house, declaring, that the several laws made formerly by the general assembly, and his late royal highness, James, duke of York, &c.: and, also, the several ordinances, or reported laws, made by the preceding governors and council, for the rule of their majesties’ subjects within [113] this province, are reported, amongst the people, to be still in force : resolved, nemine contra dicente, that all the laws consented to by the general assembly under James, Duke of York, and the liberties and privileges therein contained, granted to the people, and declared to be their rights, not being observed, and not ratified and approved of by his royal highness, nor the late king, are null, void, and of none effect; also the several ordinances made by the late governors and councils, being contrary to the constitution of England, and the practice of the government of their majesty’s other plantations in America, are, likewise, null, void, and of none effect, within this province.” (1 Vol. Journals, 8.) We do not find this charter published in any edition of the colonial laws, as we most undoubtedly should, had it been considered in force. By a resolution of the general assembly of the 12th of November, 1709, (1. Vol. Journals, 267.) Mr. Bradford is directed to print all the acts of the general assembly of the colony then in force since the arrival of Col. Stoughton; (January, 1689.) and the charter of the Duke of York would, undoubtedly, have fallen within the scope and purview, if not within the letter of this resolution ; for that charter purports to be enacted by the governor, council, and representatives, in general assembly, and by the authority of the same. That the charter of the Duke of York, as such, was not considered in force after the revolution of 1688, is very obvious; because the general assembly of the colony, in 1691, passed an act declaring what are the rights and privileges of their majesties’ subjects inhabiting within the province of New-York, in which many of the provisions in the charter of the Duke of York are incorporated, and, doubtless, all that were intended to be in force; among others, the very provision relative to conveyances by femes covert. (Brad. edition of the laws, 2. 5.) But this act was repealed by the king on the 11th of May, 1697, as appears by a marginal note in Van Schaack's edition of the laws, (p. 5.) and which was made pursuant to the authority given him by the act of 1772, (Van Schaack's edition of the laws, 676.) appointing him to revise and digest the laws of the colony. The charter of the Duke of York not being included in this revision, affords irresistible evidence, that it [114] Was not deemed to-be in force here; for he was' authorized and required to revise, digest, and cause, to be printed, all the laws, from the happy revolution, down to the end of the then session, (1772.) From this view of the acts and proceedings of the colonial legislature, we may very safely conclude, that in '1711, when the acknowledgment in question was taken, there was no charter, or statute regulation en the subject in force here ; but that a loose and unsettled practice prevailed, as is set forth in the recital to the act of February, 1771. ■ It, therefore, became highly necessary and proper, that what had been done under such usage, or practice, should receive legislative sanction.
It has also been contended, that this act interfered with thé vested rights of' the heirs of Ann Bridges; and, on this ground, ought to be declared null and void. Without entering into the question, of the authority of the court to set, aside the act altogether, it is certainly a delicate power, and ought to be exercised cautiously, and in extreme and palpable cases only. We do not consider the one before us as one of that class. It is an act, confirming and quieting the title of bona fide purchasers, and sanctioning an ancient custom, as to the form of acknowledgment. Such an act ought to receive a liberal and benign interpretation, for the purpose of securing titles derived under such deeds. In Jackson v. Schoonmaker, (2 Johns. Rep. 234.) this court, in speaking of the loose manner of taking the proof of deeds, prior to the act of 1771, say, that the practice in the colony before that time, is, undoubtedly, to be regarded on a question, touching the authority and validity of an ancient deed. By the custom, in some cities and boroughs in England, a bargain and sale, by the husband and wife, where the wife iá examined by the mayor, or other officer, binds the wife, after the husband’s death. (2 Inst. 673,) By the statute 34 Hen. VIII. ch. 22. all such customary conveyances are declared to be of force, notwithstanding the statute, 32 Hen. VIII. ch. 28. which required the conveyance to be by fine, levied by the husband and wife. The statute 34 Hen. VIII. refers to, and sanctions certain customs, which had existed in some cities, boroughs, and towns, as to taking and acknowledging deeds ; and declares that the same shall stand. [115] any thing in the act of 32 Hen. VIII. to the contrary not* withstanding. So there is a custom in the town of Den-high, in Wales, that a feme covert, with her husband, may aliene her land there, and it shall bind the wife, and her heirs, as a fine does. This custom is not taken away by the statute of Wales, 27 Hen. VIII. ch. 28. Because, as is said by the court, the custom is reasonable, and agreeable to some customs in England, for the assurance of purchasers. {Dyer, 363.) Thus, we see, that, in England, certain customs, as to acknowledgments by femes covert, have been recognised and sanctioned by acts of parliament, notwithstanding such customs were contrary to the course of the common law. But this colony act receives very considerable strength and confirmation, from the 35th article in our constitution, (1 N. R. L. 41.) which declares, that such parts of the common law of England, and of the statute law of England, and Great Britain, and of (he acts of the legislature of the colony of New-York, as, together, did form the law of the said colony, on the 19th day of April, 1775, shall be and continue the law of this state, subject to such alteration as the legislature shall, from time to time, make concerning the same. The act now in question comes directly within this article; and may fairly be considered as expressly adopted by the constitution. It had very recently been passed, and must have been within the knowledge of. the framers of the constitution, who were men too enlightened and upright to infringe upon vested rights. But this article affords a fair inference also, (if it had been thought necessary to enter into that question,) that the whole body of the common law was not considered in force and operation here; otherwise the article would not. have spoken of a part. It adopts such part of the common law, which, together with the statute, law, did then form the law of tjje colony ; and how is this to be ascertained ? It must be, either by showing an express adoption, or an implied one, to be collected from the course and practice of the courts, and the usages and customs which prevailed in the government. As it respects the acknowledgment of Reeds, by femes covert, the common law modes, by fine and recovery, never were in use here. If it were necessary to [116] 'pursue this question further, the act of 1771 might be str0ng]y fortified, by referring to what has taken place in other states, in most of which similar laws have been passed; and, from aught that appears, have been sanctioned and upheld by their courts of justice.
But it has been argued, that, admitting the validity of the act, no such possession has been shown, as to bring the present case within its provisions. Before noticing the facts in relation to the possession, it will be proper to examine the act itself, and see how broad a construction it will admit. It is, in general, true, that the preamble of a statute is a key to open the mind of the makers, as to the mischiefs which are intended to be remedied by the statute. This rule must not, however, be carried so far as to restrain the general words of an enacting clause, by the particular words of the preamble. (6 Bac. Ab. 380, 381.) Although the preamble cannot control the enacting part of a statute, which is expressed in clear and unambiguous terms, yet, if any doubt arises on the words of the enacting part, the preamble may be resorted to, to explain it. (4 Term Rep. 793. Sir William Jones, 163. Palm. 485.) In the preamble to this statute, nothing is said with respect to possession of the land, nor any thing from which it could be inferred, that the act was intended to he confined to deeds for lands in actual possession, at the tiirtc of passing the act. After reciting the practice that had prevailed with respect to acknowledgments, it recites that there are lands and tenements held under the deeds offemes covert, not acknowledged in manner aforesaid, and yet made bona fide, and for valuable consideration. By this it would seem, that the Cases intended to be embraced, were those where the purchase was bona fide, and for valuable consideration; that in such cases, the purchasers, and those holding under them, ought to he secured, both in law and equity, against the grantors, their heirs and assigns. The unimproved state of the lands in the colony, at that time, affords a pretty strong ’ argument that the intention of the legislature was to confirm and secure the title in all such cases. To restrict the act to those cases only where there was a pedis possessio, would be providing only for a small pro[117] portion of the cases probably intended to be embraced; as, comparatively speaking, but a small part of our lands were, at that time, under actual cultivation and improvement. ' With such a preamble, and talcing such to be the situation of the country, let us apply the enacting clause. It declares that “no claim to any real estate whereof any person is now actually possessed, whether as tenant in common or otherwise, shall be deemed void, upon pretence that the feme covert granting the same had not been privately examined,” &c. If this clause was to be construed without any reference to, or aid from, the preamble, I should think it would apply only to those cases where the land for which the deed was given was in actual possession. But considering the enacting clause with an eye to the preamble, it would be no very strained construction to apply the word possessed, to the claim or title, instead of the land itself; and then there would be perfect harmony between the preamble and the enacting clause. But it is not necessary, in this case, to resort to this construction. It has been noticed only for the purpose of showing, that all acts of ownership exercised over the land should be viewed as the acts of one having title, and, therefore, liberally construed, and not as the acts of one setting up a possession in opposition to the title, which are to be construed strictly. It is not denied that a regular and complete paper title has been deduced to the defendant, and those under whom he claims, from Peter Fauconier, the grantee in the deed from Ann Bridges and her husband. Nor is it pretended that there has ever been any actual possession in hostility to this title ; and it is a settled rule of law, that where there is no adverse holding, the possession is deemed to be in him who has title. This doctrine has been extended by this court farther, perhaps, than the ‘English rule would admit. In Jackson v. Sillick, (8 Johns. Rep. 262.) it is held, that where a feme covert is the owner of wild and uncultivated land, she is considered, in law, as in fact possessed, so as to enable her husband to become a tenant by the curtesy. The observations made by the court in that case apply, with peculiar force, to the present. It is said there was no pedis possessio, or possession in fact, of the premises, in the popular sense of the words, by ‘ the [118] husband or his wife, during the coverture; for the lands re» uiained, as new lands, wild and uncultivated, though the title clearly existed in the wife. The question is, was she not considered as seised in fact, so as to enable her husband to become a tenant by the curtesy ? To deny this would be extinguishing the title of tenant by curtesy, to all wild and uncultivated land. It has long bee"n a settled point,, that the owner of such land is to be deemed in possession so as t® maintain trespass. The possession of such property follows the title, and so continues, until an adverse possession is clearly made out. This is the uniform doctrine of this court. Adopting this rule of construction, the act of 1771 would be fully satisfied without any acts of ownership exercised over the land; but the case before us does not-rest even here; for, as early as in the year 1768-, a part of this tract, under the title derived from Ann Bridges, was sold to Lewis Groat, and actual possession taken of the same, which has continued down, ever since, under title derived from him. Groat, by his deed, became responsible, and covenanted to pay the quit refit on the whole patent; and, for many years thereafter, he actually did pay the same. In the same year, about 8.00 acres more of this tract were sold to H. De Groff, and actual possession taken', and improvements made, and it has been ever since held under the same title. But the partition which was commenced in the year 1769, and pending, at the very time the act of 1771 was passed, was a still more direct act of ownership exercised over the whole tract. This parti ton was made under the act of 1762, (Van Schaack's ed. 403.) according to the provisions of which various acts of public notoriety and ownership were made indispensably necessary. Among others, a survey of the whole tract to be divided was made. All this was done without any one appearing to set up or represent the claim of Ann Bridges, upon which the lessors of the plaintiff now place their right to recover, although public notice of such proceedings was given in two newspapers, for twelve weeks, directed to all persons interested in the tract.
Without entering moré particularly into the evidence of actual possession, we feel perfectly persuaded, that enough [119] has been shown to bring the present case within the spirit, true intent, and meaning of the act of 1771; and that the defendant is entitled to all the benefit and protection which it affords. Judgment must, accordingly, be rendered for the defendant.
Judgment for the defendant.