Thompson, J.
On the argument of the present motion, a •great variety of questions have been presented to the consideration of the court. I shall, however, confine myself to one or two of them, which go most directly to the merits of the case, and which, in my, judgment, are sufficient to warrant the granting of a new trial.
This action was brought against die defendants on a penal statute, for purchasing, as is alleged, the pretended right of Maria Herkemer in De Bruy’s patent, and which she claimed under the will of Stephanus Van Alen. It becomes necessary, therefore, to inquire, whether Mrs. Herkemer, at the time she executed the deed in question, had any right or [357] which she could con-title to lands in De Bruy's patent vey.
[Here the judge stated the clauses in the will.]
It appears from the case, that as lately as the year 1799, the plaintiff said hie was willing to pay Mrs, Herkemer the legacv given her by the will, which was equivalent to an acknowledgment that it never had been paid, and by the operation of the will, the title and right to one-eighth of the land became vested in Mrs. Herkemer. It is said, however, that the plaintiff claimed title to the land under his mother, who was one of the daughters of Stephanas Van Alen, and under that clause in the will which it is contended gives to any of the daughters the right of electing to purchase the land. It is of but little importance as it respects the present suit, under what title the plaintiff claims, or whether that title be valid or not, provided the land was actually occupied, and the possession held adversely to Mrs. Herkemer's claim. But if Mrs. Herkemer was in possession, either by herself or her tenant, or if the lands were unoccupied, there can be no doubt the defendants have not incurred any penalty in purchasing.
That Mrs. Herkemer had possession of some land within De Bruy's patent is not denied. Isaac Van Alen was a tenant under her, though the quantity of land occupied by him does not appear, but it was deemed of some importance by the plaintiff, because he expressed a wish to purchase it from Mia. Herkemer, and declared his intention to apply to her agent for that purpose. Here was another recognition of Mrs. Herkemer's right in the patent. The deed given to the defendants would unquestionably vest in them Mrs. Herkemer's title and right to all the lands possessed by her tenant. But it is said the deed goes farther, and includes lands in the possession of the Van Dycks. The description of the premises, as contained in the deed, was general, because Mrs. Herkemer's claim under the will of Stephanas Van Álen, was that of an undivided right, and as a tenant in common with her co-devisees, as appears from the will. This will account for that part of the description which [358] speaks of land possessed- by the Van Dyck family. If the Dycks had, by lapse of time, or otherwise, acquired an exclusive and adverse possession to a given portion of the lands of Stephanus Van Álen in this patent, so as to prevent the operations of the deed from Mrs. Herkemer, as to that part, this would not vitiate the deed with respect to the other lands where no such impediment existed. It cannot be pretended that if A should convey to B, by metes and bounds, 200 acres of land, and on a survey it should be ascertained that 10 acres were held adversely by D, that the deed would be void as to the residue. The judgment of law, I apprehend, upon such a case, would be, to pronounce the deed inoperative as to the land held adversely, and good as to the residue, 13 Vin. 58. The same rule of construction must be applied to the case before us. That the deed will be operative upon the land in possession of Isaac Van Alen is indisputable. How much that was is not shown ; it may be equal to Mrs. Herkemer’s right in the whole patent. But from aught that appears, the deed will attach to a much greater quantity ; fo,r the right of Stephanus Van Alen in De Bruy’s patent was 1200 acres of land, and an adverse possession in the Van Dycks is shown only to about 430 acres ; and it does not appear but that the residue may be unoccupied, and might be legally conveyed.
The circumstance of the defendants having purchased under the bona jide advice of counsel goes very far to remove any criminal intention from the transaction; and, in a doubtful case is, I think, entitled to considerable weight, for the purpose of shewing a want of the scienter required by the. act, in order to subject a party to the penalty. It is true that the defendants were apprised that the plaintiff was in possession of a part of the land, but they also knew that Mrs. ' Herkemer’s claim was only as a tenant in common ; and they probably were informed by their counsel that the possession of one tenant in common was the possession of all, and therefore, Mrs. Herkemer was so far in possession that she might legally convey even that occupied by the Van Dycks.' The threats on the part of the Van Dycks to [359] prosecute the defendants if they purchased, are not entitled to * , j-iÍj .j , i, much consideration ; for they had good reason to conclude, that those menaces originated from an extreme anxiety on the part of the Van Dycks to make the purchase themselves. Under these circumstances I cannot think the defendants have subjected themselves to the penalty which has been recovered against them. My opinion, therefore is, that a new trial ought to be granted, with costs to abide the event of the suit.
Tompkins, J. concurred.
Kent, Ch. J.
Several grounds are taken in support of the motion :
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Thompson, J.
On the argument of the present motion, a •great variety of questions have been presented to the consideration of the court. I shall, however, confine myself to one or two of them, which go most directly to the merits of the case, and which, in my, judgment, are sufficient to warrant the granting of a new trial.
This action was brought against die defendants on a penal statute, for purchasing, as is alleged, the pretended right of Maria Herkemer in De Bruy’s patent, and which she claimed under the will of Stephanus Van Alen. It becomes necessary, therefore, to inquire, whether Mrs. Herkemer, at the time she executed the deed in question, had any right or [357] which she could con-title to lands in De Bruy's patent vey.
[Here the judge stated the clauses in the will.]
It appears from the case, that as lately as the year 1799, the plaintiff said hie was willing to pay Mrs, Herkemer the legacv given her by the will, which was equivalent to an acknowledgment that it never had been paid, and by the operation of the will, the title and right to one-eighth of the land became vested in Mrs. Herkemer. It is said, however, that the plaintiff claimed title to the land under his mother, who was one of the daughters of Stephanas Van Alen, and under that clause in the will which it is contended gives to any of the daughters the right of electing to purchase the land. It is of but little importance as it respects the present suit, under what title the plaintiff claims, or whether that title be valid or not, provided the land was actually occupied, and the possession held adversely to Mrs. Herkemer's claim. But if Mrs. Herkemer was in possession, either by herself or her tenant, or if the lands were unoccupied, there can be no doubt the defendants have not incurred any penalty in purchasing.
That Mrs. Herkemer had possession of some land within De Bruy's patent is not denied. Isaac Van Alen was a tenant under her, though the quantity of land occupied by him does not appear, but it was deemed of some importance by the plaintiff, because he expressed a wish to purchase it from Mia. Herkemer, and declared his intention to apply to her agent for that purpose. Here was another recognition of Mrs. Herkemer's right in the patent. The deed given to the defendants would unquestionably vest in them Mrs. Herkemer's title and right to all the lands possessed by her tenant. But it is said the deed goes farther, and includes lands in the possession of the Van Dycks. The description of the premises, as contained in the deed, was general, because Mrs. Herkemer's claim under the will of Stephanas Van Álen, was that of an undivided right, and as a tenant in common with her co-devisees, as appears from the will. This will account for that part of the description which [358] speaks of land possessed- by the Van Dyck family. If the Dycks had, by lapse of time, or otherwise, acquired an exclusive and adverse possession to a given portion of the lands of Stephanus Van Álen in this patent, so as to prevent the operations of the deed from Mrs. Herkemer, as to that part, this would not vitiate the deed with respect to the other lands where no such impediment existed. It cannot be pretended that if A should convey to B, by metes and bounds, 200 acres of land, and on a survey it should be ascertained that 10 acres were held adversely by D, that the deed would be void as to the residue. The judgment of law, I apprehend, upon such a case, would be, to pronounce the deed inoperative as to the land held adversely, and good as to the residue, 13 Vin. 58. The same rule of construction must be applied to the case before us. That the deed will be operative upon the land in possession of Isaac Van Alen is indisputable. How much that was is not shown ; it may be equal to Mrs. Herkemer’s right in the whole patent. But from aught that appears, the deed will attach to a much greater quantity ; fo,r the right of Stephanus Van Alen in De Bruy’s patent was 1200 acres of land, and an adverse possession in the Van Dycks is shown only to about 430 acres ; and it does not appear but that the residue may be unoccupied, and might be legally conveyed.
The circumstance of the defendants having purchased under the bona jide advice of counsel goes very far to remove any criminal intention from the transaction; and, in a doubtful case is, I think, entitled to considerable weight, for the purpose of shewing a want of the scienter required by the. act, in order to subject a party to the penalty. It is true that the defendants were apprised that the plaintiff was in possession of a part of the land, but they also knew that Mrs. ' Herkemer’s claim was only as a tenant in common ; and they probably were informed by their counsel that the possession of one tenant in common was the possession of all, and therefore, Mrs. Herkemer was so far in possession that she might legally convey even that occupied by the Van Dycks.' The threats on the part of the Van Dycks to [359] prosecute the defendants if they purchased, are not entitled to * , j-iÍj .j , i, much consideration ; for they had good reason to conclude, that those menaces originated from an extreme anxiety on the part of the Van Dycks to make the purchase themselves. Under these circumstances I cannot think the defendants have subjected themselves to the penalty which has been recovered against them. My opinion, therefore is, that a new trial ought to be granted, with costs to abide the event of the suit.
Tompkins, J. concurred.
Kent, Ch. J.
Several grounds are taken in support of the motion :
1. It is alleged that there is a fatal variance between the deed stated in the declaration, and the deed exhibited on the trial, as to the date, and the description of the land. The deed produced bears date on the 8th of January, 1800, and the declaration states the bargain and sale to have been on the 1st of February following. But the declaration does not undertake to say that the deed was dated on the 1st of February, and does not in terms contradict it; for the sale may have been on the 1st of February, notwithstanding that the deed had an antecedent date. The two facts do not necessarily contradict each other, and it was not incumbent on the plaintiff to have stated precisely the date of the deed, nor its commencement, for he is presumed to be a stranger to it, and so it was held in the case of Partridge v. Strange and Croke, Plowden, 77 b. Dyer, 74. S. C. In respect to the description of the land, the deed was sufficiently set forth, and there is no absolute variance. The declaration states that Maria Herkemer pretended a right to one-ninth of sundry lots or parcels of land in Kinderhook, and sold the same; and this deed is for all her right and interest in and to a tract of land being in De Bruy’s patent at Kinder-hook., without stating precisely the amount of her right. All her right, as stated in the deed, may well be intended to apply to her claim to a ninth part, as stated in the declaration ; and as the plaintiff was a stranger to the contract, [360] it was sufficient if he stated the substance. The gist of the action consisted in selling a pretended title; the amount of the right claimed was only matter of damages!
2. The next objection is to the competency of parol proof of Maria Herkemer’s claim, to one-ninth, as stated in the declaration. But this objection does not appear to me to be well taken; for the testimony did not go to vary or extend the deed. The deed was for all her right, without specifying the extent or quantity of it, and the parol proof was to shew what was the quantity. This proof was necessary for the purpose of estimating the value of the land sold by the deed. The jury, without this evidence, would not have had any rule for the assessment of damages. If this proof was to be excluded, a general conveyance of right, without mentioning the extent of it, would completely elude the provisions of the statute.
3. But a more serious doubt is raised as to the ille* gality of the deed, because it was proved that Maria Eerkemer was in possession by her tenant Isaac Van Alen of some lands in De Bruy’s patent which had belonged to the estate of Stephanas Van Alen; and it is further urged, that, except as to the lands in the actual and adverse possession of the Van Dycks, an ouster of Mrs. Herkemer as to the residue was not to be presumed. As to the question whether Mrs. Herkemer was, or was not, to be adjudged out of possession, at the time of the execution of her deed, of all the lands in De Bruy’s patent, claimed under Stephanas Van Alen, the tenancy of Isaac Van Alen excepted, I had supposed it would not again have been agitated after the decisions of this court in April Term, 1801, and May Term, 1803, on the same question, in a controversy respecting the same deed, between L. and H. Van Dyck and the defendants. (1 Caines, 84.) It will be sufficient to observe that, if the facts in this case are substantially the same with those in the former cases, I shall consider myself as bound by those decisions. I have, carefully compared the facts and there does not appear t© [361] «ne to be any material difference as far as they relate to the ouster of Mrs. Ilerkemer. It is stated in the present case, that the plaintiff and his brother claimed the lands in De Bruy's pat nt, under the will of Stephanus Van Alen, and in right of their mother Hyletje, and that under that will, they claimed all the lands in the patent derived from Stephanus Van Alen, and that the lands they held were on a construction of the will that gave them, the 'whole ; that the share of Stephanus Van Alen amounted to 1200 acres, chiefly pine land ; that the plaintiff and his brother have lived on the land ever since the year 1752, claiming and using it as their own, and from time to time extending their improvements and inclosurcs, and that for years antecedent to the date of the deed, they had 430 acres in different parcels in the patent under inclosure and occupation. These facts, in connection with the other facts, that Alaria Herkemer's right accrued 54 years before the death of her uncles, and that she had been married at least 40 years before the date of the deed, and had never possessed or enjoyed any part of the lands in the patent, or the rents or profits thereof, except a small and recent possession taken under her by Isaac Van Alen, furnish, in my opinion, data equally strong with those in the former cases to presume her ousted; and under the authority of those decisions, that conclusion is now to be adopted.
With respect to the possession of her tenant, it was mat* ter of evidence whether the general sale of ah her right in. the patent was intended to operate only upon the parcel of land possessed by Van Alen. The words of the deed are not so confined; she grants all her interest in that tract of land, in the patent now comprehended within the lands possessed by the Van Dyck family. This description, by the terms of it, refers not to Isaac. Van Aleti's lot, but to lands possessed by the Van Dycks, and the better construction is, that the possession of Van Alen did not pass. The suggestion that Van Alen's lot was surrounded by lands possessed by the Van Dyck family, does not appear to be warranted by the case; it is a forced and unnatural construe[362] tion of the meaning of the description ; and if we resort fes .... parol proof it is clear that Mrs. H. meant to convey, and the defendants to purchase, lands possessed and held adversely by the Van Dyck family. The words of the deed are susceptible of this definition and location, and if it were admitted that there was an ambiguity as to the lands intended, it is at least an ambiguitas latens which is explainable by parol proof. That the deed was intended to convey a ninth of the Van Dyck possessions was not disputed upon the trial. Its being limited to Isaac Van Alerts possession, made no part of the defence, but the defendants set up at the trial, the right of Mrs. Herkemer, under the will of her grand-father, to an undivided ninth part of his estate in the patent; and from the deed itself and their declarations, made before and after its execution, it was a clear and undoubted fact, that they claimed under it the possession of the Van Dycks.
But admitting the deed to have embraced the possession of her tenant, and to have been so far valid, that will not affect the plaintiff’s right of action. The statute cannot be eluded by fraudulently associating with a pretended title to one farm, a valid one to another. As the statute has only superadded to the common law offence, the penalty of forfeiture of the value of the lands sold under the pretended title, it may perhaps be that the deed is left to its operation at common law, by which it would be good as to one title and void as to the other. Admitting the deed to receive this construction, it appears to me to be a point immaterial in the case. Whether the possession of Van Alen be or be not included in the deed, it was manifestly intended to embrace a ninth of the Van Dyck possessions, and is equally within the letter and spirit of the act. A party can never be admitted to defeat, or defy the provision's of the statute by cunning and contrivance. Our manners and state of society have no doubt greatly diminished the terrors of this species of maintenance, but the mischiefs of the fraud accompanying such acts, remain in full force. The policy of the act may change; but its construction cannot. The evil [363] intended to be prevented, is described in elevated and solemn . language m the old books ; “ when many thought they had “ title or right unto any land, they for the furtherance of u their pretended right, conveyed their interest in some part “ thereof to great persons, and with their countenance did “ oppress the possessors.” (1 Leon. 167.)
It was further objected, that the suit being for a penalty, -ought not to have been brought against the defendants jointly, as they are not answerable for each other’s intentions, and as they attempted to take as tenants in common. But this was a single offence, committed by a joint act, and the statute gave but one forfeiture or penalty. Nothing is more common than to join several defendants in one qui tarn, suit or information upon a penal statute, and the defendants, even in the action of debt, may plead nil debent, or not guilty at their election, and they ought to sever in their pleas, if the nature of them defence require it. (Hawk. b. 2. ch. 26. sec. 66, 67, 68. Buller’s N. P. 197.) The offence here was in its nature single, and the penalty conseqently single; though the defendants united in committing it, it was still but one offence. (Cowp. 612.) The leading case under the stat. of 32, H. 8. c. 9. of which our act is a copy, is that of Partridge, qui tam, &c. v. Strange & Croker, and which is so fully and carefully reported in Plowden. That was a suit against two defendants for the like offence, and notwithstanding a variety of objections were taken to the action, it appears that the one now under consideration, wholly escaped the attention of the learned serjeants who managed that cause, and I cannot but conclude that it must be deemed without foundation. The operation of the deed, upon the face of it, being to create an estate in common, rnakqs no difference. The pretended title did not pass at all, but the criminal act was equally joint, as it was done by one and the same joint purchase. If, however, we were to allow weight to tiffs objection, it is a sufficient answer to say, that it cannot ariS, or be admitted under the present motion for a new tidal.
[364] If it v/ere true that the' scienter was not submitted to the jury, I should be very unwilling to uphold the verdict, but the case does not wárrant that inference. The evidence of the intent of the party was full and complete.—■ The act was committed after warning given, and was done upon the advice of counsel, which, though it might palliate, can never be permitted to justify an offence against the laws. When, therefore, the judge told the jury, that the plaintiff’s case, according to his evidence, wasimade out, he told them what was no more than palpable, as to the quo animo of the parties. In my opinion, therefore, the motion for a new trial ought to be denied.
Livingston, J. and Spencer J. having been counsel in. the cause, gave no opinion.
New trial granted.