Bogardus v. Trinity Church

4 Paige Ch. 178 | New York Court of Chancery | 1833

The Chancellor.

The complainant’s counsel have made several objections to the form of the plea in this case, which it is proper should be disposed of before I proceed to consider the question whether the matters alleged in the plea .are sufficient, in substance, to bar the complainant’s title to relief. The first objection to the plea, in point of form, is, that it is multifarious or double, and does not rest the defence upon a single point. I think this objection is untenable. It is the pleading of a double bar which constitutes duplicity in a plea. But a plea is not rendered double by the mere insertion of averments therein, which are necessary to exclude conclusions arising from allegations, in the bill, intended to anticipate and defeat the bar which might be set up in the plea. The object of the pleader, in the present case, appears to have been to rest his defence upon the point that the corporation entered into possession of the premises, as early as 1705, under a grant from the crown, purporting to convey the whole property in fee, claiming title to the whole; and that it had r. , . , , . . . , , . continued m the exclusive and uninterrupted possession under such adverse claim from that time down to the present, a period of 125 years before the commencement of the suit. But as the complainant had stated a variety of matters, in his bill, which, if admitted to be true, would be evidence to counter-prove the allegation of an adverse entry under claim -of title, and of an adverse holding, it became necessary to negative those matters by general averments in the plea, and to support the plea by an answer as to those matters. (Mitf., 4 Lond. ed. 240, 271. 1 Brown's Ch. Pr. 332, 338. Sanders v. King, Mad. & Geld. Rep. 65.) In the case of Bailey v. Adams, (6 Ves. jun. 593,) Lord Eldon doubted whether it was necessary to insert negative averments in the plea, as well as to support the same by an answer, denying all the matters stated in the bill as evidence to displace or defeat the bar set up by the plea; and, as was usual with him, in such cases, lie left the question undecided. But Lord Redesdale, whose opinion upon a case of equity pleading is always esteemed the highest authority, says: “Upon argument of a plea,every fact stated in the bill, and not denied by the answer in support of the plea, must be taken for true. The plea therefore to the relief, (of a stated account) ought to have averred that the accounts settled included all dealings between the parties ; that the accounts were just and fair, and that the balance as stated was justly due; and these averments ought to have been supported by an answer to the same effect,” &c. (Roche v. Morgell, 2 Sch. & Lef. 726.) Again; in his Treatise on Pleading, he says: “ Nothing can be in issue on the plea but what is contained in the plea; and every charge In the bill, not negatived by the plea, is taken to be true on the argument of the plea.” (Mitf. Pl., 4 Lond. ed. 243. See also Gilb. For. Rom. 58. 3 John. Ch. Rep. 391.) Indeed, it seems strange that any doubt should ever have existed on this subject; for it is well settled that when issue is taken upon a plea, either in the first instance, or after it has been allowed upon argument, if the truth of the matters pleaded is established, the suit is barred, so far as the plea extends. (1 Newl. Pr., 3 Lond. ed. 165. Gilb. For. Rom. 95. 1 Mitf, Pl.. 241) If, therefore, the defendant was not bound, by averments in his plea, to negative the allegations in the bill, inserted for the purpose of anticipating and displacing the bar, the complainant would frequently be compelled to rely upon the defendant’s oath, alone, for the evidence of the truth of such allegations; and he would have no opportunity to contradict that oath, under the issue joined upon the plea. If that course of pleading was adopted, the whole plea might be true, although the answer in support of such plea was absolutely false, and could be proved to be so, if an opportunity was afforded to the complainant for that purpose.

Again ; it is supposed by the complainant’s counsel that (he defendants have overruled their plea, by answering to certain matters covered by the same. By a reference to the commencement of the plea,’ however, it will be seen that it is pleaded as a bar to all the relief prayed by the bill, but is only pleaded as a bar to the discovery in part; and that the discovery, as to all the matters necessary to be answered to rebut the presumption that the corporation took possession of or held the premises, or any part thereof, as tenants in common with the complainant, or his ancestors, is expressly excepted. The' answer can only overrule the plea when it relates to matters which the defendant, by his plea, declines to answer, submitting himself to the judgment of the court, whether, if the allegations in the plea are true, he ought to be compelled to answer as to those matters. But here the defendants were bound to support their plea, by an answer as to the circumstances stated in the bill, from which it might be inferred that the corporation did not enter exclusively under the grant of Queen Anne, claiming title to the whole premises; and as to any other circumstances which would, if admitted, be evidence to counter-prove the plea, by showing that the corporation entered - and held the premises as tenant in common, and not adversely to the title set up by the complainant, or that the rents and profits, or a part thereof, were received as a tenant in common, or trustee for the complainant, or his ancestors under whom he claimed to have derived title. (Sanders v. King, Mad. & Geldart's Rep. 64. Thring v. Edgar, 2 Sim. & Stuart's Rep. 281.) They have therefore, in making their defence by way of plea, very properly pleaded it in bar of the whole relief sought by the complainant’s bill, but only in bar of the discovery as to such matters as were not necessary to be answered and denied for the purpose of supporting the plea as a bar to the relief. The answer, then, as to these excepted matters, put in for the purpose of discovery merely, and in support of the plea which does not profess to cover that discovery, cannot overrule the plea, but it is entirely consistent therewith.

It is objected that the plea is not sufficiently supported. The only way of testing the sufficiency of an answer, in such a case, is to consider every allegation in the bill as true which is not sufficiently denied by the answer; and then to inquire whether, those facts being admitted, the plea is a sufficient bar to the claim of the complainant for relief. This objection, therefore, necessarily connects itself with the merits of the defence set up in the plea, and will be examined in that connection. I shall therefore proceed to consider the merits of this case as presented by the bill and plea.

In setting up a defence under a public statute, it is not necessary, either in this court or in a court of law, that the pleader should set forth the statute in his plea; or that he should allege the existence of a statute of which the court is bound to take notice judicially. It is sufficient for him to state the facts which are necessary to bring the case within the operation of the statute, and to insist that upon those facts the plaintiff’s right or remedy is at an end, or never existed. The court will then judicially notice the existence of the statute, and declare its legal effects upon the case as made by the pleadings. Although it is usual to set forth the statute in the plea, yet Lord Hedesdale, as well as Mr. Beames, have considered it unnecessary. And they both state that the substance of the plea consists in the averment of matters which are necessary to bring the case within the particular statute. (Mitf. 258. Beames’ Pl. in Eq. 164.) Indeed, it seems more appropriate, in this court, to plead the facts merely which bring the case within the operation of the principle of the statute, than to plead the statute, in terms, as a bar. The statutes of limitation which must govern this case, do not in terms apply to suits in equity. They only profess to bar legal remedies; although this court, whenever the complainant’s claim is founded upon a legal right, always acts in obedience to the rule prescribed by the legislature for the government of courts of law. At the time the corporation went into possession of the Domine’s Bowery under the grant from Queen Anne, in 1705, the law of limitation as adopted in England, by the statutes, 32 Henry 8, ch. 2, and 21 James 1, ch. 16, constituted a part of the law of the colony of New-York; being brought hither by our ancestors, who emigrated to this country from England, where these statutes were then in force, and settled in this state as an English colony. It is a natural presumption, and therefore is adopted as a rule of law, that on the settlement of a new territory by a colony from another country, especially where the colonists continue subject to the same government, they cany with them the general laws of the mother country which are applicable to the situation of the colonists in the new territory; which laws thus become the laws of the colony, until they are altered by common consent or by legislative enactment. (Blankard v. Galdy, 2 Salk. 411. 1 Howard's Col. Law Introd. 10. 5 Wendell’s Rep. 445. Boehm v. Engle, 1 Dallas’ Rep. 15.) But there might be a technical difficulty in pleading a statute of the mother country as the statute law of the. colony. The common law of the mother country as modified by positive enactments, together with the statute laws which are in force at the túne of the emigration of the colonists, become in fact the common law, rather than the common and statute law of the colony. The statute law of the mother country, therefore, when introduced into the colony of New-York, by common consent, because it was applicable to the colonists in their new situation, and not by legislative enactment, became a part of the common law of this province. (See Commonwealth v. Leach, 1 Mass. Rep. 60. The same v. Knowlton, 2 Mass. Rep. 534.) It was sufficient, therefore, for the defendants to. plead the facts which were necessary to bring their case within the common law of this state, without any reference either to the statute 32 Henry 8, or that of 21 James 1. The principle adopted by the first of these statutes was, that an adverse possession of sixty years was sufficient to bar any title or claim to real estate. That jf the plaintiff, or claimant, could not prove that either he or his ancestors, or those from whom he claimed to have derived his title, were in the actual possession or seisin of the premises, or of the rents, &c. growing out of the same, within the period thus limited he should be forever barred. And the latter act limited the right of entry of the claimant to twenty years after his title accrued ; with a reservation in favor of infants, and other persons who were under disabilities at the time their right of entry accrued. If the allegations in this plea are true, the corporation in 1705 received a grant from Queen Anne, who was then in the actual possession of the whole premises, and immediately entered, claiming title to the whole premises under that grant, adverse to the whole world; and has continued in such adverse possession ever since, under a claim of right. At the expiration of sixty years from that time, the right of the complainant’s ancestor,if he previously had any, was completely barred. The complainant’s counsel, however, have supposed it important to establish the fact that the corporation entered claiming under the deed of transport, as well as under the grant from Queen Anne. B ut as it is not alleged in the bill that the title which was vested in Colonel Lovelace and his heirs by that deed of transport was ever conveyed, either to the corporation or to the crown, I cannot see how a mere claim of a right to enter under that deed could make the corporation a tenant in common with Cornelius Bogardus; who, from the statement in the bill, could only have been a tenant in common with Colonel Lovelace, or his heirs, or assigns. Again; if it had been alleged in the complainant’s bill that the interest in the premises which was once vested in Colonel Lovelace, had been conveyed to the crown, previous to the grant of Queen Anne, so that it vested in the corporation under that grant, there would have been the same difficulty as to the advei'se possession. The deed of transport does not purport to convey an undivided interest in the property to the grantee, as tenant in common with any other person. On the contrary, it purports, upon its face, not only to convey the whole property, but to be executed by the attorney of two of the heirs, under whom the complainant now claims two eights of one sixth of the premises. The claim to that portion of the premises, I presume, is ma(je Up0n the ground that the person executing the deed of transport, was not in fact their attorney for that purpose. But for aught that appears in these pleadings, or in the deed of transport, Colonel Lovelace, at the time he took that conveyance, actually supposed the whole title to the premises was vested in the parties who were the grantors to him; and that William Bogardus was authorized to convey the interest of his brothers, Jonas Bogardus and Jans Roeloffson. If, therefore, Lovelace or his assigns entered under that deed of transport, claiming title to the whole, although they might in fact be only entitled to an undivided portion, as tenants in common, it would be a good colour of title to support an adverse possession. And it would be such an ouster of their co-tenants in common as to bar their right, at the expiration of the period of limitation as settled by the laws in force at the time such adverse possession commenced. In the case of Jackson v. Smith, (13 John. Rep. 406,) where the grantor gave a conveyance of a lot of land, describing himself as heir at law of the patentee, and his grantee entered into possession claiming the whole lot under that conveyance, although it was afterwards discovered that ' the grantor only owned one ninth part of the premises, as tenant in common with others, it was held, this was a good adverse possession to bar the right of the other tenants in common of the grantor. In the case under consideration, the grantors in the deed of transport describe the premises as their farm or bowery; which is certainly tantamount to a description of the grantor as heir at law of the former owner. So in the case of Culler v. Motzer, (13 Serg. & Rawle's Rep. 356,) the supreme court of Pennsylvania decided that where one tenant in common gives a deed of the whole premises, and the grantee takes possession under that deed, claiming title to the whole, it is a good adverse possession to bar the right of the other tenants in common. And by the decision of the court for the correction of errors, in the case of Clapp v. Bromagham, (9 Cowen's Rep. 530,) the law is now definitively settled, in this state, that the grantee of one tenant in common, of the whole premises, entering under such grant and claiming title to the whole, may set up the statute of limitations as a bar to the rights of his co-tenants in common. It is unnecessary, therefore, to inquire whether the allegation of the defendants that the corporation entered under the grant of Queen Anne, and not otherwise, claiming title to the whole premises, is equivalent to an absolute denial that the corporation entered claiming title under the deed of transport to Colonel Lovelace. Because, if the defendants had admitted that the corporation entered under both, claiming title to the whole premises, the result would be the same as a bar to the claim of the complainant. And if the crown actually derived its title to the premises under the deed of transport, either by escheat or otherwise, and the agents of the government were in the actual possession of the premises, claiming title to the whole under that conveyance, previous to October, 1700, although the defence would not be covered by the present plea, yet upon an answer insisting upon that fact, it would appear that the remedy of the complainant in this case was still more effectually barred by the act of the 30th of October, 1710. (1 Van Schaack's ed. of Laws, 82.) By that act it was declared that every person, or body politic or corporate, who by themselves, their tenants, or servants, or where his, or their ancestors, predecessors, or others under whom they claimed, had been seized to their own use, or had taken the rents, issues and profits of any messuages, lands, &c. in their own proper right, for the space of ten years before that time, and who should continue in possession, without any claim by actual entry and continued possession, or by suit prosecuted to effect, until the first of September, 1713, should forever thereafter be adjudged, deemed and taken to be the true, rightful and lawful owner of such messuages, lands, &c.; and might hold and enjoy the same, any claim, right, title, demand or pretence to the contrary notwithstanding.

I have not been able to discover that the letter of 1785, from the committee of the corporation to the agents of certain persons claiming another part of the church property, called the Domine’s Hook, can have any possible bearing upon the rights of the parties as to the present controversy. There is nothing upon the face of that communication from which it can be inferred that the committee intended to admit that the corporaj_jon eia"imed even the lands called the Domine’s Hook, under the deed of transport. As the corporation had been in the exclusive and undisturbed possession of that property for eighty years under Queen Anne’s grant, it had the right to retain that possession against every person who could not show a better title to the premises. It was, therefore, sufficient for the committee of the corporation to satisfy the agents of the claimants that their ancestors had conveyed their whole interest to Colonel Lovelace, without showing that the corporation had subsequently obtained the same title under its grant from the crown. They probably also fell into the error of supposing that the Domine’s Hook and the Domine’s Bowery were but different names for the same premises; and they therefore communicated the fact of the existence of this deed of transport as conclusive evidence that the claimants’ ancestors had divested themselves of all right to the lands then in controversy. As the whole property granted by Queen Anne’s patent had previously passed by the names of the Duke’s farm, the King’s farm, and the Queen’s farm, the committee may also have had reason to presume that a conveyance had been made from Colonel Lovelace to the Duke of York, before he came to the throne, and that the whole had subsequently passed to his successors as a part of the crown lands. But as the deed of transport described the premises, thereby conveyed, as the farm or bowery of the grantors, the committee had equally strong reasons for presuming that there had been a conveyance to the grantors from their co-tenants, if they were aware of the fact that there were other children of Annetje Jans, who had not joined in the deed of transport. There is, therefore, no reasonable foundation for the supposition that the committee intended to admit, or that they even believed the corporation ever was, in fact, a tenant in common with, the complainant or his ancestors, or with any other person.

Upon a full examination of the several questions which were so fully and ably argued by the counsel for both parties in this case, I have arrived at the conclusion, that the plea of the defendants is good in point of form ; and that the defence set up is sufficient, in law, to bar this suit of the complainant against the corporation. Indeed, it would be a matter of deep regret if the law was otherwise ; as the establishment of a different doctrine by the courts would unsettle and disturb the titles to much of the real property in those parts of the state where the recording acts have but recently come into operation. If a clear, uninterrupted and exclusive possession of land, for one hundred and twenty-five years, under a grant or conveyance purporting upon its face to be a valid conveyance of the whole property, is not sufficient to protect the occupant of the premises, against the claims of those whose ancestors may have once been owners of an undivided interest in the same, the titles to lands in those parts of the state are certainly very unsafe. For it would, in most cases, be found to be impracticable, after such a lapse of time, to trace out and establish a regular chain of title from every person who had once held an undivided interest in the premises. The limitation law, therefore, in such a case, is not only a proper but even a meritorious defence, against dormant claims.

The plea must be allowed; and the complainant’s bill must be dismissed with costs, unless he shall within twenty days pay the costs of the argument of the plea, and file a replication to the same.