5 Denio 545 | N.Y. Sup. Ct. | 1848
The patentee, Francis Legge, acquired title to the land in suit in 1769, and retained it until his death in 1788 or 89. He was never a citizen of this state, but remained a subject of the British crown to the close of his life. It is not necessary to inquire whether the people of this state could have divested his title on the ground of alien-age, (Jackson v. Lunn, 3 John. Cas. 109 ; Blight’s Lessee v. Rochester, 7 Wheat. 535,) for no such attempt was ever made ; and the objection, if at any time available against him, was obviated by the sixth article of the treaty of peace of 1783. (Jackson v. Lunn, supra; Orr v. Hodgson, 4 Wheat. 453; Society, &c. v. New Haven, 8 id. 484; Orser v. Hoag, 3 Hill, 84.) The effect of this article, as these authorities show, was not only to bar the escheat of land held by British subjects, but to give them a capacity to transmit the same by descent. Such descent, however, must be as in ordinary cases to a citizen, not
The treaty of 1794 ba.s no possible bearing on this case, for the plain reason that title to -the land was not then vested in any British subject.- That treaty (article 9) applied only to titles then existing in such subjects, (Blight’s Lessee v. Rochester, supra,) which was not the fact with regard to this land. The patentee had then been dead several years, and upon the papers before us it cannot be pretended with any show of plausibility, .that the title to these lots was then vested in any subject of the British crown. That treaty therefore has no application to the case in judgment.
It was urged by counsel op the argument that a law of this state, enacted-in 1845, gave to the nephew and niece of the patentee a capacity to take this land by descent ; and I admit that if they were living when the act was passed, such may have been its effect. (Laws of 1845, p. 95, § 4.) But this construction .of the act, if correct, -will not aid the plaintiffs, whose alleged title is founded on ,a deed.executed by the nephew and niece in 1.820. When the patentee died, which was in 1788 or .89, they were incapable of taking title from him as his hejrs, nor had they any such .capacity when the deed referred to was executed. Grant that by this act of 1845 they were "made capable of taking,” and that they did thereupon take as heirs of the deceased patentee, this can have no effect upon the case in
There is another ground, however, on which, I think the plaintiffs, or some of them, and in the present posture of the question it is immaterial which, were entitled to recover. The defendant holds as tenant to Foote & Stevens who about 1841, purchased the possession, as the bill of exceptions states, of Thomas J. 0. Curtiss, who had been in possession from a period as early, at least, as 1826, although he, at no time, claimed to have any title to the land. In 1826, an action of ejectment for the recovery of these lots was pending in favor of Brown, jne of the present plaintiffs, against Curtiss, but which was then stopped and ultimately abandoned, in consequence of an agreement entered into by them. By that agreement it was stipulated that the action against Curtiss should abide the i esult of another action of ejectment then pending against one Spear, and which, as is stated in the agreement, involved'the validity of the title of Brown; it being expressly declared by said agreement that if judgment, in the suit against Spear, should be rendered in his favor, Curtiss should quit possession
The judgment rendered in favor of Spear being as in case of nonsuit and not on the merits, it was urged on the argument that this was not such a judgment as was contemplated by the agreement between Brown and Curtiss. We think otherwise. Spear was defendant in the action referred to in the agreement, and he could in no way compel the plaintiff therein to bring his cause to a determination on the merits, for he might at any time abandon the action. According to the agreement, the sufficiency of Spear’s defence depended on the validity of the title of Brown, and if the plaintiff in that suit would not try his cause on the merits, the defendant therein could in no way compel him to do so. Curtiss had agreed to abide the result of that cause, without requiring it to be determined on the merits. He may have supposed that it would be so tried and disposed of, but he did not make that a condition in his agreement with Brown. All he insisted upon was, that judgment should be rendered in favor of Spear, in which event, no matter whether the judgment was by default or on the merits, he agreed to surrender possession, unless he chose to purchase the land of
Ordered accordingly.