Cox v. Clift, 3 Barb. 481

By the Court,

Gridley, J.

It аppears to be now the settled doctrine of the court of chancery, to deny relief to a party seeking the aid of that court, to remove a supposed cloud upon his title, when, upon the facе of the proceedings through which the adverse claim is derived, the law adjudges that claim to be void. This question was fully discussed by the chancellor, in the case of Van Doren v. The Mayor, &c. of New- York, (9 Paige, 389,) where he holds this language: “ A valid legal objection appearing on the face of the proceedings through which the аdverse party can alone claim any right to the complainant’s land, is not in law such a cloud upon the complainant’s title as can authorize a court of equity to set aside or stay such proceedings.” To .sustain this position, the chancellor cites the case of Simpson v. Lord Howden, (3 Mylne & Craig, 97,) in which Lord Cottenham holds the same doctrine, and disclaims jurisdiction to set aside a contract void on its face. The reason assigned for the adoptiоn of this rule is, that the courts of law are adequate to afford relief, and therefore the interference of a court of equity is unnecessary. It does not follow, however, that where the deed which is supposed tо cast a cloud upon the complainant’s title, affords prima facie evidence of the validity of the adverse claim, and the complainant’s defence consists of extrinsic facts, depending on the evidеnce of witnesses whose testimony may be lost by death, chancery would not grant relief. (See Radcliff v. Rowley, 2 Barb. Ch. Rep. 23.)

In this case the adverse claim of Clift to the complainant’s premises is founded upon a deed of the attorney general, executed upon a sale under a statute foreclosure of a mortgage given by David Lyman to the state on the 7th of November, 1796. This mortgage covered the whole of lot 15.0 of the Onondaga reservation, contаining 250 acres; and were it not for other facts disclosed in the case, a right to sell any part of this lot, would be perfect ‍‌‌‌​‌‌‌​‌​​​‌‌‌​‌‌​‌‌​​‌​​​‌‌‌​​‌‌‌‌‌‌​​‌‌‌​​​‌‌‍upon a default in the payment of any sum due upon the mortgage. It however appears that on the 17th day of November, 1813, one Bildad Barber having purchased 62J acres of the lot in question embracing a parcel about 49| rods wide and extending across the easterly end of the said lot, procured a new account to be opened on the comptroller’s books for the said 62¿ acres, pursuant to the provisions of the statute upon that subject. (1 R. L. 476, § 4; 2 R. S. 159, 160, 2d ed.—175, 6, 1st ed.) On the 1st day of May, 1821, John and Thaddeus Bacon purchased of said Barber 26 acres particularly described in their, deed of conveyance, parcel of this 62J acres, and afterward procured a new account to be opened with them for the said 26 acres; and the сomplainant has become the owner of the said 26 acres of land, through several mesne conveyances, with all the rights originally possessed by the said John and Thaddeus Bacon. By the public law of the state the mоrtgage virtually ceased to be a lien on any of the parcels of land as to which new accounts had been opened, except for such portions of the moneys due upon the mortgage as werе in the opening of such account charged upon such parts respectively, and for the default of the owners of one part, the law gave no power to sell the part of another. It does not appear that any default had been suffered by any of the successive owners of the 26 acres, but the owner of the “ remainder” of the 62¿- acres for which a new account was opened, did make a default in pаyment, and such “ remainder” was sold by the attorney general at a public sale pursuant to the statute, (part 1, ch. 9, tit. 6 of the R. S.) on the 8th day of June, 1837, and was struck off to the defendant Clift. The land advertised in the notice of sale is described as the “ рart of said lot known by the name of the ‘ remainder’ of the part for which a new account was opened in the comptroller’s books, in the name of Bildad Barberand the deed of conveyance executed by the attorney general to Clift, described the premises in similar language, adding these words, “ being forty-nine and a half rods wide and extending across the easterly end of said lot number 150 and supposed to contain 62£ acres" This last part of the description is erronеous, being a description of the whole 62-^ acres, for which a new account was opened with Bildad Barber, instead of the “ remainder” of that parcel, after a new account had been opened fоr the 26 acres.

Upon this state of facts, the question arises whether this deed is a cloud ‍‌‌‌​‌‌‌​‌​​​‌‌‌​‌‌​‌‌​​‌​​​‌‌‌​​‌‌‌‌‌‌​​‌‌‌​​​‌‌‍upon the complainant’s title, within the principle of the case of Van Doren v. The Mayor of New- York. Should the defendant Clift seek to recover in an action of ejectment, the 26 acres of land belonging to the complainant, he would have to prove, first, the mortgage executed by Lyman to the state; secondly, the affidavits of the publication of the notice of sale with such notice annexed, of the posting of such notice, and of the sale itself; (see §§ 19, 20, 21 of the act before cited; 1 R. S. 214, 215;) and thirdly, the attorney general’s deed. Now these affidavits would, of necessity, show that a new account had been oрened with Bildad Barber, upon the books of the comptroller, and also another new account with the grantees of Barber for a part of his portion of the lot; and that it was only the “ remainder” of the portion that was advertised for sale, and that had been in fact sold. It would follow as a necessary consequence, that the attorney general had no power to convey any thing but such “ remainder.” In truth, the deed only professes to convey such “ remainder,” but gives a mistaken description of the premises designated by that name, which would be rejected whenever the legitimate proof should be produced of the true boundaries of that parcel of the lot. We are inclined to the opinion that, ‍‌‌‌​‌‌‌​‌​​​‌‌‌​‌‌​‌‌​​‌​​​‌‌‌​​‌‌‌‌‌‌​​‌‌‌​​​‌‌‍inasmuch as it would appear on the face of the papers which the plaintiff in such ejectment suit would himself be bound to produce on the trial, that the attorney general had no power to сonvey any thing but the “ remainder,” such plaintiff would be bound to show by evidence aliunde the deed, that the “ remainder” embraced the defendant’s 26 acres. The attorney general sells under a naked power which embraсes the “ remainder” and nothing else; and we do not think that the doctrine of presumptions in favor of the official acts of public officers, would extend to a description of such remainder in the deed, as against а stranger in possession of a part of the land thus described. This evidence aliunde the deed he could not produce, especially against one in possession and deriving title under Barber himself. But suppose the deed should be held to furnish prima facie evidence that the remainder embraced the whole 62J acres, and the burden should fall on the defendant (Cox) to rebut this prima facie case. The deed from Barber, with the successive mesne conveyances, would probably do this. But at all events, the books of the comptroller, if they are kept in the manner contemplated by the statute, would furnish record evidence of what premises were embraced in thе part called the “ remainder.” They would show a description of the parcel (62| acres) for which a new account was opened with Barber, and also the parcel (26 acres) for which a new acсount was opened with the Bacons. (See art. 3, tit. 3, ch. 8, part 1 of the R. S.; and see also 2 R. S. 187, § 17.)

It is not a case where-the testimony which is essential to the complainant’s ‍‌‌‌​‌‌‌​‌​​​‌‌‌​‌‌​‌‌​​‌​​​‌‌‌​​‌‌‌‌‌‌​​‌‌‌​​​‌‌‍defence, is liable to be lost by the death of witnesses. That testimony consists of record evidencе, which is no more liable to loss or destruction than the public records, which form the muniments of title of all the real property in the state. Suppose A., the owner of a farm, conveys it to B., and B. puts the conveyanсe on record, and after such conveyance is recorded, A. conveys the same premises to C., who brings ejectment against B. Now C. might make a prima facie case against B., by proving A.’s title and the conveyаnce to himself, liable, however, to be defeated by the production of the record of B.’s deed. Now it is apparent that B. has a perfect defence at law, and that the evidence to prove it is nоt liable to destruction or loss; and upon the principle of the cases before cited, it is difficult to see how the jurisdiction of the court of chancery can be supported to set aside C.’s deed. It is not perceived why a defence at law is not as perfect and the evidence to support it as little liable to be lost, in the case under consideration, as in that we have just supposed. There is also less necessity for a resort to a court of equity since the passing of the act authorizing proceedings “ to compel the determination of claims to real estate.” (2 R. S. 312.) By the provisions of this act a speedy determination may be had of any adverse claim to lands which have beеn three years in the possession of the occupant; and such determination is a final adjudication of the rights of the parties. (See sections 6 and 14 of the act above cited.) We are compelled, therefore, to reverse the decree of the viсe chancellor, and direct a dismissal of the complainant’s bill.

We think, however, that the decree should be reversed, and the bill be dismissed without costs to either party. The rule adopted by the chancellor in the case bеfore cited, (9 Paige, 388,) is a far less liberal one than had formerly ‍‌‌‌​‌‌‌​‌​​​‌‌‌​‌‌​‌‌​​‌​​​‌‌‌​​‌‌‌‌‌‌​​‌‌‌​​​‌‌‍prevailed in this state. In the case of Hamilton v. Cummings, (1 John. Ch. Rep. 517,) Ch. Kent maintained, after a review of all the previous cases, that the court of chancery had jurisdiction to direct a deed to be given up to be cancelled, which was void, whether its invalidity depended on a matter of law, or upon extrinsic facts, to be proved; or whether such invalidity appeared on its face,- or was made out by evidence. It is also true in point of fact, that a deed which purports to convey away the lands of another, notwithstanding such deed may be shown by record evidence to be void, does cast a cloud on his title, and tends to prevent a prudent and careful man from purchasing. It is, therefore, expedient and equitable, irrespective of the rule of law as more recently established, that such a deed should be cancelled or set aside. In this cаse, the defendant was bound, as a fair and honest man, to have released the complainant’s 26 acres to which in equity he had not a particle of right; but instead of so doing, he asserted a claim to the whole 62¡| аcres, and actually executed a mortgage which contained the same erroneous description, which had, by mistake, been inserted in the deed. Under all these circumstances, we are of the opinion that he is not entitled to costs.

Decree of the vice chancellor reversed, and bill of complaint dismissed, without costs to either party as against the other.

Case Details

Case Name: Cox v. Clift

Court Name: New York Supreme Court

Date Published: Jul 4, 1848

Citation: 3 Barb. 481

Court Abbreviation: N.Y. Sup. Ct.