Heath v. Ross, 12 Johns. 140

Heath v. Ross

12 Johns. 140 | N.Y. Sup. Ct. | 1815

Per Curiam.

This ,is an action ,of ‘'troverr to'recover the Valúe of a quantity of timber,, and the principal question, for the purpose of-ascertaining the amount1 of damages, is to determine when the title to the land upon whicti the timber Was cut, -became vested in the plaintiffs. The patent granted to. them *141bears date the 4th day of December, 1810, and passed the secretary’s office on the 28th day of the same month; and the principal part of the timber was cut between these two periods. According to the usage and practice at the secretary’s office, the patent is dated at the time when the grant was ordered by the commissioners of the land-office, and this must be taken to be the time when the contract for the land was made. As between the parties to the grant, when the title is consummated by all the necessary forms, it will relate back to the date; but this relation, which is a fiction of law, is never to be adopted when third persons, who are not parties or privies, will be prejudiced thereby. But the application of this fiction to the case before us, will produce no such result; for the defendant, and. the person from whom he purchased the timber, knew that neither of them had any title to the lot, or right to cut the timber. They both supposed it belonged to the people of this state, and afterwards made application to purchase it, which was a full recognition of their title; and the plaintiffs having obtained this title by a grant, which, as between them and the people, would relate back to a time before which any of the timber was cut, must draw after it a right to the timber also. The people can have no claim upon the defendant for this timber, and the injury is without redress, unless the plaintiffs’ claim can be supported. The doctrine of relation, as understood and recognised, both in our own and in the English courts, is applicable to this case, and makes the plaintiffs’ title relate back to the date of the patent. (1 Johns. Cas. 85. Vin. Ab. tit. Relation, 288—9. The plaintiffs are, accordingly, entitled to judgment for 570 dollars.

Judgment for the plaintiffs.