5 Cow. 458 | N.Y. Sup. Ct. | 1826
The governor, as such, has no authority to sell, or contract for a sale, of the unappropriated lands of this state. That power is entrusted to the commissioners of the land oÓice. The person administering the government is ex officio, one of those commissioners ; but he possesses no greater power than any other member of the board. (1 R. L. 292. 1 Greenleaf, 280.) The commissioners are authorized to direct the form of the patent to be issued. But whatever the form may be, the sale and the patent are efficacious, only as directed by, and emanating from the commissioners. The mere signature of the governor does not afford the requisite legal evidence that the patent is approved of by the commissioners. The statute has not declared that such shall be its effect; and there is nothing to show that the commissioners, (admitting it was competent for them to do it,) ever constituted the governor their agent or representative for that purpose. Having no authority, therefore to sign th,e patent to Metcalf, under whom the defendant claims, until it was approved of by the commissioners ; and it not appearing that it was so approved till the 27th of July, 1790, when it passed the secretary’s office; it is immaterial whether it was in fact, signed by the governor when it bears date, or not. But the legal presumption is, that his signature and the affixing of the great seal, to the patent, (which I understand to be what is meant by passing the secretary’s office,) were contemporaneous acts. This would also appear to have been the fact from inspection of the patent, if the signature and certificate in the original patent were placed as they are by the copy given in the case.
The defendant, therefore, I apprehend, fails in laying a foundation for the doctrine of relation for which he contends. He does not show a previous contract to which the act that consummates his title, is to relate, and from the date of which, it is, by relation, to take effect.
I am, therefore, of opinion, that the patent to Metcalf can take effect only from the time when it appears to have been approved of by the commissioners, and to have passed the secretary’s office; and, consequently, that the motion for a new trial must be denied.
New trial denied.