18 Johns. 295 | N.Y. Sup. Ct. | 1820
Lead Opinion
delivered the opinion of the court. The lessor deduced a title to the premises in question under Alexander Kidd, a soldier, to whom the lot in controversy was granted, by virtue of a deed from Kidd to Isaac Bogart, dated the 12th of January, 1783, and sundry mesne conveyances down to the lessor.
The defendant deduced a title from Kiddto Samuel Cobb, by a deed, dated the 25th of February, 1792, for the same lot; and by a deed from Cobb to the defendant, for 200 acres of the lot, being the premises in question, dated the 31st of January,1815.
It has not been pretended that the defendant is concluded, by any relation subsisting between him, or Cornelius Da. venport, his father, and the lessor, or those under whom be claims, from showing that the plaintiff has no title to reco. ver; or that the defendant, or his grantor, Cobb, has the title to the premises.
The deed from Kidd to Isaac Bogart conveys only a life estate. It is a grant, for the consideration of nine pounds, to Bogart, oIKidd's bounty or gratuity lands, under any resolution orlawsof thisstate, for his services, as a private in the troops of this state, in the service of the United Stales, in the regiment commanded by Colonel Gose Van Schaick, without any words of inheritance or perpetuity. It constitutes Henry I. Bogart and John Bogart, or either of them, his true andlawful attorneys and attorney, for him and in his name, to grant, bargain and convey the same (his bounty lands) to the said Isaac Bogart, his heirs and assigns, incase the same should be deemed necessary upon the grants having passed the seal of this state for the lands aforesaid.
The power thus given was executed by a deed from Hen* ry I. Bogart to Isaac Bogart, for the lot in question, by a
The question then arises, whether, since the death oi Isaac Bogart, the lessor, pr Cobb, and those claiming under him* have the legal title to the premises 1 This depends on the power contained in Kidd's deed to Bogart. It has been insisted, on behalfof the plaintiff, that the power, in this case, is coupled with an interest, and was irrevocable, so that Kidd had no interest left in him to convey. On the part of the defendant it has been urged, that the power being to strangers who had no intei’est in the land, notwithstanding it was contained in the deed to the person in whose behalf it was to be executed, it was a naked power collateral to the land. The question, as to powers, arose, and was finally decided in the Court of Errors, in the case of Bergen and another v. Bennet, (1 Caines' Cases in Error, 1.) Mr. Justice Kent delivered the opinion of the Court. He observed, that “ a power simply collatexal and without interest, or a naked power, is where to a mere stranger authority is given of disposing of an intei'est in which he had not before, nor hath by the instrument creating the power, any estate whatsoever. But when power is given to a person who derives under the instrument creating the power, or otherwise, a present or futui-e interest in the land, it is then a power relating to the land.” “ The former power,” he says, “ is revocable by the grantor, at his pleasure, in his life-time, and is absolutely revoked by his death ; and the grantee of such a naked power, having no interest connected with the power, has, of course, no interest affected by the revocation.” In Hargrave & Butler's, note, 298, to book 3d, of the first part of Coke's Institutes, it is said, that those powers which are given to mere strangers, that is, to persons who were not owners of the land, at the execution of the
The plaintiff’s counsel have pressed upon the Coart the-case of Fisher v. Fields, (10 Johns. Rep. 495.) as deciding this cause. That case was decided on an appeal from the Court of Chancery, on the ground that the assignment to Birch passed the equitable interest of the soldur, and amounted to a declaration of trust ; that after the patent issued, the soldier took as a trustee for Birch; and Fields having afterwards purchased of the soldier, with knowledge of the transfer to Birch, was a purchaser chargeable with the trust, and was as much bound to execute the trust as the soldier himself. The doctrine of that case would prevail, if the cause now pending was in a court of equity, and it could be shown, as it has not been done in this case, that Cobb had any notice, when he purchased, of the conveyance to Isaac Bogart by Kidd, and that the defendant had, also, notice of that conveyance when he purchased. At law, the legal title must prevail; but, on the facts in this case, tested by the decision in Fisher v. Fields, even in a court of equity, the plaintiff could not prevail, without proving notice of the conveyance to Isaac Bogart, both to Cobb and the defendant. This suit was brought before the termination of the life estate ; and it appears by the plaintiff’s own showing, not only that his estate is ended, but that the defendant has the reversionary interest. The plaintiff, then, has no title to turn the defendant out of possession; but he has a title to the mesne profits and the costs of this suit, and must, therefore, have judgment, to enable him to recover them.
This gives rise to the question of adverse possession $ and without going minutely into an examination of the facts, we are of the opinion that to render a possession
Dissenting Opinion
dissented, on the ground, that a power from Kidd, the soldier, to Isaac Bogart, was coupled with an interest. He said, that it was manifest from the words of the instrument, that it was intended to convey all the interest Kidd had in the lands; but as the legal title had not then vested, and the transfer could only be of an equity, a power was inserted authorizing Henry I. Bogart to convey to Isaac Bogart. The legal operation of this power he considered the same as if authority to convey had been given to Isaac Bogert; that it was to every beneficial purpose such a power; it was to be exercised for his benefit, was under his control, and came within the spirit of the rule laid down in l Caines' Cases in Error, 15. “ That when power is given to a person who derives under the instrument creating the power a present or future interest, it is, then, a power coupled with an interest.” The power, in this case, was well executed, and enured to the benefit of the lessor of the plaintiff, who became seised of an estate in fee, and was entitled to recover.
Judgment for the plaintiff, with a perpetual stay of the writ of possession.