19 Wend. 339 | N.Y. Sup. Ct. | 1838
By the Court,
The principal question involved in this case, and one probably which may permanently affect the claims of the respective parties to the lot, is this: whether it is competent for a grantor to impeach the genuineness or validity of a deed purporting to have been executed and delivered by him, so as to prejudice the rights of those claiming under it: in other words to prove .it forged. It is quite probable that the law, as laid down at the trial, was not intended to be pushed to the extent of affirming the negative of the above proposition ; but after full consideration, I am unable to understand it satisfactorily to myself in a mere qualified sense. The position
If this deed were considered genuine, there was sufficient evidence of notice of its existence to the agent who procured the second one to be executed, to warrant the jury in finding the fact; and then, though first recorded, it would not prevail over the elder deed. 17 Wendell, 25, and cases there cited.
Assuming the first deed of Whitehead to be á forgery, so as to allow operation and effect to the second made to Van Riper, there was no such adverse holding on the part of Hopkins as would necessarily avoid it; nor such conclusive evidence that the defendant entered under a title derived from Hopkins as would necessarily preclude him from subsequently acquiring title from a third person. These were
There is nothing in the position, urged on the argument, that the wife of the plaintiff should have been made a lessor of the plaintiff, on the ground of being a joint grantee. The husband is tenant for life jure uxoris in her interest. 16 Johns. R. 116. 15 Wendell, 615. 2 Black. Com. 433. Co. Litt. 351, a. In this case, if he should convey the estate, it would survive to the wife in case she outlived him. Id. 5 T. R. 652. 8 Cowen, 277.
New trial granted, costs to abide event.