2 Johns. 80 | N.Y. Sup. Ct. | 1806
Lead Opinion
David Miller, the original grantee of the lands in question, was a soldier, serving in the line of this state, in the army of the United States, in the late war with Great Britain, and died previous to the 27tli of March, 1783; and by the 1st section of the act of the 5th oí April, 1803
I confess that Icannot well understand the plaintiff's counsel, in supposing that, in 1801, the title to this land was vested in the state. The act of 1803, whether considered as a declaratory act or not-, absolutely vests the title in David Miller at the time of his death.' Whether it before vested or not, I am not to enquire; the legislature had plenary power toso vest it; and in the case of Jackson
It then follows necessarily,¿hat the third rule ofdescent, prescribed by the statute of the 23d of February, 1786,. applies, and the father of David tools, as his- heir. He having died since 1803, and Peter Miller being one of the eight persons entitled upon his death, and the others not having been made lessors, he can only have judgment for one undivided eighth part of the premises.
L N. Y. v. 3. p. 401.
L. N. Y. v. 1. p. 46.
Sec. 8. v. 3. p. 399, Laws.
3 Caines 67.
2 Caine, 183.
Dissenting Opinion
I cannot concur in the opinion, just delivered. By the act of the 5th of April, 1803, the letters, patent of the. 13th of April, 1790,. were made to relate back to the life of the grantee, and the titles declared to have vested at the time of his death. The act was made to reach- precisely such- a case as that of David Miller, the patentee. (Jackson ex dem. Sherwood v. Phelps, 3 Caines, 68, 69.) Wc are therefore to consider tbe case in relation to the title,, a-s if Miller had been alive, when the
Judgment for the plaintiff, ut supra.
L. N. Y. v. 3. p. 401.