4 Wend. 543 | N.Y. Sup. Ct. | 1830
By the Court,
1. It is objected that it does not appear that William Cosby, the patentee, was the same who was governor of New-York and New-Jersey. This fact seems not to have been agitated on the trial, but on examining the recitals in the deed from Grace Cosby to Oliver Delaney, William Cosby, sheriff of Amboy, seems to be one of the grantors in a deed of Cosby’s manor to William Cosby, governor of New-York and New-Jersey. They were therefore different persons.
2. It is also said that there is no legal proof of the will of Governor Cosby. Search was made for the original by Mr. Green, which is objected to, but must be considered sufficient prima facie. He examined all the bundles of wills given him by the surrogate, and though he did not examine all the wills in the office, yet he examined those bundles in which the will in question should have been found if in the office. It is said the statute requires the certificate of the surrogate. The statute makes the certificate of the surrogate competent evidence, but it does not say that the fact may not be proved in any other manner than by the surrogate’s certificate. Had the surrogate appeared in court, his testimony, proving that the will could not be found would have been sufficient. His certificate was made evidence for greater convenience, not" because it was a higher species of evidence than his oath in open court. An official certificate of a surrogate could not have been received as evidence without the aid of the statute, (1 R. L. 308, § 21,) but it would have been competent, as has been stated, to prove by the surrogate himself that no such paper could be found in his office upon diligent search. The search of Mr. Green might be equally effectual as that of the surrogate; and when the fact is to be proved by oral testimony, his oath must be equally satisfactory with that of the surrogate, provided he has had an equal opportunity to ascertain the fact which he was called to prove. He searched all the bundles where the will would have been found, if in the
3. It is objected that there are no releases from the patentees to William Cosby. The only evidence on this subject is what is contained in a release from Grace Cosby to Oliver Delaney for that part of the manor of Cosby which lies north of the Mohawk, and which was given by Governor Cosby to his son Henry. As this conveyance relates to part of the same tract of land to which the premises in question are claimed to belong, this evidehce was proper. These releases are represented as having been executed a few days after the date of the patent; by these the whole estate in both patents became vested in Governor Cosby. In Jackson v. Lunn, (3 Johns. C. 114,) an assertion of title by a person not a patentee, and uninterrupted possession under him for a long time, were held sufficient to authorize a presumption of a conveyance to the person claiming title. In this case there has been no claim of title through any of the patentees except by Governor Cosby ; and although the claim does not appear to have been asserted as soon as in the case of Jackson v. Lunn, yet all the circumstances of the case would, upon the same principle which governed that case, authorize a similar presumption; but when these circumstances are taken in connection with the release to Delaney, there is no room left for doubt as to the fact of such releases having been executed.
It seems to me also that the recitals in the documentary evidence in connection with the testimony of Mr. Watts, sufficiently prove the death of the several persons in interest previous to the assertion of right in those who succeed in the estate ; and therefore, that a regular chain of title has been shewn from Governor Cosby to the lessors of the plaintiff, and as it is shewn by the surveyor that the premises in question lie within the patent, the plaintiff is entitled to recover. But even if the plaintiff had failed in shewing a chain of title, it appears that General Schuyler claimed the patent under a sale for quit-rents; that claim was co-evtensive with the pa
There is evidence also shewing that the defendant was the tenant of General Schuyler, and had paid him rent for the premises ; and as no objection was made on the trial of want of notice to quit, none can be made here. On the whole case therefore,! am satisfied that the plaintiff is entitled to judgment.