Jackson, ex rel. Hoogland v. Vail

7 Wend. 125 | N.Y. Sup. Ct. | 1831

By the Court.

The legal title to lot No. 18, Marcellus, was in the people previous to the 8th day of April, 1820. As no adverse possession could be set up against their right at that time, and as it could not have constituted a bar to the right of the people, if the title had continued in them down to the day of trial, and they had been the lessors of the plaintiff it is difficult to conceive how it can be strictly interposed as a defence to this action. The letters patent have relation back to 1790, for the benefit of the heirs of Captain Hoogland, and of bona fide purchasers of his or their right to the lot, but not to defeat the very right intended to be secured by the act of the legislature. The patentee being dead, the property, by operation of the statute, descended in the same manner as if he had been in life on the 8th July, 1790. and the title had then vested in him. Those who have purchased after the 8th lu- ., ly, 1790, have acquired as valid a title as if the estate had adtually vested in Captain Hoogland at that time.

If the defendant can defend his title, he must do so as a purchaser. He shows regular conveyances from Ahra/iam Fowler down to himself. The only difficulty is as to Fowler’s right. The evidence which was offered to show that he had title to the premises, is alleged to be insufficient to establish the fact. The defendant proved the acknowledgments of Catherine Hoogland, one of the lessors of the plaintiff, relative to the deed to Fowler. The evidence was objected to, but received by the judge. An exception was taken to this decision. The object of this evidence was to show the existence of the deed to Fowler; and as she was one of the lessors of the plaintiff, no good ground of objection is perceived to the evidence, when offered for this purpose; and even what she said in relation to the parties to it, and its contents, though-drawn out by way of identifying the deed, may, with propriety, be resorted to, to determine its effect, if the defendant has laid the proper foundation for giving parol evidence of its contents. There is a manifest distinction between acknowledgments of parties going to show that a proper instrument has been executed to convey real estate, which is alleged to be lost or destroyed, and those which have their object to supply what is required by the statute of frauds to be in writing, or to show the invalidity of a perfect instrument. We think the decision of the judge in favor of receiving the acknowledgment of Catharine Hoogland was correct; the substance of which acknowledgment is, that she and her sister had given a deed to Abraham Fowler for the lot in question, and had received their- pay for it, and that it was a handsome compensation. She further said that it would make no odds where the deed was, for the people on the lot would never be troubled. Another witness, Buck, testified that he saw the deed in Abraham Fowler’s possession; it conveyed the lot in question, and had three or four names to it, as grantors, and had been acknowledged before Hughes, a master in chancery. There was sufficient evidence of the loss of the deed to admit parol testimony of its contents.

There was another objection to the evidence given of the contents of the deed, which was, that there being subscribing witnesses to the deed, they should have been called. If this objection would have been valid in another case, it cannot be sustained here. The witness who testifies concerning the deed, and proves that there were subscribing witnesses, could not tell who they were ; as their names could not be ascertained, it would have been impossible for the defendant to comply with what this objection seems to require of him. The loss of the deed put it as much beyond his power to call upon the subscribing witnesses as to read the deed itself.

New trial denied.