9 Wend. 511 | Court for the Trial of Impeachments and Correction of Errors | 1832
The following opinions were delivered:
The chancellor decided that the fraud in obtaining the deed was sufficient to avoid it, but that the complainant was not in a situation to take advantage of it, as his own deed was void, it being executed when Murray and Palmer were in possession, holding adversely. The latter point in the decision of the chancellor presents the only question now before the court.
I consider the principle too well settled, to admit at this day of an argument, that a deed executed by the true owner, while there is a person in possession of the premises, holding adversely, is void as against such possessor, although it is good as against the grantor and his heirs. Both these points are decided in the case of Jachson v. Dumont, 9 Johns. R. 55, The important inquiry in the case therefore is whether Murray and Palmer were, (within the rule of law,) holding adversely on the first of January, 1820, when John Livingston conveyed the premises to the appellant ? The doctrine of adverse possession has been so much and so often discussed in our courts that it ought at this day to be well understood. To prevent a recovery by the true owner, there must be a possession in the defendant, adverse in its character, and must have continued for twenty years. To render a conveyance by the true owner void as to tho person claiming by possession, there must also be a possession, and that possession must be adverse in its character, and it must exist at the time of the execution of such conveyance, but no particular length of possession is necessary to make it effectual for this purpose. The acts which constitute a possession are different according to the evidence of claim. Where the person claiming to hold by possession has no written evidence of title, but claims by parol to be the owner, there' must be an actual occupancy; a pedis possessio, a substantial enclosure by fence, sufficient for the protection of the crops. It must be marked by definite boundaries. Brandt v. Ogden, 1 Johns. R. 158, A possess
What acts are sufficient to constitute the character of the possession adverse 1 If a person enters upon land and cultivates it, and lives on it, and says he is the owner, that is sufficient to make his possession adverse. He claims to be the owner in opposition to all the world. If he claims it, and gives as a reason why it belongs to him, that he has first taken possession, and no other person has produced a title for it, though he has nothing but possession, such possession is not adverse. Jackson v. Frost, 5 Cowen, 346. So if the first occupant sell merely his possession, not assuming to convey the title, such conveyance cannot be the basis of an adverse possession, because it supposes a better title in some other person. The claim must be of the entire title. It is not necessary that the title set up should be a rightful title. When the plaintiff has shewn title, and the defendant relies oñ possession, the idea of right is excluded ; the fact of possession and the quo animo it
Senator Spencer quotes with approbation what was said by Woodworth, justice,in Jackson v. Woodruff, 1 Cowen,286,as follows: “If the title is bad, it is of no moment; but if no lands are described, nothing can pass. The deed is a nullity, and can never lay the foundation of a good adverse possession, beyond the actual improvement.” Here is an express assertion that a deed which is a nullity can never lay the foundation of an adverse possession; that is precisely the principle of the case of Jackson v. Waters, and ! consider it a sound principle which has several times been asserted by the supreme court, and has never been overruled by this court, and I trust never will be. In the arguments of the learned judges who delivered opinions in the case of La Frombois v. Jackson, much stress is laid upon the point, that every possession has, prima facie, the presumption of right in its favor, and authorities are cited to sustain it. There is no doubt that the principle is correct;
The bill charges that by fraudulent representations, Palmer obtained a letter from J. Livingston to the Sperrys, directing
Justices Sutherland and Nelson concurred in the opinion delivered by the chief justice.
It appears to be admitted by the
appellant, in his bill of complaint, that Murray and Palmer not only contracted with the agents of John Livingston for the land in question, but that they obtained a conveyance in fee of the same, executed by the said agents in the name and on behalf of their principal, with full covenants ; also, that they went into possession of the premises, and commenced working the ore bed, and for aught that appears in the case, are still in possession by themselves or by those who hold under them. The bill charges, however, that Palmer having discovered a valuable bed of iron ore on the land, falsely represented it to be of little value, and of no use except for a sheep pasture, for which purpose he wanted it, and fraudulently concealed the existence of the iron ore bed. There being no answer to this bill, we are to consider the averments as true, or at least admitted by the respondents to be so; and were the case now to be decided on its merits solely, with no further evidence than what appears from the bill, my opinion might be different from what it is. There certainly was a gross misrepresentation by Palmer as to the value of this land, and the purposes to which it was to be applied. On
The deed under which the appellant claims was dated on the 1st of January, 1820, about eight months after the sale to Murray and Palmer, and no attempt has been made, by any thing which appears in the case, to dispute their title until the filing of the present bill, which took place on the 18th of October, 1829, nearly ten years after the date of the deed to the appellant. The principle has been well established by numerous cases, that the conveyance of land by a person out of possession, such land being held adversely by another, annuls the deed; and the person receiving such convey
It was insisted by the counsel for the appellant, that inasmuch as the title of the respondents was obtained by misrepresentation and fraud, it is void, and therefore that the possession of the premises under this fraudulent title could not be adverse to a conveyance by the defrauded grantor. It has been decided, however, and the decision is in accordance with the provisions of the statute, that it is not necessary, in order to constitute an adverse possession, that it should be held under a good or rightful title. The fact of possession, and that it was commenced and continued, are the only tests, and it must be exclusive of all other rights. 18 Johns. R. 40. 9 id. 180. It seems, therefore, that by the provisions of the common law, and in accordance with those of the statute, no conveyance of real estate can be valid and effectual while such estate is held by a third person adversely.
The properiyin question being part of a large tract of land, containing between eight and nine thousand acres, was conveyed to the appellant by his father, John Livingston, on the 1st day of January, 1820. This grant was not properly a sale of the land, although in law it may be so considered, but a gift in consideration of natural love and affection, and was consummated in conformity with an arrangement previously contemplated for the division of the estate of the grantor among his children. Now as it is alleged that the adverse possession of the respondent is under a title from John Livingston by his attorneys or agents, and the claim.of the appellant to the land thus held is by a conveyance executed by John Livingston also, and as the land cannot pass by the last conveyance unless the former shall be avoided, the question now is, was the bill properly filed, or can a suit be sustained by Anthony R Livingston alone, without joining the other heirs at law of JohnLivingstonf The law as laid down, 2 Coke, 83, is, that an estate made by fraud must be avoided only by him who had a former right, title, interest, debt or demand. A sale in open market by fraud shall not bar a right which is more ancient, and a fraudulent gift shall not
Much of the difficulty in this case arises from the controversy between the parties as to the facts before the court. The chancellor, in assigning the reasons for his decree, says that the deed from John Livingston to the complainant is void because it appears by the bill that Curtis Murray and Zephaniah Palmer were in actual adverse possession of the premises in question at the time of the execution of that deed, under a deed from John Livingston to Murray, executed by his agents, A. J. and G. Sperry. The counsel for the appellant deny not only the correctness of the chancellor’s opinion in point of law, but also the facts upon which it is grounded. The case is important on account not only of the principles involved in it, but of the magnitude of the subject of controversy; and as it is not probable that the decision of the question now presented to - the court will terminate the controversy, it seems to be due to both parties that the state of facts, as understood by the court, should be explicitly declared.
Are we authorized to assume from the pleadings that Murray and Palmer were in possession of the premises in question
Having thus arrived at the conclusion that the defendants were in possession at the time of the execution of the deed by-John Livingston to the appellant, the next question is whether that possession was held under such circumstances as to invalidate the last mentioned deed. Possession available for that purpose must be exclusive of any other right; it must be adverse to the right of him against whom it is set up. The possession in the present case was manifestly of that kind. The very fraud practiced to obtain the deed, the taking an' absolute deed from the Sperrys assuming to grant all the right and title of John Livingston, and the immediate possession
If it were to be admitted that fraud in procuring the execution of a deed renders it absolutely void, no human possession could be more insecure than that of real estate. It is a principle of law that nothing can set up or make good for any purpose, or for any person, that which being absolutely void, is as if it were not. What then would be the security of even bona fide purchasers undera fraudulent grantee ? The policy of the law is well settled that bona fide purchasers under a fraudulent grantee shall be protected. This could not be so if the deed to such grantee should be held absolutely void. Again5 could John Livingston at his election have affirmed the deed to Murray, and been concluded by such affirmance ; and would such affirmance have established the defendant’s title f Who will deny that he could have done so, and that such would have been the consequences of his affirmance 'l And yet no such affirmance could set up a deed that was absolutely void; make that a deed which never was a deed. The dis
A point was made on the argument that the deed from John Livingston to the appellent was not within the statute against champerty and maintenance ; and this was urged upon two grounds : 1. That the deed was tobe regarded in the light "of a devise : and 2. That the near relationship existing between John Livingston and the appellant, (that of father and son,) excepted the grant from the operation of the statute against champerty and maintenance. As to the first ground, the deed was in the-nature of a purchase, and not of a devise. It has all the requisites of a grant upon purchase, and none of the characteristics of a devise. It was to take effect immediately upon delivery, and was not postponed to the death of the grantor. The utmost that can be contended for, on this ground is, that John Livingston preferred to convey, and the appellant to take, in this manner, rather than by devise ; and having elected this mode of alienation, whether it contravene or carry out the intentions of the grantor, the conveyance is subject to all the rules and provisions of law applicable to this mode of alienation. It cannot be a deed for one purpose and a devise for another. But the other ground presents a question of greater difficulty. The facts are presented by the bill, that as early as 1811, John Livingston made an arrangement with his son the appellant, two of his other sons, and his only daughter, to convey to them in fee simple separate parcels of his real estate for their respective portions of the said real estate; in pursuance of which, in 1811 he caused a division of said real estate to be made, and about the first of January, 1820, carried into effect the previous arrangement by executing to the appellant a deed for the portion so setoff
The conclusion of this view of the subject is, that the deed from John Livingston to the appellant was void and inoperative, and consequently that the demurrer is in this respect well taken ; for which reason I am of opinion that the decree of the chancellor be affirmed.
On the question being put, Shall this decree he reversed ? the members of the court voted as follows;
In the affirmative—The Chief Justice, Justice Sutherland, Justice Nelson and Senators Birdsall, Cropsey, Lansing, McDonald, Mather, McLean and Tallmadge—10.
In thenegative—Senators Allen, Conklin, Deitz, Dodge, Gere, Hubbard, Lynde, Seward—8.
Whereupon the decree of the Chancellor was reversed»