41 N.Y.S. 762 | N.Y. App. Div. | 1896
This is an action in ejectment to recover three parcels of land in Dutchess county, near Fishkill Landing, formerly under the waters of the Hudson river. By the judgment of the Special Term the plaintiff recovered all three parcels. The defendant appeals from that judgment only as to one of the parcels, that lying to the west of the railroad of the plaintiff. The jdaintiff claims title under an alleged grant from the People of the State of New York, by letters patent bearing date the 26tli day of December, 1873. Subsequent to this the defendant obtained • two grants from the People, one bearing date November 11, 1886, and the other September 3, 1891, sufficient in extent to cover the lands in dispute, but by their express terms there was excepted from them the lands acquired by the plaintiff. The grants to the defendant being thus
On the trial of the action the original letters patent were not produced, plaintiff asserting that they had been lost. To establish the grant plaintiff offered in evidence a certified copy of the record of the letters patent in the office of the Secretary of State. The defendant objected to the admission of this copy on the ground that there was no authority in law for the record of the patent in the office of the Secretary of State, and that as the record was without authority of law a copy of the record was not competent evidence. This objection was overruled and the copy admitted, and the correctness of the ruling of the trial court in this respect presents the question most seriously urged by the defendant on this appeal.
It is asserted by the counsel for the defendant that no statute can be found, either State or Colonial, authorizing or directing the recoi’d of grants of land by the People or Crown in the Secretary of State’s office. The counsel for the respondent concedes this claim, though there are two statutes, to be noticed hereafter, which recognize the existence of such records. But while there may be no statutory direction for the record, it does not follow that the record is not made “pursuant to law,” within the terms of section 933, Code of Civil Procedure. A grant from the sovereign, whether Crown or State, differs radically from a grant by a private individual. Blackstone says (Chap. XXI, book II): “ The king’s grants are also matter of public record. Por as St. G-ermyn says, the king’s excellency is so high in the law that no freehold may be given to the king nor derived from him but by matter of record. And to this end a variety of offices are erected, communicating in a regular subordination one with another, through which all the king’s grants must pass and be transcribed and enrolled; that the same may be narrowly inspected by his officers, who will inform him if anything contained therein is improper or unlawful to be granted.”
In Bogardus v. Rector, etc., of Trinity Church (4 Sandf. Ch. 633, 73 5) the vice-chancellor said: “The sovereigns of England never granted lands by deed. Their alienations were always of a higher character, being known in the law as alienations Toy matter of record. The grants were recorded in the proper office, and the great seal was
The same distinction applies to grants by the government since the Revolution. In United States v. Schurz (102 U. S. 378) it was held that a ¡latent for public lands, signed, sealed and recorded, took effect without delivery, contrary to the rule as to private conveyances. Justice Miller there said : “ The authorities on this subject are numerous and uniform. They have their origin in the decisions of the English courts upon the grants of the crown evidenced by instruments called there, as here, patents. * * * These, he (Blackstone) says, are all made matter of public record, and are contained in charters or letters patent. He then recites the processes by which patents are prepared and perfected, the various officers through whose hands they pass, and the manner of affixing the seal to them, and their final enrolment. They are then perfect grants, and no mention is made of delivery as a prerequisite to their validity. * * * But in regard to the transfer of title by matter of record, whether this record were a judgment or decree in a court of justice, as fines and recoveries, or the record made in the proper office (generally in the Court of Chancery by the lord chancellor) of the king’s grant, called enrolment, no livery of seisin was necessary, nor any delivery of the document sealed with the king’s seal, for, when this seal was affixed to the instrument and the enrolment of it was niade, no higher evidence could be had, nor was any other evidence necessary of this act or deed of the king.”
It will thus be seen that the very name of such grants, “ alienations by matter of record,” necessarily assumes that the grants are to be recorded in the proper public office, though it is true a failure to record the grant might not vitiate it. (McGarrahan v. Mining Co., 6 Otto, 316.) When it is said that it must be recorded in the proper public office, such an office as that of the county clerk or
By chapter 110, Laws of 1845, it is provided that: “All letters patent issued under the great seal of this State, granting land to any person or persons, in addition to the record thereof made in the office of the Secretary of State, may he recorded in the county where the lands granted are situated, * * We, therefore, conclude that the record of the plaintiff’s grant in the office of the Secretary of State was made pursuant to law, and that the certified copy of it was competent evidence.
A further objection was made to the admission of this copy, on the ground that the record was incomplete in that it fails to contain a copy of the map which the letters patent state was annexed to them. We think this objection untenable. The patent granted to the plaintiff all the lots situated in the county of Dutchess, under the waters of the Hudson river within the boundary line of the
The judgment appealed from should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.