8 Barb. 253 | N.Y. Sup. Ct. | 1850
This action is brought by the plaintiffs to recover the possession of about 150 acres of unimproved wood lands, situated in the town of Gallatin, in the county of Columbia. The lands are in a tract, originally of upwards of 160,000 acres, and known for at least a century past as the manor of Livingston.
The complaint alledges that the plaintiffs are, and have been for many years past, the owners and entitled to the possession of the land described therein; and that being such owners and entitled to the possession of the premises, the defendant, without the leave or license of the plaintiffs, or other legal warrant or authority, entered upon the premises, and claims to be the owner thereof, and unlawfully withholds from the plaintiffs the possession thereof, to their damage. They therefore pray judgment that they may be put in possession of the premises.
The defendant, by his answer, denies that the plaintiffs, at the time of bringing the action, or for many years past, were or-are now the owners of, or entitled to the possession of the premises mentioned and described in the complaint, or any part thereof.
The answer then avers, 1st. That the defendant and those whose title and possession he now holds and has in the premises, were and have been the legal owners in fee of the premises, and
The reply of the plaintiffs denies: 1st. That the defendant and those under whom he claims, have been the legal owners of the premises, or have had the actual or legal title or possession thereof, adversely or otherwise, for more than forty years before the bringing of the action, or that the plaintiffs had no right or title, or had not received the rents or profits of the premises or any part thereof, within forty years before the bringing of this action, or that the defendant is entitled by force of any statute to enjoy the premises against the plaintiffs. 2d. That the plaintiffs have been disseised of the premises, or any part
The reply further states that the plaintiffs have not sufficient knowledge to enable them to form a belief, whether Robert Livingston, jr. or John Livingston ever made or executed either of the last wills and testaments alledged in the answer to have been by them respectively made and executed, or whether the deed alledged in the answer to have been executed by Walter Livingston to Henry Livingston, was so made and executed; or whether any portion, or the portion of the lands designated in the answer as the manor of Livingston, lying east of the post road, was ever partitioned or divided into four distinct lots, numbered as in the answer alledged, or otherwise; or whether the premises described in the complaint are included in lot No. 4 of said partition, or whether any deed or deeds of release or conveyance were ever executed by or between Robert C. Livingston, Henry Livingston and. John Livingston, or any or either of them. And they aver that the claim of title made by the de
By the revolution the people succeeded as owners to all the lands within the limits of the state, that had not prior thereto been legally granted, held or possessed by persons or corporations, or in whom the title had not legally vested. As well by the law of nations, as by a declaratory act of the legislature of this state, passed in 1779, (1 Jones & Varick, 44,) the absolute property of all lands and all right and title to the same, that on the 9th July, 1776, vested in or belonged to the crown of Great Britain, became from that date forever vested in the people of this state, in their sovereign capacity. But with respect to lands that, prior to October, 1775, had been legally granted to individuals by the crown, or to which the title had been legally acquired' by individuals in any other way, neither the revolution, nor the change of the form of government, nor the declaration of the sovereignty of the people, worked any change or forfeiture in the ownership of such property. It is a general principle that the dismemberment of empire, in no instance affects the previous rights of individuals with regard to property. (2 John. Cases, 29.) The constitution of 1846 declares, “ That the people in their right of sovereignty are deemed to possess the original and ultimate property in and to all lands within the jurisdiction of the state, and all lands, the title to which shall fail from a defect of heirs, shall revert to or escheat to the people.” (Article 1, § 11.) The people are therefore the owners of all lands within the state that had not prior to, or have not since, the revolution been granted to others; and in their right of sovereignty they are deemed to possess the original and ultimate property in all the lands of the state. Being the source of title they are presumed to be the owners of lands not granted by them, until the contrary appears; and in an action to recover the possession of premises, brought in their name, it is sufficient in the first instance, to entitle them to recover, to show that such premises are vacant, unenclosed and unoccupied. Indeed, in most cases this is the only evidence that can be given. (People
It appears by the evidence on the part of the plaintiffs, that the premises described in the complaint lie in the town of Gallatin, about three miles from the north line and two miles from the south line of that town, and some five or six miles west of the Uoeliff Jansen’s kill; that at the commencement of this action, and for more than thirty years immediately prior thereto, they were to the knowledge of the witnesses, vacant and unoccupied, being waste, unimproved and uninclosed commons, having on them some timber but no clearing or occupation. This is sufficient in the first instance, and in the absence of other evidence the plaintiffs are entitled to recover.
It is perhaps as well to notice here, although not in the order of the argument of counsel, one of the positions taken by the defendant against the right of the people to recover. It is predicated on the statutes, that have from time to time been passed, in which the people declare that in certain contingencies they will not sue or implead any person for or in respect to any lands, tenements or hereditaments, or the issues or profits thereof. At common law the sovereign can not be disseised. (3 Bl. Com. 237. Com. Dig. Prerogative, D. 6. People v. Arnold, MS. opinion of Mr. Justice Johnson.) Entering on the lands of the sovereign and taking the profits is an intrusion merely. (Jackson v. Winslow, 2 John. 83. Bac. Abr. Prerogative, E. 6. People v. Van Rensselaer, ante, p. 189.) Neither can laches be imputed to sovereignty; and formerly no length of possession would be a defence against the claims of the state, except in certain cases to raise the presumption of a grant. (Co. Litt. 57. Bac. Abr. Prerogative E. D. United States v. White, 2 Hill, 60. Bal. on Limitations, 19. 3 Cruise, 558. Cowper, 214. People v. Van Rensselaer, supra.) This latter rule of the common law has, however, been varied by statutes passed at different periods—one in 1788, some twelve years after the revolution, and others successively in 1801, 1830 and 1848. The limitation in the statutes of 1788.1801 and 1848 is forty years— in that of 1830 twenty years. The statutes are in terms sub
The lands for which the suit is brought being; ht and unoccupied at the time of bringing the actior , aught that appears never having been actually occupied defendant or those under whom he claims, or at least, .ui for forty years continuously, prior to the action being brought, the case (assuming that there is no valid grant to the defendant or those under whom he claims) is not controlled by the statutes declaring the contingencies upon which the sovereign will not sue or implead individuals for or in respect to lands, or the issues and
The plaintiffs having rested, the defendant with the view of showing title in himself to the premises, or at least of showing title out of the state, introduced 1st. Letters patent from Thomas Dongan, Lieut. Governor, under James 2d, of the province of New-York, bearing date the 22d July, 1686, to Robert Livingston. The patent is signed by Dongan, and purports to be sealed with the seal of the province. It recites two prior grants made by the government, and purports to comprehend them in general natural boundaries, described by Indian names: recites that Livingston had been at vast charge and expense in purchasing the tracts and parcels of land from the native Indians, and also in settling and improving the same, and that for encouraging the future settlement he had made application to Dongan that he would constitute and erect the tracts of land comprehended within the general described boundaries, into a lordship or manor. It then proceeds to give, grant, ratify, release and confirm unto Livingston, his heirs and assigns, all the tract and parcel of land, lying and being within the general limits sind boundaries recited, and to erect and constitute the same into a lordship or manor, to be called the lordship and manor of Livingston, giving it a court leet and court baron and other privileges: and reserving to the king the annual quit rent of twenty-eight shillings. On the back of the patent is indorsed the following words and figures: “ May it please your Honor, the Att’y General hath perused this patent and finds nothing contained therein prejudicial to his majesty’s interests. Examined July 8,1686. J. A. Graham. Recorded in the secretary’s office for the province of New-York, in Lib. No. 1, began 1684,
3rd. Will of Robert Livingston, dated 10th Feb. 1722, devising that part of the manor of Livingston, now called the lower manor (town of Clermont) to his son Robert, and all the residue
4th. Will of Philip Livingston, dated 15th July, 1748, devising to his eldest son Robert Livingston, jun. all the lands, tenements and hereditaments within the manor of Livingston, devised to him by his father, and to the heirs of his body lawfully begotten, in fee tail.
5 th. Exemplification of a common recovery to bar or dock the entail, suffered of the manor of Livingston in Oct. term, 1771.
6th. Will of Robert Livingston, jun. dated 31st May, 1784, and proved 8th Dec. 1790, before the surrogate of the county of Columbia, devising all the lands of the manor lying east of the post road leading from Albany to New-York, to the testator’s sons, Robert C., Henry, Walter and John, as tenants in common.
7th. Deed from Walter Livingston to Henry Livingston, dated 14th April, 1792, conveying all his interest in the manor derived under the will of his father, Robert Livingston, jun.
8th. Deed of partition between Robert C. Livingston, Henry Livingston and John Livingston, dated 4th October, 1792, with the map annexed, acknowledged the same day before Robert Yates, chief justice of the supreme court. The deed recites the partition and division of that part of the manor lying east of the post road into four lots, numbered one, two, three and four, and releases to John Livingston lot No. 4.
9 th. Will of John Livingston, dated 19th April, 1822, proved as a will of personal estate on the 30th October, 1822, and of real estate on the 9th September, 1839, devising to the defendant that part of lot No. 4 lying north and west of Roeliff Johnson’s kill, on condition that the testator’s brother Henry should devise to the testator’s son Henry what would be equal to a moiety of lot No. 3.
10th. Will of Henry Livingston (brother of John) dated 21st March, 1823, and proved as a will of real estate on the 25th of September, 1832. This will devises to Henry, son of John Livingston, a moiety of lot No. 3.
Accompanying the paper title the defendant introduced the survey and map of John Beaty, deputy surveyor, made in 1714,
In August, 1765, Robert Livingston, jun. paid to the colonial government the quit rent in full up to March, 1765, reserved in the patent of October, 1715; and in December, 1788, he paid to the state government the rent reserved by the same patent up to September, 1787, and also the sum of £19.12, as a comma
After the defendant had closed his evidence in relation to title, the plaintiffs introduced—
1st. Exemplification of the record of a commission dated 10th June, 1686, from James II. king of Great Britain, to Thos. Dongan. This commission appoints Dongan captain general and governor in chief in and over the province of New-York, Amongst other and plenary grants of power and authority contained therein, is the following: “ And we do likewise give and grant unto you full power and authority, by and with the advice and consent of our said council, to agree with the planters and inhabitants of our province and territories aforesaid, concerning such lands, tenements and hereditaments as now are or hereafter shall be in our power to dispose of, and them to grant to any person or persons for such term and under such moderate quit rents, services and acknowledgments to be thereupon reserved unto us as you, by and with the advice aforesaid, shall think fit; which said grants are to pass and be sealed by our seal of .New-York, and being entered upon record by such officer or officers as you shall appoint thereunto, shall be good and effectual in law against us, our heirs and successors.”
2d. Exemplification of the record of a commission dated 19th October, in the eighth jrear of the reign of Queen Anne, (1709-10,) 'from Queen Anne to Robert Hunter. It appoints Hunter governor of the province of New-York, and gives and grants to him plenary power and authority to act as such. The power and authority to grant lands is in the precise words above recited from Dongan’s commission.
3d. Exemplification of the record of a commission dated 17th March, in the first year of the reign of George I. (1714,) from
4th. Exemplification of the record of a commission dated 30th September, 1682, from James Duke of York, to Thomas Dongan. The commission recites a grant of land, including the province of New-York, to the duke of York, from his brother the king of Great Britain, with the power to govern the same by himself, his deputies, commissioners or officers, and then appoints Col. Thomas Dongan as his lieutenant and governor of the province of New-York, during his will and pleasure to perform and execute all and every the powers which the duke of York, by himself, his deputies, agent or assigns, might execute under the letters patent issued to him from his brother the king of Great Britain.
5th. Exemplification of an extract from the minutes of council, as found in book of Council Minutes No. 5, at page 60, in the office of the secretary of state. It is as follows: “At a council held in Fort James, in New-York, March 22d, 1683, present the governor, &c.—Ordered; That whoever buys land from the Indians the purchase shall be made before the governor in council, and that bargain recorded; and all above Esopus are to be made before the magistrates of Esopus or Albany, at the place nearest to the purchasers, and there recorded; and the purchase to be surveyed, and the survey and record of purchase is to be returned into the secretary’s office. In the survey the quantity of land is to be expressed and how much meadow and cleared land.”
6th. Letters patent from Thomas Dongan, lieutenant governor under James duke of York, to Robert Livingston, dated 4th November, 1684, This patent grants to Livingston, and his heirs and assigns, “ a certain tract or parcel of land, lying and being on a creek, on the east side of Hudson river, commonly called or known by the name of Roeliff Johnson’s kill, it being in three plains called Nekawkook, Nuhpa, Wuhquaskaka, and two or three other small flats or plains, containing in all
7th. Letters patent from Thomas Dongan, lieutenant governor, and vice admiral of New-York, under James 2d, king of Great Britain, dated 27th August, 1685, to Robert Livingston. This patent grants to Livingston and his heirs and assigns “ a certain tract and parcel of land called Taghkanic, lying.and being within the province of New-York, beginning behind Patkook on a certain creek that runs into the east side of Hudson’s river, and then known by the name of Roeliff Johnson’s kill, beginning on the northwest side of said kill, that runs along the flat or plain land, at a place called by the natives Minisichtanock, where two black oak trees are marked with L, from thence along a small hill to a valley that leads to a small creek, called by the indians Qnissickook, and over the said creek to a high place to the westward of a high mountain, where two black oak trees are marked L, and' is called by the natives Kachkawagick; from thence westward to a small hill on the side of a creek, called Skaanpook, where two white oak trees are marked L, and so runs along the east side of said creek, which a little lower is called by the name of Twastewekack, and is the westerly bounds; the tract lying to the eastward of the creek, called the Twastawekack, the southerly bounds beginning on the other side of the creek that runs along the flat or plain over against Minissictanock, where two trees are marked, and runs along the foot of the high mountains to the path that goes to Wanijachtanook, tó a hill called by the indians Mannanosick, where two trees are marked L on the southwest side of the path, from thence westward to a creek called by the natives Nachawawack
8th. Original petition of Robert Livingston to Gov. Dongan for a license to purchase from the Indians “ a piece of land lying upon Roeliff Johnson’s kill, called by the indians Taghkanic behind Patkook, about 200 or 300 acres on the back of this petition is indorsed, in the hand-writing of Spragg, who was secretary of the council, the following: “ This petition being read July 3d, 1685, for 200 acres of the said land, was granted,
. provided it be not disposed of to any others, and that a survey be made and sent into the secretary’s office, and the purchase be made before the magistrate of Albany, and the patent be taken out before the last day of September next; otherwise this license to be void.” This order is also entered in the book in the office of the secretary of state, purporting to be the minutes of council.
9th. The original petition of Robert Livingston to Gov. An-dross, dated 12th November, 1680. This petition sets forth that there is a certain tract of land lying on Roeliff Johnson’s kill, upon the east side of Hudson’s river, near Catskill, belonging to the iridian proprietors, and not purchased by any body hitherto, and that the owners are willing to dispose of the same. The petition requests his excellency’s grant to purchase the same of the proprietors, upon satisfying them to their content, and producing a return thereof from the court of Albany, and expresses the hope that the governor will then be pleased to grant a patent "accordingly.
In addition to the documentary evidence on the part of the plaintiffs, James Redfield, (a clerk in the office of the secretary of state,) testified: that he had examined books in that office purporting to be minutes of the colonial council, but whether
Dr. Edward O’Callaghan, (editor of the Documentary History of New-York,) also a witness called on the part of the plaintiffs, testified that he had been engaged in the secretary’s department since 1848; that he had made search for proceedings of council in Andross and Dongan’s time in relation to the grant of lands to Livingston. He only found in that part of the office under his control, what Redfield testified to in the book of council minutes, and a loose petition. There are a bundle of papers in the office respecting the dispute between Massachusetts and New-York, concerning the boundary line and encroachments on what is called the manor of Livingston. The petition (above recited) is to Dongan, and is in the hand-writing of Livingston,
HamiltonW. Robinson, (one of the counsel for the plaintiffs,) testified that he had searched the office of the clerk of Albany county, for indian deeds to Livingston; he searched from 1670 to 1715. He found no deeds, except the two that have been mentioned.
Upon the defendant’s offering in evidence the patents of 1686 and 1715, the counsel for the people objected to their being read, on various grounds, amongst which was the ground that they
It can not be doubted if either the patent of 1686 or that of 1715, is valid, (as the premises in suit are included in either grant,) the plaintiffs can not recover. This is virtually conceded by their counsel.
The titles to land in the province of New-York, prior to the revolution, originated (with the exception of some Dutch grants,) from the crown of Great Britain. In 1663, Charles II. granted the province by letters patent to his brother, James duke of York. Prior to this grant the Dutch West India Company had seized it, made settlements and issued many grants of land. In August, 1664, the country was surrendered by the Dutch to the English. In June, 1674, the duke of York obtained a new grant from the king of all the territories included in the former letters patent in 1663. During the life of Charles II. the duke of York, as proprietor of the soil, passed grants in fee, by his governors, and after his accession to the throne grants continued to issue under the seal of the province, in consequence of the powers given to the several governors by their commissions and instructions from the crown. It is said that only two instances occur of grants or letters patent for lands under the great seal of Great Britain. All the title to lands in fee, therefore, in the province prior to the revolution, except old Dutch grants unconfirmed, originated from the crown of Great Britain, either mediately through the duke of York before his accession to the throne, or immediately by grants under the great seal of Great Britain, or of the province. (Gov. Tryon’s Rep. vol. 1. Doc. Hist. of New- York, 749, 750.) The courts of this state recognize no
I am of the opinion that the patents of 1686 and 1715 are to be regarded as distinct, independent grants, the one not dependent upon the other, nor either upon a former grant, to give it efficacy. I shall therefore consider the objections taken to them singly. These objections may be, as regards both patents, generally classed under three heads. 1st. That the patents were issued without authority; 2d. That they were irregularly issued ; 3d. That they were fraudulently procured by the grantee.
If letters patent are absolutely void on their face, or the issuing of them was without authority, or was prohibited by statute, or the state had no title, the decisions of the courts very uni
In Boardman v. Peck, (6 Pet. 342,) it was said “ That when an individual claims land under a tax sale, he must show that the substantial requisites of the law have been observed; but this is never necessary when the claim rests on a patent from the commonwealth. In the Arredondo case, (6 Peters, 727,) which was decided in the supreme court of the United States, and which involved the validity of the grant of a large tract of land made by á Spanish governor, prior to the cession of Florida to the United States, it was said with great force, that “ the public acts of public officers, purporting to be executed in an official capacity, and by public authority, shall not be presumed to be an usurped, but a legitimate authority, previously given, or subsequently ratified. If it was not a legal presumption, that public and responsible officers, claiming and exercising the right of disposing of the public domain, did it by the order and consent of the government in whose name the acts were done, the confusion and uncertainty of titles and possessions would be infinite in this country.”
The patent of 1686 is of crown lands. The issuing of it was not prohibited by statute, and the crown had title to the land granted. It runs in the name of Dongan, lieut. gov. and vice admiral of the province of New-York, under James II. and purports to grant by virtue of authority to him derived from the king. It purports to be sealed with the seal of the province, to have been examined by the attorney general, and to have received his certificate that he finds nothing therein prejudicial to his majesty’s interests. It was also, at the date of its issue, entered of record in the book of patents in the secretary’s office of the province.
It is urged that it is void for the reason that it is a patent
A further objection is that the lieutenant governor had no authority to grant, except in cases where the advice and consent of the council were given, and where rents were reserved; that with respect to this grant the council did not authorize, advise or consent, and no quit rents were reserved. The issuing of the patent was a public act of a public officer, and purports to have been exercised in an official capacity, and by public authority. The legal presumption is, in the absence of affirmative proof to the contrary, that it was done by the order and consent of the government. That the authority was previously given or subsequently ratified. If the governor of a conquered province has jurisdiction, by his instructions from the king, or the local laws and usages of the colony, over a particular subject matter, all acts done in its exercise are valid; if there is an abuse of discretion conferred, such abuse is a matter between the governor and his government. (6 Peters, 729.) Were there no evidence in the case, therefore, that Gov. Dongan had authority to issue
“ The grants of colonial governors before the revolution,” says the supreme court of the United States, in the Arredondo case, “have always been and yet are plenary evidence of the grant itself, as well as authority to dispose of the public lands.” “ The actual exercise of authority to make a grant without any evidence of disavowal, revocation or denial by the king, and his consequent acquiescence or presumed ratification, are sufficient proof, in the absence of evidence to the contrary, of the royal assent to the exercise of his prerogative by his local governors.” We have however in this case, on the part of the plaintiffs, evidence of the commissions to Dongan, issued by the duke of York, whilst proprietor of the soil of the province, and by James II. king of Great Britain, in June, 1686. By the former, he is to perform and execute all the powers, which by letters patent granted to the duke of York by his sovereign, the duke himself, his deputy, agent or assigns, might execute; by the latter, jurisdiction over the subject matter of grants of land is specially given; the exercise of this jurisdiction being by and with the advice and consent of the council, and the grants being under the seal of the province, reserving such moderate quit rents as the governor with the advice aforesaid, should think fit.
This it is contended was a jurisdiction that could, only be exercised with the advice and consent of the council, and that without such advice and consent no authority existed. Should this position be admitted, the authority being exercised by the officer with whom it was lodged, tinder the seal of the province, the presumption of law is that such advice and consent were given. It certainly would "not be necessary for the grantee to show primarily and affirmatively, for the purpose of giving validity to the grant, that the council had advised and consented to its being made by the governor. The presumption, of course, would fail, if there was affirmative proof that the consent of the council had not been given, or that it had been with
It is further urged that the patent is void for the reason that it purports to erect a manor, which neither the king nor the
Another objection is, that there is no evidence of a survey of the premises granted prior to the issuing of the patent. The authority of the governor, or the validity of the grant, certainly can not depend on the question whether there had been a previous survey of the premises granted. But the patent itself, as was said in The People v. Mauran, (5 Denio, 389,) “ is prima facie evidence that it was regularly issued—that all things preliminary had been performed and complied with; the legal presumption in such case being that public officers have done their duty, omnia solemniter acta.” (9 Cranch, 87.) Moreover a patent can not be questioned collaterally in a court of law, and avoided for an alledged non-observance of preliminary requisites.
Most of the objections that have been considered relate either directly or indirectly to the questions of regularity, and authority of the officer. The decisions of the courts very generally agree that a patent can not be attacked collaterally for an irregularity in the issuing of it, if it be valid upon its face. The question of authority is always an open one.
There is still another objection to the patent of 1686, remaining to be considered, which avoids the question of regularity and authority. It is that the patent was issued upon the false suggestions of the patentee, and that the crown was thereby deceived. I shall consider this point as though the sovereign himself, who issued the patent, was attempting to avoid it on the ground of deception. In examining the point, we are met in the outset with the inquiries, are letters patent issued by mistake, or upon false suggestions, absolutely void, or voidable only; and may they be impeached collaterally for fraud, or mistake, in a court of law in an action against an individual to recover the possession of the premises granted, or can they only be avoided for those causes in a regular course of pleading in chancery, founded on a proceeding by scire facias, or by bill, or information in which the fraud or mistake is directly put in issue. It is
In the first two classes, the question of title or authority in the sovereign was involved. This all the cases admit may be inquired into collaterally. In the latter class the question of fraud arose in several of the cases, it appearing in some on the face of the patent, and being shown in a few collaterally by the patent itself, and proof dehors the record. In this state, however, it seems to be settled, (and I am to be controlled by the de
Were I inclined therefore in this case, to adopt and act upon the principle of allowing a public grant of record to be assailed collaterally, in an action of this character, by proof dehors the grant, I should do so in disregard of the repeated decisions of the courts of this state, to which it is my duty to yield, and which as authority I am bound to observe and respect. It is urged that a part of the proof here, on which the plaintiffs rely to show the fraud, was introduced without objection, and a part by the defendant himself, and that that should vary the rule. But the case of the People v. Mauran is in point to show that the record not being directly in issue, it can make no difference how the evidence gets into the case.
But were I authorized to look at the evidence dehors the grant of 1686, with a view of determining whether such grant was procured by the fraudulent suggestions of the grantee, I should entertain doubt as to the proof satisfactorily establishing the fact that Gov. Dongan was deceived as to the limits and extent of the lands granted. I should be compelled of course to
It is possible that the tracts first granted did not lie in close proximity, but it is singular indeed, if the plaintiffs’ theory that they were eighteen miles apart, embracing together but 2600 acres, of which much the largest portion was forest land, be the true one, that Livingston should apply, and the lieutenant governor, under the seal of the province, should formally grant by general boundaries, and erect into a lordship or manor, so inconsiderable and then almost valueless territory. Were I called upon to pass upon the question, whether the crown was deceived as to the extent of the grant of 1686; so as to render it void, the only evidence to base an affirmative conclusion, (admitting that the tracts did not lie together) would be the statement in the patent itself that they were adjacent to each other. Making this the statement of Livingston, the inference might possibly be fairly deducible, were there no contemporaneous acts to rebut it, that the agent of the crown was induced to grant all the land included in the patent of 1686, in the belief that nothing was being granted except two small tracts, the title of the crown to which had previously passed to Livingston. But taking into consideration the facts, that from the date of the patent of 1686, during Dongan’s administration and subsequently, Livingston notoriously claimed under the patent a much larger extent of land than 2600 acres, that it was never asserted or pretended by the crown, or the colonial government, that it had been de
I have thus alluded at length to the objections taken by the plaintiffs to the patent of 1686. So far as these objections relate to the questions of regularity or authority, I am of the opinion that they are unfounded. In this I may be mistaken, and may have misapprehended the point and force of the authorities. If so, the appellate courts will correct the error. No one will bow more reverently than myself to their superior judgment. With regard to the question whether a patent may be attacked collaterally for fraud or misrepresentation, when the fraud does not appear on the face of the patent, but is to be established dehors the record, I am constrained to follow the decisions of our own courts. These I deem conclusive upon me, until instructed that the law is otherwise. I should add, however, in relation to the patent of 1686, that upon the assumption that it was issued irregularly, and that even the government was deceived, at the time, as to the extent of the lands granted, a question would still remain, whether in 1691, it had not been ratified and confirmed by an act of the colonial legislature.
In May, 1691, an act was passed by the colonial legislature “ for the settling, quieting and confirming unto the cities, towns, manors and freeholders within the province, their several grants, patents and rights respectively.” This act was subsequently approved by the home government and became a law of this state by constitutional adoption. The first section enacts “that
The second section provides, “ that all the charters, patents, grants, made, given and granted as aforesaid, unto all and every the several and respective corporations or bodies politic of the cities, towns and manors, and also unto all and every the respective freeholders, their heirs and assigns forever, within this province, are to all intents and purposes whatsoever hereby ratified and confirmed. To have, hold, exercise, occupy, possess and enjoy all their and every of their former rights, customs, prerogatives, privileges, pre-eminences, practices, immunities, liberties, franchises, royalties and usages whatsoever, in as full and ample manner as if none of the changes, alterations, disturbances, want of other forms in the law, or the non-feasance of any rights, privileges or customs of any corporation aforesaid had ever happened or been neglected, anything herein contained or in any other law to the contrary in any wise notwithstanding: Provided, that nothing herein contained shall be construed or taken to bar any person or persons of his or their former and just right or pretences to any house, tract or parcel of land within this province; always provided that he or they that have any such just right or pretence do make his or their claim within the space of five years next after the date hereof; and also provided that nothing herein contained shall be intended or construed to the prejudice or hindrance of the title or claim of any
If the intention and effect of the act was to ratify and. confirm as against the crown, all patents and grants of land to individuals, as well as patents and grants of corporate rights and privileges, that had been issued by governors, under the house of Stuart and the then reigning sovereigns, that had passed the seal of the province and been registered in the secretary’s office —the patent of 1686 would be embraced within its provisions. If on the contrary, it was simply intended to save and assure corporate rights and privileges, notwithstanding such rights and privileges might have been technically lost by non-feasance, and also the rights and privileges of freeholders in cities, towns and manors where the charters, patents or grants had been given or made either by the reigning house, then just come to the throne, or the excluded house of Stuart, the patent of 1686 would not be affected by it. For several years prior to the passage of the act, England had been politically convulsed—these convulsions extended to the colonies, and had bred factions either devoted to the house of Stuart or the prince of Orange. The revolution of 1688, having driven the Stuarts from the throne, in 1690 an act of parliament was passed recognizing William and Mary as the lawful sovereigns, and declaring the acts of the last parliament good and valid. This was followed in the province of New-York, the next year afterwards, by the passage of two acts on the same day: The first reciting the troubles which had been brought upon the colony by its political dissensions, and recognizing and acknowledging William and Mary as being, as of right they ought to be by the laws of the realm of England, king and queen, &c. The second was the act above recited. The counsel, for the plaintiffs supposes that the only .intent of the. latter act was to guard against loss from two sources, viz. that from the change of dynasty which had been effected, as was supposed by many, by an unconstitutional measure; and secondly, that if there were conditions to the grant the non-performance of which would operate as a forfeiture, such non-feasance during the troublesome times of the revolution should be saved.
But exclusive reliance is not placed by the defendant on the patent of 1686. In October, 1715, during the administration
1st. That it purports to erect a manor.
2d. That the governor had no power to grant without reserving quit rents.
3d. That the council did not authorize, advise or consent to the issuing of it. These several objections have been considered in reference to the patent of 1686, and the views expressed will not be repeated; it is also urged to be void for other reasons:
1st. That it is not signed. This is no valid objection. In practice probably, the governor generally signed patents that were issued; but as it has been said by the court, “ it is the great seal which authenticates the patent.” (10 Wend. 654.) The fact of the seal being affixed is per se to be regarded as prima facie evidence that the patent was approved of by the governor, and issued by his direction.
2d. That the patent was procured in fraud of the government, by the fraudulent and deceptive representations of Livingston.
Nothing appears on the face of the patent of 1715, showing it to have been fraudulently obtained, or from which the court is called upon collaterally to declare it void; and I have already said that following the repeated decisions of our own courts, a patent can not be collaterally impeached by proof, dehors the record, tending to show fraud or misrepresentation in procuring it. But if the question of fraud was an open one, in an action of this character, greater difficulty would probably arise in impeaching the patent of 1715, on that ground, than that of 1686. It could not be seriously contended that the executive officer of the crown was deceived as to the extent of the grant. Aji actual survey
I entertained the opinion on the trial, and it has been confirmed by subsequent examination, that assuming that the patent of 1686 was defective, and that it had not been aided by the confirmatory act of 1691, that of 1715 was valid and passed the title of the crown to the lands described therein. Whatever may be said respecting the colonial government being deceived as to the extent of the grant, in speaking of the patent of 1686, it is very apparent to my mind that there was no deception in 1715— that if the grant was made in 1686, without knowing that it covered 160,000 acres, the officers of the crown had been undeceived either prior to, or contemporaneous with the issuing of the patent of 1715. The patent of 1715,1 regard in effect as a new grant, made with a full knowledge of its extent, reserving a part of the land originally granted, and investing Livingston and the inhabitants and freeholders of the manor, with additional privileges, amongst which was the right of representation; a right soon after exercised, and never under any pretext called in question by the government. It may also be regarded as a confirmation by the reigning sovereign of the grant of 1686, so far as related to lands embraced in that grant, and which it did not, in terms, specifically except.
My conclusions as respects both the patents of 1686 and 1715 are:
1st. That they were issued in due form to pass the title of the crown, and that nothing appears upon their face to render them void in law:
2d. That the proof does not show affirmatively that they were issued without authority; the grants themselves, in the absence of such affirmative proof, being plenary evidence of authority in the colonial governors:
3d. That the patents being evidence prima facie that they were regularly issued, and that all things preliminary had been complied with, the proof in opposition thereto, is too conjectural,
4th. That if the patents were obtained by fraud or misrepresentation, they can not for that reason be assailed collaterally, in an action to recover the possession of lands; but can only be avoided by a regular course of pleading on bill or scire facias, on which the fraud or misrepresentation is directly put in issue.
Holding that either of the patents is valid, disposes of this case in favor of the defendants. The title to the tract called the manor, (in which the premises in suit are included,) will have been legally in the defendant’s ancestors at the involution. That revolution, with regard to property, in no wise affected their previous rights. The people of this state, by the change of government, acquired no title to lands, not then remaining in the British crown.
Extravagant grants of the public lands with uncertain boundaries by several of the governors of the province, tended doubtless to retard its growth and strength, and lessen the revenue of the crown arising from quit rents. Amongst those most profuse and lavish in granting the king’s land, were Colonel Fletcher and Lord Cornbury, both of whom wielded the executive power of the province subsequent to the revolution which dethroned the Stuarts. No grants seem to have been directly questioned by the crown or colonial government, except some of an extravagant character made by Fletcher. During the administration of the earl of Bellamont, an act was passed by the assembly vacating several of this description of grants. These large grants of land were, in some cases, held under their proprietor by a tenure, not even in the colony favorable to their settlement and improvement, and the moral and social elevation of the tenants. This tenure prevailed at the revolution, and has been continued, though to a less extent, to the present time. That it is antagonistical to free institutions, the enlightened of all classes admit. That it retards the accumulation of property by those immediately engaged in cultivating the soil; paralyzes their energies and weakens an innate sense of independence, can not be denied. That it begets jealousies, excites prejudice
The importance of this case has, I think, been unreasonably magnified. That it should have had any extraordinary importance arises from the fact of the Livingston title being necessarily involved—the land sought to be recovered being comparatively valueless. It was asserted on the trial, that not one-sixth of the original tract is now held under lease—the remainder being granted and held in fee. Much the largest portion of the tract so granted, has doubtless been actually occupied for a long period of time. In relation to lots so occupied, should the people sue or implead the occupant, another and perhaps controlling branch of defence, apart from the paper title, or the recognition of such title by the colonial or state governments, will arise.
Judgment for the defendant.
See also Parmelee v. The Oswego and Syracuse Railroad Co., (7 Barb. S Court Rep. 622.)