8 Barb. 189 | N.Y. Sup. Ct. | 1850
I shall consider these cases together; for although the pleas are not alike in all respects, one presents all the questions arising on the other, and the difference I shall notice in the proper place. .
It was admitted and cannot be denied, that the people of this state are the owners of all the lands within its limits that have not been granted to others. (Const. art. 1, § 11. 1 R. S. 718, § 1. Plow. 98. 2 Bl. 51, 3, 9, 60. 2 Kent, 320. 3 Id. 377, 487. Wendell v. People, 8 Wend. 188. People v. Denison, 17 Id. 312. Jackson v. Ingraham, 4 John. 163. Jackson v. Waters, 12 Id. 365. Co. Lit. 1. The West River Bridge Co. v. Dix, 6 How. 507. The U. S. v. Chicago, 7 Id. 185. Chipman on Prin. of Gov. b. 4, ch. 2.) Where it is not known of whom lands are holden, it is presumed they are holden of .the king. (1 Cruise's Dig. 13. Booth on Real Act. 135.)
It was said on the argument, that the clause of the constitution declaring that “ the people of this state in the 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 or escheat to the people,” is not a declaration that the people are now the owners, but that they were, and also have the reversion and right of escheat. Neither the reversion, nor the right of escheat, raises a presumption in favor of a present right of possession. But the authorities above Cited go farther. They declare that the state has succeeded to all the rights of the crown. (And see The People v. Thurman,
Upon our independence, the people succeeded to the title to all the real property belonging to the crown; and while it remains in them, it is in many respects subject to the rules of law governing the same before the proprietary change. These rules differ from those incident to land owned by the subject in several important particulars, one of which is that the state cannot be disseised. Disseisin is the wrongful entry Upon, and ouster of, one seized of the freehold. (Co. Litt. 277. Williams v. Thomas, 12 East, 141. Toller v. Burtis, 6 John. 217. 1 Saund. Rep. 319, d, k.) And the king, by reason of his ubiquity, and of his prerogative, cannot be disseised. The authorities upon this point are very numerous. (Kent, C. J. in Jackson v. Winslow, 2 John. 80. Elvis v. Archbishop of York, Hob. 322. Co. Litt. 239 a, n. 5. Booth on Real Actions, 285. 2 Bl. 257. Saville, 68. 17 Vin. 176. 6 Com. Dig. 64, Prerogative, 71. 5 Bac. 562, Prerog. E. 6.) As then the king (or people) could not be disseised, it followed that he could not bring ejectment. He could bring nó action which supposes a dispossession. 11 For the king cannot be disseised, but all intruders are but trespassers to him.” (Elvis v. Archbishop of York, supra. 3 Bl. 257. Adams on Eject. 79. 2 Saund. Rep. 63, c. u. k.) An abator or intruder ousteth no one. (Runn. on Eject. 13.) One in possession cannot bring ejectment. (Jackson v. Hakes, 2 Caines, 335.) Of course, 1 speak of thé rights of the people before the law was changed by statute. 'The king’s lessee could bring
Notwithstanding ejectment, as we shall see, may now be maintained by the people, it may be important to understand the nature of the proceeding known as an information of intrusion. It is said not to be “ real but personal, and to be resembled in all points to trespass; for it supposes the king in possession, as an action of trespass supposes a subject; and the land is not demanded or recoverable, but damages only, as in trespass; and the defendant is to be fined si convincatur de intrusions as in trespass, if he be found guilty of entry vi et armisA (17 Vin. 219.) And to this point, Viner cites the argument of Moore for the defendant in Perrot’s case, against whom information of intrusion was filed by the attorney general of Elizabeth, (Moor, 375.) And to the same effect, is a case in Saville’s Reports, (Sav. 68;) and also, Friend v. The Duke of Richmond, by Hale, Chief Baron, [Hard. 460.) But the pleadings in this proceeding have perhaps the most important bearing upon the case now under consideration. The information may be as general as ip trespass. (Manwood, Ch. B., Sav. R. 48, And see Id. 28.), And a form given in RastelVs Entries is not very special, though it gives the name of the close, and a very brief statement of the manner the queen became seised. (Rast. Ent. 412.) On the other hand, at common law the king, by his prerogative, might put th,e defetidant upon showing his title specially ; and if he pleaded not guilty, he should immediately be put out of possession. (5 Bac. 567, Prerog, E. 7. Com. Dig. Prerog. D. 74.) In a form in Rastell’s Entries, the information
The crown had another advantage. The attorney general could traverse the title of the defendant, and the king had judgment unless the defendant showed good title. And if the king had been once seised, it seems he would hold the land against all having no title; although it were found the king had no title, and the defendant had possession before him. (King v. Bishop of Worcester, Vaughan, 64.) So in Lord Berkley’s case, on information of intrusion, the defendant pleaded that James Lord Berkley was seised .of the entire manor, in his demesne as of fee, and died so seised; and then set out title by descent, &c. to the defendant. The queen’s attorney denied that James Lord Berkley died seised; and the defendant took exception and said that he ought to have said that “ the queen was seised, .without this that said James died seised.” But all the court were of a contrary opinion in case of the queen ; and that she need not maintain her possession, for it will be intended that that continue. Though it was different with a common person. (Sav. Rep. 66. And see the same cause on page 64, Id. and a note of it in 17 Vin. 219.) This difference in pleading is sometimes put upon the ground of office found; but I have already remarked upon this. It is hardly possible to use stronger language than is used in our statute, and now in the constitution, in favor of the right of the people. Office found is not necessary in many cases, and. there is nothing in this case showing it to be one in which that would be required in England, Besides, as we have seen, if the king be once seised, the defendant must show a good title, whether the king has any or not. By the statute of 21 Jac. 1, ch. 14, the defendant was allowed to plead not guilty if the king or those claiming under his title had been out of possession, or had not received the profits of the land within 20 years before
Another familiar principle was, that no laches could be imputed to sovereignty; and it was privileged from the statute of limitations. That was so in England, and is applicable, as a general rule, to the state sovereignties of this country. (Co. Lit. 57 b. 6 Bac. Abr. 562, Prerog. E. D. U. S. v. White, 2 Hill, 60. Ball. on Lim. 69. 1 Cruise’s Dig. 284. 1 Cruise on Fines and Rec. 287.) So that, formerly, no length of possession would be a defence against the claims of the people, except in certain cases to raise the presumption of a grant. (3 Cruise, 558. Eldridge v. Knott, Cowp. 214. Matt, on Pr. Ev. 6. Mather v. Ministers Tr. Church et al. 3 S. & R. 509.) Adverse possession was therefore not properly predicable of crown property. And this was a natural consequence where no statute of limitations affected the crown, and the occupancy was presumed to be in subordination to the legal title. (Podger’s case, 9 Co. 106 a. 3 Cruise's Dig. 554. 2 R. S. 294, § 8.) And indeed where the suit by the crown is now barred under the statute, by the length of time, it is doubtful whether in England the intruder himself can bring any action for an injury to the property, (Goodtitle v. Baldwin, 11 East, 488. 1 Chit. Pl. 161, n.)
Such being the common law, the next inquiry is, what changes have been made by statute. And firstly as to the form of action.
By “ an act for the sale of lands mortgaged to the people of this state, and for other purposes,” passed February 17th, 1806, after reciting that “ whereas doubts have arisen whether an action of ejectment can be sustained by the people of this state; for the removal thereof,” it was enacted “ that every action of ejectment already commenced or hereafter to be commenced, by the people of this state, shall and may be sustained and prosecuted to judgment and execution in the supreme court of this state, In like manner as if such action had been commenced by an
The old Common- law rule in relation to laches, to which we have adverted, has a-Iso undergone material variations by statute. The first innovation was by the statute of 21 Jac. 1, c. 2, by which it was 'declared that the king shall not thereafter sue any person for lands, nor make any claim thereto, by reason of any right or title accrued 60 years past or more, and then in esse, unless he or his predecessors, or some other under whom he claimed, had been answered by force of such right or title the rents, issues and profits thereof within 60 years before the beginning of that parliament; or unless the same had been duly in charge to the king within 60 years, or had stood insúper of record within that -time. And that all persons, according to their several estates and interests which "they had or claimed to have respectively, should thereafter quietly hold against his majesty, his hfeirs and successors claiming by any title, accrued or grown 60 years past, or above, and then in esse, all lands which they or their ancestors, or those from, by, or under whom they claim, had held and enjoyed, or taken the rents, revenues, issues or profits thereof by the space of 60 years, unless his majesty had been answered, &c. (as before.) See 17 vin. 221.) This law by lapse of time became inoperative, and the statute of 9 Geo. 3, ch. 16, (1769,) called the nullum tempus act, was passed. This provided that the king should not sue for lands or make claim to the same by reason of any right or title which had not accrued or grown within áxty years before suit, unless he had been answered the rents, ifcc. within that time, or the lands had been in -Charge, or stood insuper of record, within that time. Our statute, applicable to this case, was passed April 8th, 1801, (1 K. & R. 562, and 1 R. L. 484. And see the original act, 2 J. & Y. 260; and our present statute, 2 R. S. 292.) That statute declares that the people will not sue for lands, &c. or the issues or profits thereof, by reason of any right or title of the people to the same, which shall not have accrued within the space of forty years before suit, unless the said people, or those ’under whom they claim, shall have received the rents and profits,
It will not be seriously contended, that, where the lands of the state have always been vacant until some recent intrusion, the people must fail unless they show a title which has accrued, or was first acquired by them, within forty years, or the actual perception of profits within that period. Such a rule would put all our public lands in jeopardy, and in the power of the first squatter who may be disposed to enter. And it would be a narrow construction to say, because the lands are wild) the state is presumed to have received the rents and profits. That is hardly more than a quibble. The term “ rents and profits” is well understood. No doubt one may receive the profits of land by his own occupancy. So “or” and “and” are sometimes synonymous. (Smith on Const, and Stat. 732, 3.) And if rents or profits were received, it would be a compliance with the statute. They often mean the same thing; though rent is a tribute which issues out of land, as a part of its actual or supposed profits; and the word “ profits,” means yearly “ profits.” (Ivy v. Gilbert, 2 P. Wms. 13. 2 Ves. jun. 480, and notes. 1 Atk. 506.) It would be an inference from an inference, first to presume that the state is in possession because it has title, and then presume it to be in the receipt of profits because of such possession. The real intention is to govern, and no interpretation should be given which takes away the public rights. (Mag. Coll, case, 11 Co. R. 73. Dwarris on Stat. 690, 1, 2.) The reasonable construction is to place the case upon the possession of the defendant or his predecessors. Actual possession by the people is literally impracticable, and so is possession of all our wilderness by tenants. Such a construction will save the rights
In addition to the statute, the answer of Stephen Van Rensselaer denies that the plaintiffs had good title; denies they were the true owners of the lands or entitled to the possession ; and admits that he has taken possession and occupies, and enjoys the land; and claims and holds the same adversely to the plaintiffs. This in substance is only that the plaintiffs have no title, and that the defendant, at the time of commencing the suit, held adversely. Adverse possession at the time the suit is commenced, alone, never prevails. It is time that gives it efficacy. Nor is the general denial of the plaintiff’s title sufficient. We have seen that, as against the people, the defendant must show title in himself, or a continuous possession of forty years. Every plea should be so pleaded as to be capable of trial. (Frary v. Dakin, 7 John. 78.) The people are declared to be the original and ultimate owners of all the lands within the state. The defendants merely deny this in the most general manner, which is in truth only a denial of a presumption of law. Under the code I think this insufficient, in a suit by the people. The defendant may controvert, generally, the allegation in the • complaint, but he must do it issuably. Upon these pleadings, on the trial, who is to begin; and what are the plaintiffs to prove ? It would be preposterous for them to prove the law.
Under our present system of pleading, I think both answers insufficient:
There must be judgment for the plaintiffs; with leave to vamend on terms.