21 Barb. 589 | N.Y. Sup. Ct. | 1855
The trees cut by the defendant had all been severed from the land before the 15th of March. At the date of the deed, therefore, the timber in question had become personal property, and, of course, did not pass by the conveyance, even if it is to be regarded as taking effect at the time of its date. ° But the deed in fact became operative as a grant at the time of its delivery. And this, as .the proof stands, cannot be presumed to have taken place earlier than the 26th of March. At that time, the timber had not only been cut, but it had been entirely removed from the premises,
I cannot agree with the learned judge who presided at the circuit, that although the deed was not in fact executed or delivered until after its date, it is a proper case for the application of the doctrine of relation. That doctrine, as I understand it, is only applicable to cases where several acts are necessary to make a complete conveyance. In such cases, where justice as between the parties requires it, and where it will not operate to the prejudice of third persons, the conveyance will be regarded as having been made at the date of the first act, to which all the subsequent acts will have relation. Thus in the case of a sale of real estate upon execution, the first act is the sale and the payment of the purchase money by the purchaser. The deed is not to be executed until fifteen months have elapsed. But when it comes to be executed, as between the defendant in the judgment upon which the sale was had, and the purchaser, and their privies, it relates back to the time of the sale. (Jackson v. Dickinson, 15 John. 309. Jackson v. Ramsay, 3 Cowen, 75. Rich v. Baker, 3 Denio, 79.) So where a deed is executed in
There was no evidence upon the trial of this action, to show that a contract for the purchase of the lot had been made between the grantors and grantees previous to the execution and delivery of the deed, and yet the learned judge, assuming that the timber had been cut under a license from one of the owners, and that such owner had not in fact executed the deed until after the timber had been removed from the premises, held that the deed, when executed and delivered, took effect by relation, from othe time of its date, and by its retroactive effect revoked the IB cense under which the timber had been cut, as of that date. This, it 'seems to' me, is giving to a mere fiction of law a degree of energy which it has not hitherto been supposed to possess.
There is, I admit, some reason, from the testimony in the
Parker, Wright and Harris, Justices.]