6 N.Y. 422 | NY | 1853
When this cause under the title of Constantine v. Van Winkle was before the court for the correction of errors, two questions were adjudicated, first that the deed of John Van Winkle and Jane, his wife, to Jacob Van Winkle of the 5th of May, 1760, was in form sufficient to convey all the right, title and interest of the grantors; and second, that it was valid and operative, without the acknowledgment of the wife ,to bind her and of course those subsequently claiming under her. It has been said that the copy of the deed submitted to the court of errors was different from the one produced before us in this, that the former contained in the covenant for quiet enjoyment, the words “ grant and grant,” instead of the phrase “ covenant and grant,” found in the latter. There are two answers to this suggestion: First, if there was a mistake in the copy before the court of errors, in any matter material, it must have been known to the plaintiff or his counsel, and should have been then corrected or noticed; and that in the absence of all evidence upon the subject, we must presume that plaintiff adopted all requisite measures to protect his own interest. Or, second, if the mistake was wholly immaterial, and of this I have no doubt, no correction was necessary; and as the plaintiff could not have been prejudiced in that court, he should not derive a benefit from the error in this.
We do not mean to be understood there can be no case in which an error in the judgment of the court of last resort, arising from a misapprehension upon the part of the court and counsel as to the existence of a statute, would not be corrected in the same cause, by the same court or those who had succeeded to its authority.
But the error must be manifest; not the mere adoption of an opinion long prevalent, which had been sanctioned by the courts and acquiesced in by the profession, and which had to some extent become a rule of property.
It is only necessary to refer to the facts, that the laws now relied upon as having been overlooked, are not found in any edition of the Colonial Laws, ^and that in Jackson v. Gilchrist (15 J. R., 89, decided in 1818), it was held that, so late as 1711, there was no charter or statute regulation on the subject of acknowledgments by femes covert, to demonstrate that this case does not fulfill the conditions above suggested.
Again, the documentary evidence said to have been discovered since this cause was before the court for the correction of errors, has led me to the conclusion that the court was fully justified in adopting the prevalent opinion that those laws were not in existence when this deed was executed. In the first place, these laws are utterly inconsistent with each other, if with the appellant, we suppose that they
The Dulce's Laws of 1665 require the grant to be acknowledged before a justice of the peace and recorded, to render it effectual in the cases there specified. The act of 1683 provides that no estate of a feme covert should be conveyed but by deed acknowledged in a court of record, the woman being secretly examined. At the same session the legislative assembly enacted that no grants should be of any validity, unless acknowledged or proved before a justice and recorded. The act of 1684 required delivery of possession of a part or the whole of the premises, and a deed acknowledged and recorded as directed by the act of 1683, within one year, to give validity to the conveyance. Married women, it will be perceived, are not alluded to in terms, except in the act of 1683. The several ordinances, it will be perceived, are restrictive, not enabling in their character. The laws of 1665 and 1684, cannot be applied to married women, except upon the hypothesis that they could previously alienate their real estate in the same manner as other grantors; and the phraseology of the charter of liberties, restricting future conveyances, implies the same thing. That this custom would sanction this conveyance, especially since the act of 1771, was held in this case in the court of error's. The appellant is bound to show the usage modified or abrogated by the existence and provisions of-some one of the laws first above mentioned. Now in 1685, after the Duke of York became King of England, the charter of liberties was disallowed; and in the instruction to Governor Dongan, it was provided that “ the other statutes and ordinances, already made within our province of New-York, shall be in full.force, so far as they do not in any wise contradict, impeach or derogate from the commission, or the instructions accompanying it, until you shall, with the advice of our council, pass other laws in our name, which you are to do with all convenient speed.” No ordinances were to be continued, except such as did not
According to the views of the counsel of the plaintiff, there were two acts in force at this time on this same subject, to which a third was added, without the slightest allusion to the former. It is obvious, therefore, that the legislature of 1691 not only declared by resolution, but
The next is the act to confirm certain ancient conveyances, passed in 1771. This act recites the practice to record deeds upon acknowledgment by the grantors before certain
The other questions raised were satisfactorily disposed of by the court, and I concur in the reasoning and the conclusions of the learned judge who pronounced the opinion.
All the judges concurred except Morse, J., who gave no opinion.
Judgment affirmed.