5 Johns. Ch. 224 | New York Court of Chancery | 1821
The plaintiff sets up an equitable right to lot No. 11, in Solan, in the county of Cortlandt. The original patentee was John Thomas, a soldier in the Nezu-York regiment of artillery, in the revolutionary war; and the patent to him for the lot was dated July 9th, 1790. His right commenced with the concurrent resolution of the legislature, of the 27th of March, 1783, and was confirmed by subsequent acts of the legislature. The act ef the 11th of May, 1784, directed letters patent to issue to the officers and soldiers entitled under the concurrent resolution of 1783, and that the' military bounty lands be laid out in the manner therein prescribed. The act of the 28th of February, 1789, directed the commissioners of the land office to lay out these lands into townships, and the townships into lots, and then to proceed to ballot for each soldier’s lot. In this inchoate state of the military rights, the above patentee, on the 5th of September, 1789, (having then an equitable right, but no legal title,) sold, quit-claimed, and confirmed all his “ right, title, claim, and demand,” to the said lands, to the plaintifij by a conveyance, purporting to be a deed in fee, and to be given for a valuable consideration, but which had no seal affixed to it After this conveyance, the act of 6th April,
Thomas, the soldier, is then to be deemed, by the force of this last statute, to have been legally seized of the lot in question, when he sold to the plaintiff, by an instrument intended to be valid, but by mistake or ignorance, not competent to convey an estate in fee, at law, according to the decisions of the Supreme Court. The conveyance, however, was equally valid as if the soldier had been seized in fee at the time of making it; and though it be a defective conveyance, for want of a seal, yet it created such an equity as to bind the lands in the hands of the soldier and of his heirs. The only point in the case is, whether subsequent purchasers from Thomas were also bound by that equity, in consequence of the deposit of that conveyance, under the acts of 8th of January, 1794, and 27th of March, 1794.
I think it is a clear point, that Thomas was bound by the conveyance to the plaintiff, and that it passed all his right and interest in equity. It was not intended to be an agreement only to convey, but an actual present conveyance of all his right and title ; and, in equity, it did pass it. The omission to affix a seal, was a mere mistake, contrary to the intention of the parties; for the instrument concluded with these words: “ In witness whereof, I have hereunto set my hand and seal.” It also contained a covenant, for further assurance, and that he would at any time thereafter, at the request, cost, and charges of the plaintiff, his heirs and assigns, make, seal, and execute any reasonable act, convey-
The act of 8th of January, 1794, directed, “ that all deeds and conveyances heretofore made and executed, or pretended so to be, of and concerning, or whereby any of the said lands might be any way affected in law or equity, should, on or before the 1st of May, 1794, be deposited in the clerk’s office, &c. and if not, that they should be adjudged fraudulent and void, against any subsequent purchaser or mortgagee, for a valuable consideration ; and all deeds and conveyances thereafter to be made, were to be recorded, or to be adjudged fraudulent and void, against any subsequent purchaser or mortgagee, for a valuable consideration, whose deed should be first recorded,” &c. The time for depositing the deeds was afterwards prolonged to the 1st of May, 1795, and it appears in proof, that the conveyance to the plaintiff was duly deposited, in pursuance of the act, on the 27th of April, 1795, and was afterwards duly proved, on the 8th of March, 1799, and the identity of the soldier is perfectly ascertained.
The deposit of these conveyances was intended by the legislature to be notice to all subsequent purchasers of their existence and contents, and the deposit of them would have been, in a degree, useless, if it was not intended to operate as notice. The deposit, as to all deeds and conveyances made prior to the act, was intended as a substitute for the prior registry of them, and to be from the date of the deposit, equiva
When, therefore, Preston purchased of Thomas, and when Matthews purchased of him, they were each of them chargeable with notice of the conveyance of Thomas to the plaintiff, and of its contents. They, therefore, took, subject to that equity, equally with Thomas himself, or with his heirs j and in the words of Ch. B. Eyre, in Morse v. Faulkner, (1 Anst. 14.) “ It is clear, that where there is an agreement to convey, or a defective conveyance by a person then actually having title, that would be such an equity as would bind the lands in the hands of the heir.” So, a defective con
I shall, accordingly, decree, that the defendants, within forty days after the service of a copy of the decree, release and convey to the plaintiff, in fee, all the right and title derived to them as trustees under the will of David Matthews, deceased, to the said lot No. 11, in Solon, by a
Decree accordingly.