Majority
p. 250Bancroft and Wife against White.
Headnote
A person holding under conveyances in fee deduced from the husband of the demandant in dower is estopped from controverting the seism of the husband.Dower for lands and tenements in the town of Canaan, in the county of Columbia, claimed by the demandants, in right of the wife, and as the widow of Daniel Hawes. [*186] *The parties agreed to the following statement of facts.
Daniel Hawes, the former husband of Lois Bancroft, one of the demandants, during the coverture, and for some years previous to, as well as on, th'e first day of November, in the year one thousand seven hundred and eiglity-six was possessed of the premises holding, using, and improving the same in his own right, and not in the right of another; and being so possessed, did on the said fifth day of November, sell the same to one Jacob Brooker for two hundred pounds; and by deed of bargain and sale, bearing date the same day and year, in consideration of the said sum, conveyed the same to the said Jacob Brooker, in fee, with covenant of warranty.
The said Jacob Brooker entered by virtue of the said deed, and continued in possession until the execution of the deed next hereinafter mentioned, occupying in hiu own right.
On the eight day of June, one thousand seven hundred and ninety-five, Jacob Brooker and Huida his wife, for the consideration of eight hundred and ten pounds, conveyed the aforesaid lands and tenements to Silvanus Gardner, in fee, with covenants of seisin and for quiet enjoyment, and containing also a release of dower by the wife.
The said Silvanus entered by virtue of the said deed, and continued to occupy in his own right until the twenty-third day of September, one thousand seven hundred and
p. 251The question for the consideration of the court is, whether, upon this statement of facts, the demandants are entitled to recover? We shall have to contend that they are. In order to constitute a title to dower, three things are required by law; marriage, seisin and death. Co. Litt. 31, a. The first and last are admitted; the second only is controverted. But this, however, we think sufficiently shown
ninety nine, when the said Silvanus Gardner, and Anna his wife, by indenture, bearing date on that day, for the consideration of seven hundred and fifty pounds, conveyed the said lands and tenements (except thirty acres thereof) to Ichabod White, in fee, with covenants of seisin for quiet enjoyment and warranty; and the said Icabod entered by virtue thereof, and has continued to occupy in his own right.
By an act of the legislature, entitled “ An act for the sale and disposition of lands belonging to the people of this state, .and for other purposes therein mentioned,” passed the twenty-second day of March, one thousand seven hundred and ninety-one, it was enacted as follows, to wit: “That all the estate, right, interest, claim and demand *of the people of the state of New-York, of, [*187] in and to any lands, tenements or hereditaments, in the town of Canaan, in the county of Columbia, now possessed by any person or persons, shall be, and hereby is, granted to the respective possessors of such lands, tenements and hereditaments, and to the heirs and assigns of such possessors respectively for ever:” Provided always, that such possessor or possessors, shall be construed and taken to be the person or persons holding in his or her own right, and not occupying and improving in the right of another.
It was not usual in the conveyances of land in the town of Canaan, prior to the passing the above act, for the wives of the grantors to join in the deed.
Umott, for the demandants.
p. 252by the case. It appears that Hawes, the first husband, had a possession for a number of years, using the land as his own, not under any other person. He exercised ownership over it, in the most extensive and complete sense of ¿he word, for he sold it, and that with a covenant of warranty. This, therefore, is enough to show seisin sufficient to entitle to dower; a claim ever favored in law. But should it not in strictness be enough to create a legal seisin, the defendant is estopped[1] and can never be allowed to dispute our claim, for his title is derived through Hawes, the first husband of the demandant, and in his right it is that we claim. Against it, however, the act stated in the case is insisted. This act was passed .to confirm, not to destroy rights, and that of the demandant is protected as well as those of the person in possession. The act operated by way of release and mitter le droit: the nature of which was to make valid not only the estate of the tenant, but that of every other person connected with it; [*188] *therefore, not only the estate of Brooker, but that of every other person connected with it. To this the case in Shep. Touch. 319, is in point. “ A. disseises B. and leases for life to 0. B. releases[2] to A. it .is good for 0.” Hot only the estate of the person in possession, but every one connected,[3] with him is equally within its effect. But from the case it does not appear that the state had any right to release; if so, the seisin ®f Hawes must stand impeached. This case depends on considerations of a very peculiar nature; on the known circumstances attending the lands in Canaan, and the construction of the statute
Benson, contra.
p. 253recited in the case. What seisin now is, is a question. The case in Burrows, Taylor, ex dem. Atl&yns v. Horde, shows what amounts to a seisin, under the ideas now entertained. A possession is not a seisin and yet that is all the seisin here. In that sense of the word Hawes may be said tc have been seised, but in Truesdale'’s Case the court took notice that the whole county of'Kings was taken possession of merely by occupancy. The case states, that Hawes held merely as his own, and not in or by another. The whole country was deemed vacant, and any one took possession. This was the view in which it was beheld by government, and, therefore, in 1791, they passed the law recited. The effect of this was to take no notice of prior occupancies, such as Hawes’s, but- to confirm to such as were then in possession, and who were no lo'nger considered as usurpers. Had Hawes derived his title under the patent he would not have been touched by the act; as he did not, it must be presumed he had only a title by occupancy, and when he relinquished that to another, that other was confirmed against every one else, as Hawes himself would have been. The law was intended to meet cases where the right was by occupancy only. Truesdale entered on a piece of ground supposed to have been vacant; he then moved away; some one *then entered on the same land, [*189] upon which Truesdale brought an ejectment, but this court held he could not recover, because he could not have entered anima possidendi. In 1798, when Hawes took possession, it was vacant land. The reason why his widow is considered as not entitled to dower, -is, that his estate was merely that of occupancy and not a seisin. In any other case ■ but that of lands so circumstanced, it might possibly have been a seisin, but here it could not be; for the whole was a usurpation and a mere occupancy. To this, therefore, the law * of seisin is not applicable. The conveyance and clause of warranty from Hawes, can work no estoppel upon us. Hawes having had possession, might have been deemed en
p. 254titled to a right of entry, and then the warranty was no more than a measure of prudence. It is probable he never sold more than his improvements, as was the custom in that country, and it was inserted merely to have evidence of a better title than that usually given, which was a paroi sale of the improvements. Of all these facts the court will take notice, as they did in Truesdale's Case the present statement does not say the land was granted, and, therefore, the occupancy, and the general circumstances of the country, must be inferred to apply. From what is stated of Truesdale's Case, it is evident that he was a mere occupant — a squatter: here a title is deduced by conveyance, which, as it is in fee, a seisin must be presumed, and this circumstance distinguishes it from Truesdale’s. Possession, in all cases, is evidence of right, and as Hawes’s was relinquished after formal conveyance, the court will not presume otherwise, because we have it not in our power to produce the title deeds from whence he claimed. The widow has them not; they go to the heir, or the purchaser; and as her’s is a favored title, unless they are produced, the court will not infer her husband had no right, or that he was a mere occupant. It is stated that Hawes held in his own right, and this negatives that of any other person. He exercised an act of ownership, and what he did, being in his own right, is inconsistent with that of any in the State. If, in any case, possession will warrant an inference of sei[*190] sin, it will here. * White cannot controvert the title of Hawes; a bargainee, by mesne conveyances coming in under the husband, is estopped from denying the right of the wife, and must admit it. That the state has any claim can admit of little doubt. The act is to confirm previous rights, and must be so construed as to effectuate that intent. Suppose this the case of a base fee, * and before the condition was broken, the act had passed; would the breach of the condition afterwards alter the right
Emott, in reply.
p. 255of the donor ? Besides, the state does not appear to have any interest, and it cannot be presumed. If the fact be so, it ought to have been in the case, which, as it now stands, we have clearly made out.
delivered the opinion of the court. The former husband of the demandant, for some years previous to the 1st November, 1786, was possessed of the premises, and used them as his own, and not in the right of another. He then, for a valuable consideration, conveyed the same in fee with a covenant of warranty, and' the lands have passed, by subsequent conveyances in fee to the present tenant. This is sufficient evidence, in the first instance, of seisin in the husband. The wife is not bound to produce her husband’s deeds, because it is not presumed to be in her power, and in the present case, the tenant claims in fee, under title derived from the husband.[1] The marriage and death of the husband being admitted, there is no question in the case. The court are not to regard lands in the town of Canaan as an exception to the general rules, which would apply, in case the suit had been for lands in another town, nor was the case of Truesdale v. Jefferies,[3] which
[1] [1] See Browne v. Potter, 17 Wend. 164 ; Carpenter v. Weeks, 2 Hill, 341 ; Skerwood v. Vandenburgh, 2 Id. 303; Jackson v. Walter, 5 Cow. 301 ; Sparrow v. Kingman, 1 Cow. 242 .
p. 256
was cited upon the argument, decided upon the ground of such an exception.
Judgment for the demandant.[3]
(a) (a) The general principle is, that a¡ll who derive title under or through the husband, are estopped from controverting his seisin. Therefore, where a tenant under a mortgagor took from his heir a release, and paid off the mortgage, it was held that the tenant could not dispute the seisin of the mortgagor, and that his widow was entitled to dower. Hitchcock v. Harrmgton, 6 Johns. Rep. 290 . The law is the same in favor of the wife of the alienee of the mortgagor, whose right to dower for the want of seisin in her husband, cannot be impeached by a person deriving his title under a grant from the alienee, though (he mortgage was then outstanding. Collins v. Torry, 7 Johns. Rep. 273 An acknowledgment by the defendant that he holds under the will of a grantor, who conveyed to the husband of the demandant in fee, and subsequently re-purchased the land so conveyed, is a recognition of the seism of the husband. Embree v. Ellis, 2 Johns. Rep. 119 . See also Hitchcock v. Carpenter, 9 J. R. 344; Davis v. Darrow, 12 Wend 65 ; Browne v. Potter, 17 Wend. 164 ; Sherwood v. Vandenburgh, 2 Hill, 303 Contra — Sparrow v. Kingman, 2 Cow. 242 .
Footnotes
- (a) (a) Report of the case of Truesdale v. Jefferies, as read in giving the above opinion. This was an ejectment for lands in Canaan and Chatham, (formerly King’s district) in Columbia county, and was argued and decided in April term, 1798. The evidence was, that 18 or 20 years before the trial, the lessor was in possession and continued therein above three years; that he quit-ted the premises, and one Richmond occupied them; that he returned again into possession, and remained perhaps a year; that a controversy arose between him and one Knapp, when he quitted the possession and Knapp entered, and remained in possession until his death; that Knapp died in possession, leaving a widow and four children; that the defendant married the widow, and had been seven or eight years in possession, and held adversely. The plaintiff then gave in evidence the act of 25th July, 1782, and the defendant the act of 22d March, 1791. The act of 1782 stated, that fear and uneasiness prevailed among the inhabitants of King’s district, by rerison of pretences that the whole, or part of the lands, were vacant; and, for remov *256 ing such fear and uneasinesses, it was enacted, that the interest or right of any person to any lands within the said district, and not within any colonial grant, should not be impeached, by reason that the same were not before granted. The court decided that the construction of the act of 1782 was, that it amounted only to a legislative declaration that those lands should not be located; that the possession of the plaintiff was of no avail, for he entered without claiming title, and relied solely on his possession; that, from his subsequent conduct, he must be presumed to have renounced or abandoned his possession, and all claim under it, and (to use a common, but appropriate expression,) he was to be regarded, in respect to the premises, as a mere squatter. Judgment for defendant.