Jackson ex dem. Bonnel v. Foster — 12 Johns. 488

Majority

p. 488

Jackson, ex dem. Bonnel and Goodyear, against Foster.

Headnote

S!tmentticandek®ryAmiisn¡ ™noha! tbAiSdei'lndanb peabby°luchrelease jto cjaiip,

evidence to shdwnhstb'Í nanW or ?entto,'onepírAr th"hent fitqratiothér.

Where ex-«cutes a power of attorney, in which he recites his.seisfn.iha lot "of land,xand authorizes his attorney to;selI; which power is .recorded, ánd thé attorney agrees with B. tocoiivey'to him iri'fee, this is such ari adverse posfcessioh-as will defeat the operation of a deed from' any other person claiming'title.tó the-same land, although ho deed had fcefcii executed to B.$ for B,, having paid thé-coDBideratioñ money, is entitled to á deed* and holds adversely ^© everyone. -

TfilS was an --action of ejectment, for part of lot No., 72, in.. RiureUus, and was tried at .the Gqyugq, circuit, in May 1815,. before Mr., Justice Van Mess. . . '

A patent,, 'hearing date -the. gth Of July, -1790, issued to- John Bonnel, who Md-been a private in the Meé-Yérk line, during . . '*■ .. . * *. , . . , * a , • \ 1 < e revolutionary' 7w.arr- was gíyén-m evidence on the part óf plaiutiff. • Also, a power of. attorney from Bonnel. to Goody dated the Ilth ot Septentberj -1807, .authorizing him to se^ fhe premises, and execute deeds in, fee, to -take", possession pf the premises; and to bring suits for the recovery of the pos- * 1 * '•

p. 489

session, and covenanting not to revoke the power, of discharge suits that he might bring: this power was duly acknowledged, .and recorded in the office of the clerk of Cayuga, the 19th of November, 1807, Also, the exemplification of a deed from Bonnet to Goodyear, for the jot in question, dated the 11th of September, 1807, and recorded the 5th tif April, 1811. Also, an exemplification of the record of a judgment, in the case :of Jmkson, ex demt Bonnet, (the present lessor,) against Foster, the -present defendant, rendered,-on a verdict, in August term, 1808, and docketed on the 4th of August, in the same year; the demise, in the declaration in that cause, was laid on the 1st of January, 1807. ' , "

Joel Goodyear testified, that he had a power of attorney from Amasa Goodyear, one of the lessors, which was lost, and stated, (the evidence being objected to, but the objection overruled,) that he was authorized, by the power, to appoint attorneys tinder him, to prosecute suits, to lease or sell the lot, fee. - The deed from Bonnet to Goodyear, was obtained by the witness, and the power from Goodyear to Bonnet, whs taken to guard against any adverse possession that might prevent the operation of the-deed. The witness employed Troup and Richardson, attorneys, to bring a suit for the lot, and gave them a power of attorney for that purpose, as well as to lease the premises. ' A lease was executed by Troup, as attorney for Bonnet, to Foster, the defendant, dated the 13th oí September, 1808.

Troup testified, that the lease, although given in the name of Bonnet, was intended for the benefit of Goodyear, and Was taken on executing the writ of possession against Foster-,, the de•fendant. "

The defendant admitted himself to be in possession.

The defendant then gave in evidence a deed of release, from Bonnet to himself, and several others, in consideration of 500 dollars, for lot No. 72, in Aurelius., dated the 29th. of September, 1808, Also, a power of attorney from Stephen Thorn to Joseph Grover, dated the 27th of April, 1805, and recorded in the clerk’s office of Cayuga county, the -17th of October, 1806, reciting that Thorn was seised in, and authorizing Grover to sell the said lot No. 72. Also, an-agreement between Grover, as attorney of Thorn, and Samiiel Foster, dated the 1st of April, 1806, by which -Grover agreed to convey to Abraham and Samuel Foster, 100 acres of lot No, 72, on the payment of 500

p. 490

dolíais. Also, á release ciidorsed on the" said article, dated the 20th qí April, 1805, from Abraham Bróíer, the .defendant, and Samuel Foster,'oí eighty acres, part of the one hundred acres mentioned therein; and another agreement, dated the 1st of April',-lS0'5? between Grover, as Thomts attorney, ■ añd ^áSra-: &m and Samuel Foster,, by which- Grover agreed to convey to them fifty.acres, and twenty acres, of the said lot; the twenty acres, last 'mentioned,: are the premises in question, the'"whole consideration' for which had been, paid! The defendant also gavefin evidence,"a partition deed, between! the defendant and Others, the* grantees in the deed from Bonnet to Foster.;' ’ .. ■'

A verdict was ¡taken for the plaintiff, subject to the opinion "of the c'ourt, on a case’td be made,-' ■

Sill, for the plaintiff.

Kellogg, contra.

The plaintiff cannot recover finder the demise from Bonnel; for the defendant having his release, he is estopped from claiming any title. .( 10 Johns. Rep. 166 . 9 Johns. Rep. 55 .) Can Goody cor recover, '1st, in consequence of the lease from Bonnel to the defendant, on the 13th oí September, 1808 ; and,, 2d, on the ground of a deed from Bonnel, the patentee,... prior, to the, defendant’s' deed? The defendant’s "lease from Bonnel ’does not luvnisli to Goodyear a right to recover., Parol evidence cannot-bé admittéd ;-to Show that .a lease, reserving a-rent to Bonnel^. and .which purports to be ", for his sole use,- was meant, and. -intended to be, for the benefit of another" person-, This is• explaining away a deed, "and contradicting it, in' the most essential manner, contrary to every principle of law. If this be so, then the' powers of attorney, whether'well ¡proved or not,- become ' immaterial. This leads to the second .ground t The evidence "of adverse possession, «'when Bonnel conveyed to' Goodyear, h as strong' in‘this .case" as in. ,the ease of Jackson v. Wheeler, ( 10 Johns. Rep. 164 .,) where'we held, that this very deed was inoperative. The only difference is this : •in that case, Thornh&á' conveyed' to Edward Wheeler hy -deed'; here, ..his ;power - to Gjover, 'which was on record,'.'recited his seisin,-in fee, and he covenanted to convey by warranty deed, 'arid, had -been -paid the consideration- jnoney, ' The •defend'ant’fi

p. 491

possession is not the less adverse from his not having a deed in his pocket; he was entitled to a deed, and held adversely to every one.

Judgment for the defendant.^[1]

(a) (a) Vide, Jackson, ex dem. Bonnel, v. Sharp, ( 9 Johns. Rep. 163 .) and Jackson, ex dem. Bonnel, v. Wheeler, ( 10 Johns. Rep. 164 .) S. C.