Jackson ex dem. Wickham v. Belknap — 12 Johns. 96

Majority

p. 96

Jackson, ex dem. Wickham, against Belknap.

Headnote

Where by the act of the legislature,. passed GthJpril, 1792, the surveyor general was authorized to sell such lands of W. as C. should discover to have become forfeited by the attainder of W , tinder the act of Octob&i 1779, and pay the moneys arising from such sale, to the treasurer, &c. out of ■which the treasurer was to-pay the demand of C. against W. and the surveyor general sold all the estate of W in a certain lot of land. In an action of ejectment, by a person claim ing under the deed ’ of the surveyor- general, it was held that the act of the legislature, and the deed of the surveyor general were, prima. fade, evidence of title sufficient to enable the _ plaintiff to recover.

THIS; was an action of ejectment ■ for land in the town of Lumberland, in the county oí Sullivan, tried before Mr. Justice Yates, at the" Sullivan circuit, in September, 181.4,. when a verdict was taken for the plaintiff, subject to- the opinion of thé court, on the following case: '

The plaintiff gave in evidence an act of the legislature, entitled “an act to authorize the treasurer of this state to pay to sundry persons the several, sums of money therein mentioned,” passed the 6th of April, 1792. This act, after reciting that William Coclcbiirn, pursuant .to the act of the 9th of March, } c 90, had his accounts and demands against John Weatherkead, whose estaté, by his attainder, had been forfeited to the people of this state,, liquidated and certified; but that all the moneys arising from the estate which had come into the hands of the treasurer had been paid out to other creditors, &c. enacted “ that if the said William Dockbum shall' discover an-y estate/ forfeited by the attainder of the said John Weather-head,, to the surveyor general, and not before disposed of, it shall and may be lawful for the surveyor general to sell the lands so discovered at public vendue, to give a conveyance of the same to the purchaser or purchasers thereof, Avithout warranty, and to pay the moneys arising from such sales into the treasury, and the treasurer shall, out of such moneys, pay the .demands of the said William Coclcburn,v &c., ■:

The plaintiff also gave in evidence a deed from Simeon Demitt,. the surveyor general, to the lessor of the plaintiff, for lot No. 4. in the seventh division of the Minisink patent, the premises in question, of a moiety of Avhich the defendant Avas in-possession. This deed Avas dated the 22d of February, 1810.

The plaintiff next gave in evidence the will of Catharine Dodge, of the city of New-York, dated the 6th of October, 1774, by which she de\dsed to John Weatherkead a lot of ground in the said city, and, also, her messuages, lands, tenements, and hereditaments, situate, &c". in the Minisink patent, whice were purchased by her grandfather, Cornelius Dodge, of

p. 97

John Cholwelland it was admitted, that on the division of the Minisink patent, the lot in question fell to John Cholwell, one of the original patentees.

The premises were vacant until about the year 1792 or 1793, when one Burton entered .and built a log house and a saw mill, but without pretending to claim any title to the land. After being in possession some time, he leased his improvements to two persons, who remained in possession, as his tenants, for several years, and then abandoned the lot. The premises remained vacant three or four years, when Burton again entered, with his son-in-law, Huichnan, and took possession of his former improvement; but neither Burton nor Huichnan ever claimed any thing more than the mere naked possession of the land.

In 1807 Burton sold his possession to Allison Buckbec? who transferred it to the lessor of the plaintiff.

About three years before the trial, Huichnan sold his possession to the defendant.

After the lessor had obtained the deed from the surveyor-general, Huichnan said he thought the lessor had treated him ill, in refusing to admit him as a partner in the purchase of the lot, according to the promise which, he alleged, the lessor had made to him.

The case was argued by J. Duer and Sudam, for the plaintiff, and by P. Ruggles and S. Jones, jun. for the defendant.

The lessor of the plaintiff claims title to the premises in question under a deed from the surveyor-general, bearing date the twenty-second day of February, 1810, and which was given under, and pursuant to, the prov isions of an act of the legislature of the sixth of April, 1792, which, after reciting a claim which William Cockburn had against John Weatherhead, authorized the surveyor-general to sell such lands of Weatherhead as Cockburn should discover to have become forfeited by the attainder of Weatherhead, and which should not have been before discovered. This act, and the deed from the surveyor-general, were, prima facie, enough to entitle the plaintiff to recover; and nothing was shown on the part of the defendant, in ány manner, to rebut this evidence of title. The

p. 98

surveyor-general was a public officer,, executing a special .trust reposed ip him by the act referred to- He was only authorized to sell such lands as Cockburn should discover to- him, to have . become, forfeited by the attainder, of Weatherhead. , It is to be presumed, therefore, that due inquiry was. made by him, ' whether the premises in question w,ere such lands ; and although this inquiry was' ex parte, it was made under the authority "of :the statute, and the title given in' pursuance.thereof is to be received, .'in the first instance, as'given . conformably to"-the, , requisites, of the act, Neither the possession taken by. Burton .In the-year 1792, or by him and Huickman in the;year 1802, . were under claim or pretence of title. They were mere naked possessions, and iiitist be deemed to have been ■ held subservient to the title of the real owner; and whatever right Burton had was purchased by the lessor of the" plaintiff-in the year 1807. The only claim set up by the defendant^ is the possession purchased otHuickhian, about three years before the trial. ■ After the lessor of the plaintiff.had obtained his deed from the surveyor-general, 'Huickman .complained that he had treated "him ill, hi not admitting him a partner in the purchase, according to Kis promise.' This ámounte’d to, a recognition of the plaintiff’s title»' The time iS; not stated, with precision, when these complaints-or confessions were made ; but it must be presumed it was before Huickman sold to the defendant. No objection was .itiade to the evidence ; and if the confessions were made after he had parted with his interest, whatever it was, the testimony would have been- inadmissible. The plaintiff is entitled to judgment, „ ".' ;

Judgment for the plaintiff^.