Jackson ex dem. Boyd v. Lewis — 13 Johns. 504

Majority

p. 504

Jackson, ex dem. Boyd, against Lewis.

Headnote

Testimony to creditCof a wit? that’ she eiThe? a cbmmon próst miasfbifc13 Inad'

B. werésubscritó a deed, both deadattbetimi! hand* writing of A. was proved, and also ttiat he. there'w^e two meats'3upon the «hi?’h “iSUtéd both haeigned % the"otber, and iedgment!knsta*. signed filename •feacalSml.J!h% held?tiV there was sufficient •proof of the ex ecution- of the-deed, and that the first certifi“““tapScí ofthTweS; grantofiiad ex-“íotVtuutat supposifiorTwas, had made a.misofkethe certi™

By the section of the act tojdtieduee* 'concerning ^ví^couniytf ^ntshave'three coS^oVage theV'?ldissenu ahfiuyl^cstrieted to two years,, their dissent they are to give notice to the commissioners, to commence a suit within three years; &c. according to the'directioilsof the third section of the statute’. (I If, R, ¿.-213. 215V

. THIS was an actibn of ejectment, .brought to , recover lot Ho. 94., in the town of Brutus, now Mentz, in the county of Cayuga, in The military tract. The cause was ti;ied before Mr. Justice Yates, at The last June circuit, in the county of Cayuga.

1 Both parties derived their title from Bevins a Soldier; and the plaintiff produced, a deed from Bevins to Benjamin, Walldce, dated the 2d of March, 1796, which was duly acknowledged on the day of the date, And recorded in the' clerk’s office of "the ^. ■ ' . . „ county m wlncff the land then lay, on the; 21st of April, 1796. He also produced an- award of the Onondaga commissioners, dated the 29t'h of August, 1798, by which the premises were awarded, tp- Wattage ; also, á deed from Wallace and his wife, toThe .'lessor bf the plain tiff, -which, was duly ackno wledged on the 4th oí October in the same, year, and recorded in. the clerk’s-'' office bf the county of Cayuga, on the. l-2th of May, 1,806. . ■

The defendant produced in evidence a deed from.Bevins To Hetiry Hart, dated the 9 th of March, 1784,, in which a cdnsideration of- ten-pounds .was expressed, and the subscribing wi’fc rt -n 1 \ in" -rr • nfesses To which were Anthony B, Bradt and- Meyner vi s ge r , 0f -whom were dead at the time of the trial. The signature- . 7 ° , óf the graiitor consisted merely of a mark. This need was duly .¿¿posited in the proper office, at that time, fpr depositing'deeds .relating to the military lands,, on. the 25 th of April, 1795. The - hand-writing -,of Visger,. one of the subscribing witnesses', was .proved by two witnesses,, who were of.opinion, That the: name bf Bradt, the other subscribing witness, tv.as in the hand-writing of Visger. The declarations of Bevins, that he had sold the l.a,nd¡ to Hart, and had received in payment á hat, a.vest pattern, and a plug of tobacco, were proved by two witnesses;.. - a.*z> __ ■ the credit of one of whom, Catharim-Bassettit the plaintiff offer 1 ta iraPeac*h Py proving that in her .younger days- she^ mad been a public prostitute, but the evidence was overruled.by the' court.. Herman Vischer Hart was the heir at law of Henry Hart, now-deceased., He'was bora on the 7,th of September, and on'the 7th of March, 1808, filed his dissent to the award of the commissioners in fávour of Wallace.. The plain- - . . , ,

p. 505

íifí’s counsel obiected to the dissent being given in evidence, on J i . i . ° cj. rr the ground that it had not been filed within two years altor iier man V. Hart came of age, but the judge decided that it was filed in time. The defendant was in possession of the premises, by virtue of an agreement with H. V. Hart for the purchase of the land.

Upon the deed from Bevins to Henry Hart, two acknowledgments were endorsed, one of which was taken before Henry Oothout, a judge of the common pleas of the county of Albany, on the 19th of April, 1785, and stated, that Visger, appearing before him, and being sworn, said, that he saw Bevins execute and deliver the instrument, and that “ Anthony B. Bradt, the other subscribing witness, was present, and did, together with the deponent, sign his name as witness to the execution thereof.” The other was taken before Jeremiah Lansing, master in chancery, on the 2d of December, 1794, which stated, that Visger deposed before him, “ that he saw John Bevins sigh his name, by making his mark, and that he sealed and delivered the sa.me for the purposes therein mentioned, and that he, the deponent, also subscribed the name of Anthony'B. Bradt as witness, for, and by order of, the said Anthony, who was present.”

The plaintiff’s counsel, on the trial, objected to the deed being admitted in evidence, but the judge overruled the objection, and charged the jury, that the only question for their consideration was, whether Bevins executed the deed to Hart; and told them, that the only reasonable construction which they could put upon the acknowledgments was, that the inaccuracies in them were made by mistake. The jury accordingly found a verdict for the defendant, which the plaintiff now moved to have set aside, and a new trial granted. The cause was submitted to the court without argument.

delivered the opinion of the court.

1. There can be no doubt, that the evidence offered to impeach the character of Catharine Bassett was inadmissible. It would not be competent to prove, that she was now a public prostitute, and, much less, to inquire whether she was so in her younger days ; the inquiry should, have been as to her character-for truth and veracity. At all events, this should have been the principafand first inquiry; but that was not attempted;' the in-

p. 506

as. to- any particulaf immoral conduct, is '-not'admissible . . • ' , • , against a witness. . ...... . - - . _ . ,

2, The deed fpóm Be-úiñs, the soldier,, to ÍJart, -fyas. sufficiently. proved, to go to the jury. The, witnesses were both dead, .and the hand-writing of Visger,, one of the witnesses; was fully proved, and the testimony very satisfactorily .shows, that the name of Bradt,the other.-subscribing witness,’ }vas written by Visger ; this did not vitiate the deed. : One witness ivas enough ; the-certificate-of proof endorsed by Judge Oothout, by which it would appear that Visger swore that Bradt signed his name as. a witness, could, at' all events, only go to impeach .-the credit of’ Visger; this was matter -for the jury, and came.within- their, province,, by the submision of the judge to them,of the question, whetherBevins, executed the deed Or not. But it. ought’ not even to be considered as impeaching Visgér’.s character; for the reasonable-solution was, -as the judge told the jury, that it Ayas the mistake of the officer in the form of the certificate,

--3. The principal question in' the cáse,, howe-yer,-is; as to •the dissent, whether Herman ViscHer Hart had .-three} .years', after he arrived to the agé of 21 to enter such dissent, or only- two years, - If the. dissent^ was not, duly entefe'd, the award,. in-: favour, of the title, under which the lessor of the plaintiff-claims, was established, and became conclusive-, by the-award of the Onondaga commissioners; But, with respect to the. time which Hart had to enter his dissent; I cannot see how an^ doubt, can' exist : it must depend upoii the construction ta1 be given to the act;.and whether'this act be reasonable and just, or founded upornspund policy, or not, -we are notfat liberty tp' inquire.- If it can receive but-Ope interpretation, .we are bound, to give that to it, By the third section (1 N. R. L. 213.) the award is declared conclusive after the expiration of two years from the making thereof, unless a dissent shall be entered, and notice thereof given to the commissioners, or filed in the clerk’s office of Onondaga county, and unless the person dissenting-, .|f not-in the-actual .possession,'shall, within- three yearSj Compience a suit at law or inequity, to recoyer the lands, or .estas* blish his right to the same, and prosecute such suit to effect. But the 3th section contains a proviso, that neither this act, nor any thing .therein contained, .shall extend, of be construed to. the prejudice of any persons under the age of 21 years, if such persons shall? within three years after cqming,tq< the- age of 2Í

p. 507

years, make their dissent, and bring their suit, and prosecute the same to effect, as aforesaid. No reasonable construction can fee given to this proviso, without considering it as extending the time 'for entering the dissent, in case of infant claimants, to three years, instead of two, as is required by the. third section, in cáse of adults. Upon any other interpretation, the word three, in the proviso, must be rejected entirely. . The legislature had, undoubtedly, a right to extend the time in favour of infants, if they thought proper, and, indeed, it would seem very reasonable that it should be so done. Two years, in any case, is but a short period for entering a dissent; and the peculiar situation of the. titles to the military land, only would, perhaps, justify the, statute at all. But, considering the time for entering the dissent, in cases coming within the proviso, as extended to three years, then this proviso, and every part of it, is in perfect harmony with the third section. For every thing to be done, after entering the dissent, by persons coming within the proviso, they are referred, to, and are to.be governed .by, the provisions of the third section. But to reject an explicit pro, vision, because reference is made to other parts .of the act, for matters not expressly defined, would be against all sound rules of interpretation. The 8th section expressly provides as to the time within which the dissent is to be entered ; but it is .not pointed out how this dissent is to be entered, or within what time, or where the suit is to be brought. The concluding words of the 8th section,- “ as aforesaid,” refer to these objects, namely, make the dissent, as aforesaid, that is, by giving notice thereof to. the commissioners, or by filing the same in the office of the clerk of Onondaga county, and bring the suit, as aforesaid, that is, within three years, and prosecute the same to effect, as aforesaid, that is, a suit either at law or in equity, to recover the land, or establish, their title to the same, This is the plain and natural interpret tation of the statute, and the one adopted by this court, in the case of Jackson v. M‘Kee, ( 8 Johns. Rep. 429 .,) although this point was not the one then directly before the court. The mor lion for a new trial must, accordingly, be denied.

Motion denied.