Majority
p. 89Jackson, ex dem. Woodruff and others, against Gilchrist.
Headnote
Whether eofo. pial actofmi, ^femecovertm this state, ’ be therwísf thanWhere thejustice aof °4e oftbe acimowl ^§menst°tfe| that a., andB. before him “ to tii^Mentore and deed-”°it ^ certificate understood to ™iattiieparties came. before the justice to acknowledge with such an further, that knowledge It; and that, after such a lapse of time, the private examination of the wife ought to be presumed; and that the estate acquired under a deed thus acknowledged, was confirmed by the act of 1771.
The charter of 1683, of James Duke ot York, was not in force after the revolution, in 1688.
The preamble of a statute may be referred to, to explain the enacting part, when it is doubtful, but not to restrain its meaning when clear and unambiguous.
The statute of 1771, “ to confirm certain ancient conveyances,” provided, that no claim to any real estate whereof any person was then actually possessed, should be deemed to be void upon the pretence that theyéme covert granting the same, had not been privately examined: it seems that in respect of new and unsettled lands, tne constructive possession arising from the right of property, is sufficient to satisfy the words of the act, such possession being sufficient, in other cases ; as to entitle the husband to an estate by the curtesy, or to enable the owper to maintain trespass.
THIS was an action of ejectment brought to recover part of lot No. 2, in the subdivision of lot No. 8, in the thirteenth general allotment of the Kayaderosseras patent, being about 119 acres of land, situate in the town of Clinton, in the county of Saratoga. The cause was tried at the Saratoga circuit, in September, 1816.
By the patent of Queen Anne, dated the 2d of November, 1708, a tract of land called Kayaderosseras, was granted to Nanning Hermense, Johannes Beehman, Rip Van Dam, Ann Bridges, and nine other persons. Ann Bridges, afterwards, married Joshua Hunloke, and the plaintiff deduced a regular title by descent from her. By deeds of lease and release, dated the 10th and 12th of February, 1711, between Joshua Hunloke of Elizabethtown, in the province of East New-Jersey, gentleman, and Ann his wife, of the one part, and Peter Fauconier of the city of New-Yorlc, merchant, °f the other part; the parties of the first part, in consideration * of the sum of 60¿. New-Yorfc currency, conveyed to the party of the second part, in fee, the thirteenth undivided part of the Kayaderosseras patent. On both deeds the following endorsement was written : “ This day came before
p. 901. The lessors of the plaintiff have proved a complete right, by descent, from Ann Bridges, one of the patentees of the Kayaderosseras patent, to the premises in question. But it will be attempted, on the part of the defendant, to show that Ann Bridges aliened her title, by the release of the 12th of February, 1711, from her and her husband, (Joshua Hunloke,) to Peter Fauconier. We shall, therefore, contend, (2.) That the deed from Hunloke and his wife, was altogether void and inoperative as to her and her heirs at law. It is a clear and settled principle of the common law, that a conveyance, or other contract, of a feme covert, unless by some matter of record, is absolutely void, and not merely voidable, and it cannot be affirmed, or made good, by any subsequent agreement. (2 Bl. Com. 293. Perkins, § 154. 1 Sid. 120.) The husband has no power to convey his wife’s land in fee; and if she joins in. the conveyance, unless by matter of record, it is absolutely void. If she joins in a lease for a term of years, it is voidable only. As the conveyance by Ann Bridges was not by fine,
me, one of his majesty’s justices for the county of Essex, the within-mentioned Joshua Hunloke, and Ann In's wife, to acknowledge this indenture to be their acts and deed; this nineteenth of February, one thousand seven hundred and eleven, alias twelve. Attested per me, Jno. Blanchard.” The defendant’s title was derived from this deed through sundry mesne conveyances.
A partition of the patent, pursuant to the act of the 8th of January, 1762, was commenced in 1769, and completed and filed in the clerk’s office of the county of Albany, on the 4th of March, 1771, by which lot No. 8, in the thirteenth general allotment of the patent, was drawn to the share of Ann Bridges. Several deeds were given in evidence, on the part of the defendant, to show acts of ownership and assertion of title by persons deriving title from Fauconier; and paroi evidence was also given in support of the defence of adverse possession; which, however, it is qot necessary to state. ,
A verdict was taken for the plaintiff; subject to the opinion of the court, on a case to be made.
Henry, for the plaintiff.
p. 91or matter of record, and as she was not privately examined, and her acknowledgment taken as to the execution of the deed, according to the act, it is void; and her estate, on her decease, descended to Hunloke Woodruff, a minor, who resided in Maw-Jersey, until just before the commencement of the revolutionary war, and who, about the close of the war, came to Albany, where he resided until his death, in July, 1811. His children are the lessors of the plaintiff. But it will be said that the act of the colonial legislature of Mew-York, passed the 16th of February, 1771, (Van Schaack's edit, of the laws, p. 611.) confirmed and made valid this conveyance. That statute, if it has any operation on this case, goes to devesta right vested in H. W., the heir by the common law; and ought, therefore, on general principles of law, to be considered as void. By the charter of liberties and privileges granted by the proprietary government, or the Duke of York, passed October 30, 1683, and which was the Magna Charta of the inhabitants of the province, it is declared, “ that no man, of what estate or condition soever, shall be put out of his [lands or tenements, nor taken, nor imprisoned, nor disinherited, nor banished, nor any ways destroyed, without being brought to answer by due course of law.” It also declares, “ That no estate of a feme covert shall be sold or conveyed but by deed acknowledged by her in some court of record, the woman being secretly examined, if she doth it freely, without threats or compulsion of her husband.” (See 2 N. R. L. Appendix III. IV. V.) It contains the principle of the English Magna Charta, and of the Bill of Rights of the people of this state, that no person shall be disseised of his freehold, &c. but by the lawful judgment of his peers or due process of law. (1 N. R. L. 45.) The Magna Charta of England is a limitation of the powers of the British parliament ; and a colonial legislature, which could make no laws-repugnant to the laws of England, nor claim that omnipotence which is said to belong to parliament, could not make a law in violation of this great charter of rights. (1 Bl. Com. 138, 139.) The act was, therefore, void, as contrary to the laws of England. In the case of Gardner v. The Trustees of the Village of Newburgh, ( 2 Johns. Ch. Rep. 162 .)
p. 92the chancellor held, that the legislature could not take away private property, even for necessary public purposes, without providing a fair compensation to the owner; and he cites numerous authorities, in support of this doctrine, from books of jurists, and the codes and constitutions of different countries. This court has, also, in several cases, recognised the same doctrine. (Jackson v. Catlin, 2 Johns. Rep. 248 . 263 . Dash v. Van Kleeck, 7 Johns. Rep. 477 —508. Catlin v. Jackson, in Error, 8 Johns Rep. 520 . 539—556.) But if this statute is not void, it is inapplicable to the present case. Being in derogation of a common law right, it must be construed strictly. It affects those deeds only where the persons claiming under them are in the actual possession of the land. The words are, “ That no claim to any real estate whereof any person is now actually possessed, whether as tenant in common, or otherwise, shall be deemed void upon the pretence, that the/eme covert granting the same had not been privately examined before any of the public officers,” &c, Mere constructive possession is not sufficient. There must be an actual pedis possessio under the deed. Again ; the act confirms those deeds only where the feme covert had not been privately examined before public officers, Sic. This can refer only to public officers or magistrates of the colony of New-York, not to a case like this, where the acknowledgment was in Essex county, in Jlew-Jersey. It will be said, perhaps, that there is a presumption arising from lapse of time, that the right of Ann Bridges has been extinguished, But the case affords no evidence of any acts or facts which can authorize this presumption. From mere silence or inaction no inference can be drawn, or presumption raised of the extinguishment of right, for a time short of the period of the statute of limitations. No matter how many conveyances there may be, or through how many hands the land may have passed, the presumption cannot avail, unless possession accompanies the claim of right. A presumption from mere length of time, to support a right, is very different from a presumption to defeat a right. (Phillips' L. of Ev. 117, 118—124. 10 Johns. Rep. 377 . 7 Johns. Rep. 5 . 1 Caines, 84. 6 Binney's Rep. 416. 10
p. 93The lease to De Groff affords no evidence of a constructive possession. He entered, and was possessed in severalty, by metes and bounds, and his entry cannot be extended beyond those limits; and those claiming under him can go no further. The rents issued out of this particular parcel, and afford no evidence of a constructive possession of the whole ; besides, the covenant is to pay all the quit rents to the crown. Mere perception of profits does not amount to an ouster of possession. (1 Bl. Rep. 675. 2 Bl. Rep. 690. Cowp. 217. 1 Wils. 176.) The payment of taxes is not evidence of possession. (Jackson v. Myers, 3 Johns. Rep. 388 .) The defendant must show, affirmatively, the facts from which the presumption is to be drawn. i. The lessors of the plaintiff are the fifth generation from the patentee ; and during more than a century, there has been no assertion of right on their part, or by any of their ancestors ; and from the date of the deed of partition, until the commencement of this suit, there has been no act of ownership or assertion of claim on the part of the lessors. After such a lapse of time, their claim is to be regarded with a jealous eye; and every possible indulgence, as to presumption, ought to be shown to the defendant, in order to quiet the extensive possessions under this patent. The deed from J. H- and Ann Bridges is technically and formally drawn, and is duly executed by the grantors, and acknowledged before a justice of the peace. It is objected that this acknowledgment by the wife was not made according to the laws of the colony of New-York, and that the deed is, therefore, void. But, we contend that there is no evidence of the existence of any law of the colony, at the time the deed was executed, which required any different mode of
Mass. Rep. 105 . 5 Cranch, 262 .) There can be no adverse possession in this case; for the defendant entered, claiming title from J. H. and Ann Bridges, by an inoperative conveyance. They derive title from the ancestors of the lessors of the plaintiff, and cannot allege that they entered adversely. (Jackson v. Sears, 10 Johns. Rep. 435 .) There is, also, a recital in the deed which estops him from setting up another title. (Phillips’ Evid. 355.)
Van Buren, (Attorney General,) and Van Vechten, contra,
p. 94taking the acknowledgment. The Charter of Liberties and pr¡jVnCges granted by the Duke of York, the 30th of October, 1683, for the better establishing the government of the province, &c. which has been cited to show the existing law of the colony, never had the force of law. The authority of it was denied by the first colonial legislature, which commenced in 1691, under William and Mary. They disavowed all the acts of the Duke of York, as such, or as James II., after he came to the crown, and passed a new bill of privileges, which was afterwards repealed by the king, the 11th of May, 1697. (Journ. of Gen. Ass. p. 8. Bradford's ed. Laws of New-York, 1. 4.) In 1710, Mr. Bradford published his revision and digest of the laws of the province, which contain no reference to the Duke of Yorlds charter, l In 1752, another revision of the laws was made by Smith and Livingston, and they take no notice of this charter. In March, 1772, an act was passed to revise, digest, and print the laws of the colony, and Van Schaack was authorized to revise, digest, and collect all the laws in force in the colony, from the revolution, (1688,) until that time. (Van Schaak's ed. Laws, 676.) The first act in these collections is in the names of William and Mary, passed the 6th of May, 1691, for quieting and settling the disorders in the province; and for establishing and securing their majesties’ present government from like disorders in future; and declaring that no power or authority could be held or exercised in the province but what was derived from the magistrates. There was, then, no act, statute, or charter, existing in the colony, regulating the mode of conveyance by a feme covert. Indeed, the preamble to the act of 1771, clearly shows that there was no previous statute regulation on the subject. Again ; it is said, that, by the common law of England, a feme covert cannot convey her estate, unless by matter of record, as by fine, or common recovery; and that the deed is, therefore, void at common law. But what evidence is there, that the common law of England extended to the province, or that it was in force here, as such, prior to the constitution of the state? New-York, by the name of the New-Netherlands, was a Dutch colony, until 1674, when it surrendered to the Duke of York, and was
p. 95ceded to England by the treaty of Breda, in 1667, and the duke afterwards, in 1674, took out a new patent from the crown. It was a conquered province ; and being held by right of conquest, the common law of England was not, of course, introduced; but the former laws and customs continued in force until actually changed, and new laws imposed. The common law does not attach to a conquered province, without a special ordinance for that purpose. (2 P. Wms. 74, 75. Blankard v. Galdy, Salk. 411. 1 Bl. Com. 107, 108. Tucker's ed. of Bl. Com. 381. Smith's. Hist. of N. Y. Carey's ed. 268. 271. note, opinion of Sir John Randolph.) By the articles of capitulation of 1664, (art. 11.) between the Dutch governor and the English commissioners, the Dutch laws and customs were expressly saved and secured to the inhabitants ; and this was recognised by an act of the legislature of the colony, passed the 5th of July, 1715, (Van Schaack's ed. laws, 97.) There was, then, no English common law, rule, or custom, existing on the subject; and the preamble to the act of the 6th of February, 1771, (Van Schaack's ed. p. 611.) speaks of the ancient practice of the colony to record deeds so acknowledged, thereby excluding the idea of any statute having been passed, relative to conveyances by feme coverts. On one of the deeds, given in evidence, and set forth in the case, from J. Ross and his wife, dated the 26th of November, 1750, there is an endorsement of the 19th of May, 1769, that the wife then appeared before D. Horsemanden, Esq. chief justice of the supreme court, &c. and acknowledged it to be her voluntary act and deed, and it was, therefore, allowed to be recorded. A similar proof, or acknowledgment, of the deed of De Groff, was taken before Judge Smith. Indeed, our records are filled with deeds by married women, upon their' acknowledgment before justices of the peace, judges, and various public magistrates, without any private examination. A similar practice, relative to conveyances by feme coverts, existed in all the colonies. (Davy v. Turner, 1 Dallas, 11. Lloyd v. Taylor, 1 Dall. 17 . Lessee of Watson v. Bailey, 1 Binney's Rep. 470. Fowler v. Shearer, 7 Mass. Rep. 14 . 18, 19.) The supreme court of Pennsylvania thought it a most proper case for the application of the maxim, commit
p. 96nis error facit jus. A custom of a particular town, or county, as to conveyances by infants and feme coverts, has been considered as an exception to the general rule of the common law. (Hob. 225. Bro. Abr. 320. pl. 15.) Thus, in the case in Dyer, which is very analogous, the custom, in the town of Denbigh, in Wales, that a feme covert might aliene her land,by surrender and examination in court, was held good and valid, (Dyer's Rep. 363. b.) notwithstanding the statute of 27 Hen. VIII. ch. 26. If, then, there was no legislative provision, requiring a different mode of acknowledgment, or conveyance, will the court disturb these possessions, for a slight mistake in a matter of form ? In Jackson v. Schoonmaker, ( 2 Johns. Rep. 230 . 234.) where a deed had been proved, by the oath only of a surviving trustee, before a judge, in 1750, Kent, Ch. J. said, that, until 1771, “ the practice of taking the proof of deeds was loose and unsettled. That the practice in the colony, before that time, was undoubtedly to be regarded on a question touching the validity of an ancient deed find the deed was held valid, so as to establish the plaintiff’s title. A strict and lateral conformity to a statute will not be required in such a case. Admitting, even, that there was a statute of the colonial legislature on the subject, requiringa private examination of the wife as to the execution of a deed, it does not appear, and is not to be presumed, that the act required the magistrate to endorse a certificate of such examination, on the deed; he might have been brought into court, as a witness, to prove the fact. Is the defendant 'to be concluded, because he cannot produce that evidence ? If he has lost the evidence, by lapse of time, or accident, it may be supplied by legal presumption. It is not pretended, that this was not a bona fide conveyance, for a valuable consideration ; and there are facts and circumstances sufficient to support the presumption. At most, there has been an omission only of a mere legal formality. The presumption required is to support a right. The deeds were put on record, and a deduction of title is recited in them, and they might have been, seen by A. B. or her heirs; but no act has been done by her, or those claiming under her, until 1815, questioning the validity of the deed from her. The other claimants
p. 97under the patent, by their deeds, to Degroff, in 1768, acknowledge the defendant’s title. No matter, though they were released in severalty; they were all founded on the validity of the deed of A. B. Possession taken under those deeds, was possession against her and her heirs, and they say nothing. This amounts to an acquiescence. Again; in 1769, commissioners were appointed to make partition, and notice of their proceedings was published, in the gazette, according to the act. This was a statute notice to all the world. Surveys were also made, and surveyors entered on the lands under the defendant, yet nothing, during all the time, was said by any of the lessors, or their ancestors. It is fair, then, to presume, that they knew, or believed, that the right of A. B. was vested in Fauconier. There was, afterwards, a subdivision made, and releases executed, containing recitals as to the title, which were duly recorded. Again; H. Woodruff resided in the city of Albany, and practised as a physician there, for thirty years, almost within sight of the premises, yet preserved a profound silence, as to any claim, as heir of A. B. Surely, under these circumstances, and after a lapse of more than a century, the court will presume every requisite formality, as to the acknowledgment of the deed. In Goodtitle v. Duke of Chañados, (2 Burr. 1065. 1072, 1073.) Lord Mansfield lays down the principle of law, as to these presumptions, that where the presumption, as in this case, is in the nature of evidence, it must have some ground on which it is to be founded. As if a man have a power to suffer a common recovery, every thing will be presumed to have been dope rightly and regularly, until the contrary appears. So, if a person interested to object to a recovery, has had an opportunity to malee objections, but, inste.ad of doing so, has acquiesced under it, this affords a presumption that all was right and regular. (Elridge v. Knott, Cowp. 214.) In Goodright v. Straphan, (Cowp. 201.) it was held, that a re-d,elivery by a wife, after the death of her husband, of a deed delivered by her when covert, was a sufficient confirmation of such deed, so as to bind her, and that circumstances alone were equivalent to such a re-delivery. Even an act of parliament
p. 98may be presumed ; and a deed, or grant, is often presumed, - not because the court believe that any deed ever existed, but for the sake of quieting possession. (Cowp. 102. 215. Jackson v. M'Call, 10 Johns. Rep. 377 . 380.) “ It is,” says Lord Erskine, (Hillary v. Waller, 12 Vesey, 266.) “ because there are no means of creating belief or disbelief, that such general presumptions are raised upon subjects of which there is no record or written.muniment. Therefore, upon the weakness and infirmity of all human tribunals, judging of matters of antiquity, the legal presumption holds the place of particular and individual belief.” (Phillips' Law of Ev. 170.) The recitals in the deeds, it is true, show that we derive our title from Ann Bridges ; but they state, also, that the grantors acquired, by lease and re-lease, in 1711, and by subsequent mesne conveyances, a valid title. It is not true, that nothing short of a pedis possessio, will. support the presumption of the existence of a deed, or grant. Acts of ownership on one side, and notice of them, and acquiescence on the other, are sufficient. The presumption is raised for the furtherance of justice, and for the sake of peace. Acquiescence in acts calculated to impress the idea of a conveyance of title, or ownership, has a tendency to deceive, and to lull third persons into a belief of the fact. On this principle, it has been decided, that if a person, having a title, or claim to land, stands by and sees a stranger convey it, without making known his claim, he is concluded by his silence. In the cáse of Jackson, ex dem. Livingston, v. Schutt, decided in 1796, and affirmed in the court of errors, ( 3 Johns. Cas. 118 , 119.) this doctrine was settled; and, that possession may be shown, not merely by a visible fence, but by acts of ownership, applicable to the nature of the property. Where a person has a colour of title, and enters under a deed, an entry into part, will be deemed an entry into the whole. An actual inclosure, or pedis possessio, of the whole, is not necessary. Now, here are' surveys, deeds of partition, entries, and acts of ownership, on the part of the defendant, and those under whom he claims, for above 50 years past. (12 Co. 5. Van Dyck v. Van Beuren, 1 Caines, 84. 91. Jackson v. Demarest, 2 Caines’ Rep. 382 . Jackson v. Walsh, 3 Johns. Rep. 226 . Roe v. Ireland, 11
p. 99East, 280. Goodtitle v. Baldwin, 11 East, 488. Bergen v. Bennet, 1 Caines’ Cas. in Er. 1. 1 Hay. N. C. Rep. 61. 2 Hay. N. C. Rep. 345.) Again; a conveyance in fee, by a feme covert, is not absolutely void. Lord Mansfield, in Goodright v. Straphan, admitting the distinction between deeds in fee and leases, says, the exception was allowed for the advancement.of agriculture and tillage ; that the court ought to look into the substance of th.e deed; that it is in substance a mortgage, though in form a lease for years; that the wife was bound by it, and her subsequent acts set up the mortgage against her. His argument, however, is more subtle than sound; if the deed was a nullity, and void, how could it be confirmed, so as to operate ab initia ? He concedes the doctrine, that the deed of a feme covert may be confirmed. (Cowp. 201. Wotton v. Hele, 2 Saund. 180. n. 9. Roupe v. Atkinson, Bunb. 162, 163. Brooke Ab. Accept. 6. 2 Roll. Ab. 26. pl. 2. Jackson v. Murray, 7 Johns. Rep. 5 —11. England v. Slade, 4 Term Rep. 682.) If necessary, therefore, a release from Ann Bridges, after she became discovert, or from her son, John Hunloke, or from his grandson, Hunloke Woodruff, may be presumed. 3. The lessors of the plaintiff are barred by the covenant of warranty, in the deed from J. Hunloke and wife, to Fauconier. The deed contains full covenants on the part of the grantors and their heirs, and the title set up by the lessors, is by descent from the heir of the grantors. (Co. Litt. sec. 711, 712.2 Bl. Com. 301. 306. Gilb. Tenures, 133. 12 Mod. 512. Vaughan, 366. 7 Bac. Abr. 234. Cruise’s Dig. Tit. 32, Deed, ch. 4. sec. 9—29. 4 Dallas, 168. 2 Roll. Abr. 786. 787. pl. 1. Co. Litt. 265. sec. 446. 1 Ld. Raym. 779. Saunders on Uses, 332—369.) The counsel here entered at large into the law as to collateral warranties, and contended, that it was in force in the colony, until the act for the amendment of the law, passed the 8 th of March, (Van Schaack’s edition of laws, 767. 770. See, also, stat. 4 Anne, c. 16. s. 21. 1 N. R. L. 525. sess. 36. ch. 56. s. 26.) when collateral warranties were abolished ; but as the court did not take notice of this point, it is unnecessary to state the argument further. 4. The deed of 1711, by J. H. and Ann Bridges, was confirmed and made valid by the act of the colonial legisla
p. 100turc, passed the 16th oí February, 1771. The preamble gives a precise, description of the case before the court. The act is declaratory and remedial. It is a statute of peace, made in favour of bona fide purchasers. It ought, therefore, to he construed liberally. The second section, providing a mode, in future, for the proof and record of deeds, shows, that before that time there was no statute regulation, or settled rule, on the subject. But it is said, that this act was void, on general principles, as contrary to the charter of liberties of the province and magna charla. This is very delicate ground, The greatest caution ought to be observed in questioning any of these old colonial acts, on which so many titles to property, in this state, now rest. How many titles ^depend on the acts for confirming partitions, however informal or imperfect ? In Van Schaack’s edition of the laws, (p. 31.) is a remarkable act, passed the 12th of May, 1699, for vacating certain patents, granted by Governor Fletcher, declared to.be extravagant. In 1782, and 1786, acts were passed abolishing entails. (Sess. 6. ch. 2. Sess 9. ch. 12. 1 Greenl. ed. of Laws. 205, 206.) Did not these acts equally interfere with vested rights ? Next, as to the power of the colonial legislature to pass such an act. The constitution of the state, (art. 35.) declares what shall be the law of the state; that is, “ such parts of the common law of England, and the statute law of England and Great Britain, and of the acts of the legislature of the colony of New-York, as together, formed the law of the colony on the 19th of April, 1775,” &c. The framers of the constitution recognize and adopt these colony laws ; they never meant to re-enact them. An act of the colonial assembly, with the assent of the King of Great Britain, had all jthe omnipotence of an act of parliament. Magna charla even is subject to the power of the parliament. In Great Britain the absolute sovereignty is in the parliament. It can do no wrong. (Co. Litt. 110. a. 4 Inst. 36. 1 Bl. Com. 51. 90. 160. Wood’s Inst. 455. 2 Bac. Abr. 109. 5 Com. Dig. 220.) Where are we to look for the constitution of the colony ? Surely not in the charter of liberties 'granted by the Duke of York. Even that declares that no hian shall be disseised except by the judgment of his peers,
p. 101and the law of the province. Whence did courts of juslice derive their powers. From the common law—from custom and usage; but the common law may be altered by statute. In Jackson v. Catlin the act was a privote, not a public act, and passed at the instance of the parties. The British parliament, notwithstanding magna charla, may exile their subjects, and pass acts of attainder and forfeiture. After the constitution of the state was adopted, and the bill of rights declared, the legislature passed bills of attainder, and abolished entails. The council of revision (Const. art. 2.) was intended to check improvident and unadvised acts of the legislature ; yet, if two-thirds of the legislature adhere to an act, it becomes a law, notwithstanding the objections of the council. If, then, an act of the colonial legislature, when assented to by the king, has the force and effect of an act of parliament, how can it be impeached or questioned, though it devests a vested right ? A similar legislative power was exercised in all thq colonies. (Laws of Maryland, 1715, ch. 47. Laws of North-Carolin a, p. 143. Laws of South-Carolina, 132. Acts of Georgia, 63. Laws of Connecticut, 265. Laws of Delaware, 144. &c.) This was a subject of legislative provision in all of them, for quieting possessions and securing bonafide purchasers ; and we have no evidence of these acts having been questioned in the courts of the several states. But if, as we contend, the deed was valid, A. B., or her heirs, had no vested right in the land, for she had conveyed it away; and the ancestors of the lessors have acquiesced in the statute for above 40 years. The act did no more than courts of justice often do, by the aid of presumptions, to quiet possession. Again; it is said that the act must be strictly construed; but being beneficial and remedial, it ought to be liberally expounded. (6 Bac. Abr. 374. 388, 389.) Here has been an adverse possession of part, under a claim of title to the whole, for about 60 years; a progressive series of acts of ownership and possession to this day, hostile to all notion of a title in the lessors of the plaintiff or their ancestors. All these amount to actual possession within the meaning of the act. The defendant may avail himself of the acts of his co-tenants; the partition commenced in 1769, when the
p. 102whole tract was surveyed under the direction of the surveyor-general, and the record of partition was filed the 24th of January, 1771, in the office of the secretary of state. In 1771, most of the land in the western and northern parts of the state was wild and unoccupied, lying wholly in grant; and if the objection here made is to prevail, most of the titles to lands in those parts of the state will be shaken. 1. It is said, that this being a conquered country, the common law of England was not in force here, unless specially introduced by some ordinance or statute. Blackstone (1 Com. 107.) lays it down, that if an uninhabited country be discovered and planted by English subjects, they carry with them all the laws of England which are applicable to their situation. But in conquered, or ceded countries, that have already laws of their own, they remain until expressly changed. This was not, in fact, an uninhabited country when first discovered. It was possessed by the" native Indian tribes. The aborigines having been conquered by the European adventurers, the laws of the Iroquois, according to the argument of the defendant’s counsel, must have prevailed. Again; if conquered from the Dutch, then the Dutch law must have continued in force. But the fact is, that the American colonies were held by right of discovery, and not by conquest; and Judge Tucker, in excepting New-York, is mistaken in point of fact. Sebastian Cabot, in the service of Hen. VII., discovered the country in 1497, from the 38th to the 68th degree of north latitude, and grants were made under the north and south Virginia patents, from the 34th to the 45th degree of north latitude, long prior to the discovery, by Hudson, of the river which bears his name, and before the Dutch settlement. The Dutch were intruders; the civil wars in England alone prevented the government of that country from immediately expelling them; and the colonists of New-England were not in a situation to exert themselves against their new neighbours. The fact is, contrary to all theory and speculation, that the English came into possession in full sovereignty, and that the laws of England have prevailed here from the beginning ; not all the laws of England, but such as "were
Henry, in reply.
p. 103applicable to the situation of the colony. Such, for exampie, as the law of descents, the law as to baron and feme, &c. Whence did the colonists derive their criminal law, and their modes of trial 1 Nay, English statutes operated in the colony, and were acted upon long before any re-enactment of them by the colonial legislature. Such were the statutes of uses, for abolishing the feudal tenures ; concerning wills, and the distribution of intestate’s estates; concerning/rowds, distresses, rescue, execution, escape, juries, heirs, and ancestor, and many other statutes which might he mentioned; all of which were in force, though not re-enacted after the Dutch were conquered. A few of the statutes were reenacted in 1772, to remove obscurity; but it was not until 1778 that the legislature began to re-enact various English statutes, for the purpose of removing all inconvenience and doubt as to which of them were in force. The constitution speaks of the statute law of England and of Great Britain as being the law here, that is, the English law before the revolution, and the British law since. The act for revising and digesting the laws of the state, passed the 15th of April, 1786, (1 Laws of N. Y., J. & V's ed. 281.) after reciting this clause of the constitution, directed that all such statutes of England and Great Britain, as were a part of the law of the colony on the 19th of April, 1775, should be brought in, in the shape of bills, to be enacted. In this form the statute of 6 Edw. I. c. 3. (omitting only the clause respecting assets,) the statute of 32 Hen. VIII. c. 28., and 4 Anne, c. 16. s. 1. were enacted, thereby affording, by necessary implication, the sense of the legislature, that they extended to the colony; though the 6 Edw. I. c. 3. and 32. Hen. VIII. c. 28., were never enacted by the colonial legislature. The common law of England, then, being in force here. Ann Bridges, a feme covert, could not convey her estate by such an acknowledgment as that made of the deed of 1711. The deed, as to her, is absolutely void. (1 Bl. Com. 444. Co. Litt. 326. a.) The rule of the common law is founded in sound policy ; there could be no good reason for not adopting it here ; and it was expressly adopted in the charter of liberties, which does not appear to have been repealed. If there was any exception, in this respect, to the common
p. 104law rule, it lies on the defendant to show that exception, rpjje ]essors 0f the plaintiff are entitled to the full benefit of the common law. If there was a law or usage of the colo- , ny, as mentioned' in the preamble to the act of 1771, of taking the acknowledgment or proof of deeds before a member of the king’s council, a judge of the supreme or county court, or a masterin chancery, it lies with the defendant to show that any other officer might take the acknowledgment, and that a bare acknowledgment, without any private examination, before a justice of the peace in Newt-Jersey, was sufficient., The certificate of acknowledgment is given by a justice of the peace of Essex county, (JV. J.) who states merely that the parties appeared to acknowledge ; nof that the wife was.privately examined by him, whether she executed the deed voluntarily. It is true, the court will look at the usage or practice of the colony, but there must be evidence of such usage or practice. A particular case does not prove u,sage. The practice must be general, before the maxim of Communis Error facit Jus, can apply. 2. The act of 1771, we repeat, was void. The colonial legislatures were limited in their powers. (1 Bl. Com. 107—109.) The right of property is an inherent right; it is declared, says Blackstone, by the great charter, that no freeman shall be disseised or devested of his freehold, or of his liberties, or free customs, but by the judgment of his peers, or by the law of the land, which Coke says, means by process of law. (2 Inst. 53. note 8.) Private property cannot be taken without the owner’s consent. (1 Bl. Com. 138, 139.) Our bill of rights is copied from magna charta. (4 Bl. Com. 423, 424. 1 N. R. L. 46.) As to the acts passed in the other colonies; if they were arbitrary and unconstitutional, they afford no authority or precedent for us. Besides, it will be found that in all the other states, they proceeded on usage, and the private examination of the wife was indispensable. In Davey v. Turner, (1 Dallas, 11.) there was a private examination of the feme covert, and an usage of above fifty .years, was found by the special verdict. Again; in Lloyd v. Taylor, (1 Dallas, 17.) the constant usage of the province appeared in evidence. So, in Watson v. Bailey, (1 Binney, 470.) there was a priva e examination, and an act of the co
p. 105lonial assembly of the 24th of February, 1770, as to usage, was given in evidence ; and in Fowler v. Shearer, ( 7 Mass. Rep. 14 —18.) Ch. J. Parsons puts it on the ground of imme mortal usage, and provincial regulation. The defendant, in this case, ought, in like manner, to have given evidence of the usage, if he intended to rely upon it. Again ; the conveyance is by lease and release, which operates only by virtue of the statute of uses, under which nothing passes, but what the grantor has a right to convey, and actually does convey. (Sanders on Uses, 378. 4 Cruise’s Dig. 112. tit. 32. ch. 6. s. 43—47. Id. tit. 32. ch. 13. s. 16.) If a tenant for lifé. alienes by feoffment, it is a forfeiture of his estate ; not so, if he conveys by lease and re-lease ; for a conveyance by the statute of uses does not produce a disseisin. The husband cannot disseise the wife. (2 Bac. Abr. Discontinuance, C.) De Groff and Groat were in possession of two small lots, separately. A possession of a nook or corner of the patent cannot operate as a possession of the whole. De Groff entered only for a part, and his .entry is for his right, and co-extensive with it. A possession which is to countervail the legal title, must be a pedis possessio, a real and substantial inclosure, an actual occupancy, definite, positive and notorious. (Jackson v. Schoonmaker, 2 Johns. Rep. 280 .) There can be no extension of possession by construction, where it is against the right owner. The partition, under the colonial act, was only according to the rights of the parties ; it can have no effect on the rights or claims of third persons.. There was, then, no actual possession ; and so the statute does not apply. Again; it is said, we should have asserted our right by actual entry ; but an actual entry is not necessary, except to avoid a fine. (Doug. 483.) Admitting, even, that the wife was disseised, no actual entry was necessary, in order to . maintain this suit. The third section of this act shows what the legislature meant by actual possession. It speaks of actual possession by a purchaser for twenty years past. Next, we are told that we are bound by the collateral war ranty. The defendant’s counsel deny that the common law was in force in the colony; and yet set up the doctrine of
p. 106collateral warranty to bar the plaintiff. Where is this docrine to be found, but in the ancient common law of England ? But, we repeat, the colonists not only brought with them the common law, but all the statutes passed to meliorate that law, and to adapt it to the progressive improvements of society; and wretched would have been their condition, in many respects, without the benefit of those remedial statutes. Collateral warranties were considered in England as a great grievance ; and as early as in the 50 Edw. III., the commons petitioned the king to declare that no warranty should bar, unless where assets descended from the warranting ancestor. The statute of Gloucester, 6 Edw. I. ch. 1. had been already passed, which declared, that if a tenant by the curtesy aliened the estate which he held by the curtesy, with warranty, his heir should notbe barred by such warranty, unless he inherited lands of equal value from his father. By this statute, then, the collateral warranty, in this case, would be defeated, unless the ancestor of the lessors had assets, which does not appear, but the contrary has been shown by the defendant. (2 Inst. 291. 1 Inst. 365. a. 4 Comyn. Dig. Guaranty, H.5. 4 Cruise’s Dig. 56. tit. 32. ch. 6. s. 18, 19.) Besides, the statute of 4 Anne, c. 16. s. 21. which abolished collateral warranties, was in force in the colony, though not reenacted until 1773, and then from motives of policy, merely, and to .remove all doubts on the subject. Our statute (sess. 24. ch. 169. s. 7. 1 N. R. L. 183.) is a re-enactment of the stat. Gloucester, leaving out the clause as to assets, so that no collateral warranty whatever, or in any case, could bar the issue of the inheritance of the mother. This shows the sense of the legislature as to these collateral warranties. The counsel proceeded in answer to the defendant’s counsel, as to the nature and effect of the collateral warranty; but it is unnecessary to state his argument further. Again ; the defendant, and those under whom he claims, pntered under the deed, and so under the husband, and. co-extensive only with his right; and as his estate ceased at his death, they were only tenants by sufferance, and could not destroy that relation, except by an actual disseisin. Then the case of Jackson v. Sears, ( 3 Johns. Rep. 433 .) applies. There A. entered into possession of land,
p. 107and afterwards received a deed from his father and mother, but which was not acknowledged by the mother, to whom the land belonged ; it was held, that the acceptance of the deed repelled the evidence that he entered adversely to the title of his mother, and he was deemed to hold, under the deed, his father’s estate only, for life; and on his death, the land reverted to the mother and her heirs. (Jackson v. Parker, 3 Johns. Cas. 124 . Jackson v. Sharp, 9 Johns. Rep. 163 .) Next, as to the presumptive evidence : the principle is, that “ Long and undisputed possession of any right or property, affords a presumption that it had a legal foundation, and rather than disturb men’s possessions, even records have been presumed.” (2 Peake’s Ev. 22.) Omnia preesumuntur solemniter esse acta. Where there had been uninterupted possession for ages, a grant from the crown was presumed. (12 Co. 5. Bedle v. Beard.) But these presumptions are allowed only to make out a defendant’s title against third persons, (1 Caines, 84. Jackson v. Woolsey, 11 Johns. Rep. 456 .) not against a clear derivative title. The presumption is founded on actual possession, which must accompany and go along with the deed. In Palmer v. Hicks, ( 6 Johns. Rep. 135 .) the court say that they will not presume a grant of land under navigable water to the owner of the adjacent soil, without evidence of long exclusive possession and use to warrant it. In the cases cited by the other side, the usage was considered as evidence of a grant, or agreement; but this evidence may be repelled by showing that the usage was limited, &c. (Phillips’ Ev. 120, 121.) The usage which is supposed to be founded on a grant, or agreement, determines also the extent of the supposed grant. The right granted is considered as commensurate with the right enjoyed. (Phillips' Ev. 124. 4 East, 339, 340.) There is no such evidence in this case. No adverse possession whatever has been shown prior to 1787. (Jackson v. M'Call, 10 Johns. Rep. 377 . 380. Jackson v. Lunn, 3 Johns. Cas. 109 . 118.) Time, or antiquity of title, is nothing, without a possession going along with it. (2 Peake’s Ev. 110. (112, 113.) Bull. N. P. 255.) There can be no presumption against a clear
p. 108title deduced from the government, short,of an actual pbssessjon for 20 years. The presumption is admitted only in aid of a defective title. Multiplied presumptions cannot avail any thing, unless founded on actual possession. A deed 100 years old is nothing without possession. The mere record of a deed, for the sake of preserving the evidence of title, is no notice, though a registry, made necessary to support title, is so. A survey of land is not evidence of possession. Every presumption may be rebutted by other evidence; by paroi evidence, or any kind of proof which goes to destroy it. (Runn. Eject. 284.) Presumption arises from ' acts, not from non-feasance. There is no evidence of any acts done by A. Bridges to raise a presumption. Again; presumptions are to supply facts about which there is no: proof. Now, here the deed itself is produced, and the court are called upon to presume that deed to be a legal and perfect conveyance. They produce a defective deed, and ask that it be presumed good. If the deed had not been produced, there might have been some reason for presuming every thing in its favour. In Jackson v. Vosburgh, ( 9 Johns. Rep. 270 .) the court say, that the possession, in common,. had existed so long, that a title, in common, might have been presumed, had not th'é defendant shown a will ak the source from whence he derived title; and that being abandoned, the door was shut against presumption in favour of any other title.
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notice many of the questions which were brought under examination on the argument.
It is contended, on the part of the defendant, that Ann Bridges, who had intermarried with Joshua Hunloke, parted with her title by the deed, executed by her and her husband, to Peter Fauconier, bearing date the 12th day of February, 1711. It is objected, however, on the other side, that this deed was not acknowledged in such a manner, as to devest the title of a feme covert. The acknowledgment purports to have been made before John Blanchard,; and his certificate, endorsed on the deed, is in these words: “ This day came before me, one of his majesty’s justices for the county of Essex, the within mentioned Joshua Hunloke, and Ann his wife, to acknowledge this indenture to be their acts and deed, this 19th day of February, 1711. John Blanchard. In the deed, the grantors are described as of Elizabeth-Town, in the province of- East New-Jersey, and the grantee as of the city of New-York. At the time this acknowledgment was made, we had no colonial act on the subject. This has given rise to a very interesting discussion of the question, how far we were governed and controlled by the common law, in the acknowledgment of deeds by femes covert, and by which a feme covert could be devested of her title only by fine, or some matter of record; and on which proceeding she was required to be examined privately, or by the court, to ascertain whether she has parted with her estate freely, and without compulsion from her husband. But there being some diversity of opinion on th,e bench, how far the common law mode of proceeding was at that time in force here, it has been thought unnecessary, at present, to decide that point. It may, however, I think, be assumed, that, in point of fact, and as matter of practice, the common law, in this respect, has never been adopted with us; and it may not be amiss, briefly to observe, that, in some of our sister states, which were British colonies, and equally with us subject to the common law, the mode of acknowledgment adopted in this case, has been substantially recognised and sanctioned. In the case of Davey and Wife v. Turner, ( 1 Dall. 11 .) decided in the supreme court of Pennsylvania, as early as the year 1764, it
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was placed on the ground of usage and custom, and the maxjm; communis error facitjus. The force and effect of such usage was again noticed in the case of the Lessee of Watson v. Bailey, ( 1 Bin. 470 .) where Yates, J. very justly observes, that the maxim just alluded to, had great weight, when the most injurious consequences would flow from counteracting it. Lord Coke says, (2 Inst. 28.) usage has prevailed, even against magna charta. In the supreme court of Massachu setts, Ch. J. Parsons, in the case of Fowler v. Shearer, ( 7 Mass. Rep. 20 .) speaking of an usage in ..that state, as to conveyances by married women, says, that estates never have there been conveyed by fine, in which the wife might be examined, and, by her consent, be barred by the fine; that whatever was the origin of the usage, it could not be disallowed, without shaking very many of the existing titles to real estates; and that it must now be considered as the law of the land. But, as the decision of the case before us is placed entirely upon the colonial act of 1771, (Van Sch. ed. Laws, 611.) it is unnecessary for me further to notice the usage on this subject, or to inquire hoxv far we were then bound by the common law. I have barely referred to some cases that have arisen in other states, where a similar usage has been sanctioned, to. show that the common law mode of conveyance, by fine, was not in practice there, nor, most likely, in any of the British American colonies; What part of the common law of England was in force here, before the American revolution, has been a subject of very considerable doubt and difficulty; (Smith's Hist. of N. Y. 372. 381.) and is not now intended to be decided.
The colonial act to which I have referred, purports to be an act to confirm certain ancient conveyances; and recited that, “ whereas it has been an ancient practice in this colony to record deeds concerning real estates upon the previous acknowledgment of the grantors, or proof made by any of the subscribing witnesses before a member of his majesty’s council, a judge of the supreme or county court, or a master in chancery, and sometimes before a justice of the peace. And, whereas, there are lands and tenements held under the deeds of femes covert, not acknowledged in manner aforesaid, and yet made bona fide, and for valuable consideration,
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the purchasers whereof, and those holding under them, ought to be secured, both in law and equity, against the respective - grantors, their heirs and assigns. It was, therefore, enacted, that no claim to any real estate, whereof any person is now actually possessed, whether as tenant in common, or otherwise, shall be deemed to be void, upon the pretence that the feme covert granting the same, had not been privately examined before any of the public officers or magistrates aforesaid.” The act, then, proceeds to direct the manner in which deeds, thereafter to be made, should be acknowledged and recorded. The provisions of this act apply so directly to the deed in question, that all objections to the title derived under it must cease, unless the act itself can be got rid of. The inference drawn by the counsel from the form of the certificate of acknowledgment, (that the parties came before the magistrate to acknowledge, &c.) that no acknowledgment, in fact, was made, cannot be correct. An acknowledgment was deemed necessary, andt the parties went before the officer for the purpose of making it; and it would be a most unreasonable conclusion, that it was not, in fact, done. The officer could hardly have been guilty of so absurd and nugatory an act, as to give a formal certificate, that the parties came before him to acknowledge the deed, if they did not actually acknowledge it. Nor are we to conclude, that because the certificate does not state a private examination of the wife, that no such examination took place. After such a lapse of time, this might, and ought to be, presumed; especially as there was no statute in any manner prescribing the -form of the certificate. But the act of 1771 meets the case, and declares that the estate shall not be deemed to be void, upon the pretence that the feme covert granting the same had not been privately examined before the officer. It is not necessarily to be inferred from this provision, that it applied to cases where no private examination had, in fact, been made. The act was intended to confirm ancient conveyances, and to prevent the want of evidence of a private examination being set up to avoid the deed, presuming the evidence of the fact to be lost by the lapse of time.' Had it been intended to make good a deed
P
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where no private examination at all had taken place, it would, probably, have been so declared in terms, and not have spoken of this defect as a pretence, which, by no means, necessarily, implies "an. admission of an entire omission of such examination. This construction is strengthened by the provision in the next section, that in all acknowledgments, thereafter, the officer taking the same shall set forth, in his certificate, that the wife had been privately examined, and confessed that she executed the deed freely, without any fear or compulsion of her husband. Assuming, then, that a private examination was, in fact, made, though omitted to be set out in the certificate, the great object in view at the common law has been answered, to wit, to ascertain whether the wife acted under fear or compulsion. In a conveyance by common recovery, the feme covert was not examined privately, she being in court, or presumed to be there. The examination of the judges destroyed the presumption of the law, that she was'acting under the coercion of her husband. (10 Coke, 43. 2 Roll. Abr. 395.)
Several .objections have been taken to this act, however, which it is necessary to notice. It is said to be against the express provisions of the Charter of the Duke of York of 1683, which declares that no estate of a feme covert shall be sold or conveyed, but by deed acknowledged by her in some court of record, the woman being secretly examined, if she doth it freely, without threats, or compulsion of her husband. (2 N. R. L. App. IV.) If this charter was in force here when the acknowledgment in question was taken, and when the act of 1771 was passed, there would be weight in the objection ; but, I believe, it has been the general, if not the universally received opinion, that this charter was not in force here after the revolution of 1688. In the journals of the general assembly of New-York, of the 24th of April, 1691, we find the following proceedings :
“ Upon an information brought into this house by several members of the house, declaring, that the several laws made formerly by the general assembly, and his late royal highness, James, duke of York, &c.: and, also, the several ordinances, or reported laws, made by the preceding governors and council, for the rule of their majesties’ subjects within
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this province, are reported, amongst the people, to be still in force : resolved, nemine contra dicente, that all the laws consented to by the general assembly under James, Duke of York, and the liberties and privileges therein contained, granted to the people, and declared to be their rights, not being observed, and not ratified and approved of by his royal highness, nor the late king, are null, void, and of none effect; also the several ordinances made by the late governors and councils, being contrary to the constitution of England, and the practice of the government of their majesty’s other plantations in America, are, likewise, null, void, and of none effect, within this province.” (1 Vol. Journals, 8.) We do not find this charter published in any edition of the colonial laws, as we most undoubtedly should, had it been considered in force. By a resolution of the general assembly of the 12th of November, 1709, (1. Vol. Journals, 267.) Mr. Bradford is directed to print all the acts of the general assembly of the colony then in force since the arrival of Col. Stoughton; (January, 1689.) and the charter of the Duke of York would, undoubtedly, have fallen within the scope and purview, if not within the letter of this resolution ; for that charter purports to be enacted by the governor, council, and representatives, in general assembly, and by the authority of the same. That the charter of the Duke of York, as such, was not considered in force after the revolution of 1688, is very obvious; because the general assembly of the colony, in 1691, passed an act declaring what are the rights and privileges of their majesties’ subjects inhabiting within the province of New-York, in which many of the provisions in the charter of the Duke of York are incorporated, and, doubtless, all that were intended to be in force; among others, the very provision relative to conveyances by femes covert. (Brad. edition of the laws, 2. 5.) But this act was repealed by the king on the 11th of May, 1697, as appears by a marginal note in Van Schaack's edition of the laws, (p. 5.) and which was made pursuant to the authority given him by the act of 1772, (Van Schaack's edition of the laws, 676.) appointing him to revise and digest the laws of the colony. The charter of the Duke of York not being included in this revision, affords irresistible evidence, that it
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Was not deemed to-be in force here; for he was' authorized and required to revise, digest, and cause, to be printed, all the laws, from the happy revolution, down to the end of the then session, (1772.) From this view of the acts and proceedings of the colonial legislature, we may very safely conclude, that in '1711, when the acknowledgment in question was taken, there was no charter, or statute regulation en the subject in force here ; but that a loose and unsettled practice prevailed, as is set forth in the recital to the act of February, 1771. ■ It, therefore, became highly necessary and proper, that what had been done under such usage, or practice, should receive legislative sanction.
It has also been contended, that this act interfered with thé vested rights of' the heirs of Ann Bridges; and, on this ground, ought to be declared null and void. Without entering into the question, of the authority of the court to set, aside the act altogether, it is certainly a delicate power, and ought to be exercised cautiously, and in extreme and palpable cases only. We do not consider the one before us as one of that class. It is an act, confirming and quieting the title of bona fide purchasers, and sanctioning an ancient custom, as to the form of acknowledgment. Such an act ought to receive a liberal and benign interpretation, for the purpose of securing titles derived under such deeds. In Jackson v. Schoonmaker, ( 2 Johns. Rep. 234 .) this court, in speaking of the loose manner of taking the proof of deeds, prior to the act of 1771, say, that the practice in the colony before that time, is, undoubtedly, to be regarded on a question, touching the authority and validity of an ancient deed. By the custom, in some cities and boroughs in England, a bargain and sale, by the husband and wife, where the wife iá examined by the mayor, or other officer, binds the wife, after the husband’s death. (2 Inst. 673,) By the statute 34 Hen. VIII. ch. 22. all such customary conveyances are declared to be of force, notwithstanding the statute, 32 Hen. VIII. ch. 28. which required the conveyance to be by fine, levied by the husband and wife. The statute 34 Hen. VIII. refers to, and sanctions certain customs, which had existed in some cities, boroughs, and towns, as to taking and acknowledging deeds ; and declares that the same shall stand.
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any thing in the act of 32 Hen. VIII. to the contrary not* withstanding. So there is a custom in the town of Den-high, in Wales, that a feme covert, with her husband, may aliene her land there, and it shall bind the wife, and her heirs, as a fine does. This custom is not taken away by the statute of Wales, 27 Hen. VIII. ch. 28. Because, as is said by the court, the custom is reasonable, and agreeable to some customs in England, for the assurance of purchasers. {Dyer, 363.) Thus, we see, that, in England, certain customs, as to acknowledgments by femes covert, have been recognised and sanctioned by acts of parliament, notwithstanding such customs were contrary to the course of the common law. But this colony act receives very considerable strength and confirmation, from the 35th article in our constitution, (1 N. R. L. 41.) which declares, that such parts of the common law of England, and of the statute law of England, and Great Britain, and of (he acts of the legislature of the colony of New-York, as, together, did form the law of the said colony, on the 19th day of April, 1775, shall be and continue the law of this state, subject to such alteration as the legislature shall, from time to time, make concerning the same. The act now in question comes directly within this article; and may fairly be considered as expressly adopted by the constitution. It had very recently been passed, and must have been within the knowledge of. the framers of the constitution, who were men too enlightened and upright to infringe upon vested rights. But this article affords a fair inference also, (if it had been thought necessary to enter into that question,) that the whole body of the common law was not considered in force and operation here; otherwise the article would not. have spoken of a part. It adopts such part of the common law, which, together with the statute, law, did then form the law of tjje colony ; and how is this to be ascertained ? It must be, either by showing an express adoption, or an implied one, to be collected from the course and practice of the courts, and the usages and customs which prevailed in the government. As it respects the acknowledgment of Reeds, by femes covert, the common law modes, by fine and recovery, never were in use here. If it were necessary to
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'pursue this question further, the act of 1771 might be str0ng]y fortified, by referring to what has taken place in other states, in most of which similar laws have been passed; and, from aught that appears, have been sanctioned and upheld by their courts of justice.
But it has been argued, that, admitting the validity of the act, no such possession has been shown, as to bring the present case within its provisions. Before noticing the facts in relation to the possession, it will be proper to examine the act itself, and see how broad a construction it will admit. It is, in general, true, that the preamble of a statute is a key to open the mind of the makers, as to the mischiefs which are intended to be remedied by the statute. This rule must not, however, be carried so far as to restrain the general words of an enacting clause, by the particular words of the preamble. (6 Bac. Ab. 380, 381.) Although the preamble cannot control the enacting part of a statute, which is expressed in clear and unambiguous terms, yet, if any doubt arises on the words of the enacting part, the preamble may be resorted to, to explain it. (4 Term Rep. 793. Sir William Jones, 163. Palm. 485.) In the preamble to this statute, nothing is said with respect to possession of the land, nor any thing from which it could be inferred, that the act was intended to he confined to deeds for lands in actual possession, at the tiirtc of passing the act. After reciting the practice that had prevailed with respect to acknowledgments, it recites that there are lands and tenements held under the deeds offemes covert, not acknowledged in manner aforesaid, and yet made bona fide, and for valuable consideration. By this it would seem, that the Cases intended to be embraced, were those where the purchase was bona fide, and for valuable consideration; that in such cases, the purchasers, and those holding under them, ought to he secured, both in law and equity, against the grantors, their heirs and assigns. The unimproved state of the lands in the colony, at that time, affords a pretty strong ’ argument that the intention of the legislature was to confirm and secure the title in all such cases. To restrict the act to those cases only where there was a pedis possessio, would be providing only for a small pro
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portion of the cases probably intended to be embraced; as, comparatively speaking, but a small part of our lands were, at that time, under actual cultivation and improvement. ' With such a preamble, and talcing such to be the situation of the country, let us apply the enacting clause. It declares that “no claim to any real estate whereof any person is now actually possessed, whether as tenant in common or otherwise, shall be deemed void, upon pretence that the feme covert granting the same had not been privately examined,” &c. If this clause was to be construed without any reference to, or aid from, the preamble, I should think it would apply only to those cases where the land for which the deed was given was in actual possession. But considering the enacting clause with an eye to the preamble, it would be no very strained construction to apply the word possessed, to the claim or title, instead of the land itself; and then there would be perfect harmony between the preamble and the enacting clause. But it is not necessary, in this case, to resort to this construction. It has been noticed only for the purpose of showing, that all acts of ownership exercised over the land should be viewed as the acts of one having title, and, therefore, liberally construed, and not as the acts of one setting up a possession in opposition to the title, which are to be construed strictly. It is not denied that a regular and complete paper title has been deduced to the defendant, and those under whom he claims, from Peter Fauconier, the grantee in the deed from Ann Bridges and her husband. Nor is it pretended that there has ever been any actual possession in hostility to this title ; and it is a settled rule of law, that where there is no adverse holding, the possession is deemed to be in him who has title. This doctrine has been extended by this court farther, perhaps, than the ‘English rule would admit. In Jackson v. Sillick, ( 8 Johns. Rep. 262 .) it is held, that where a feme covert is the owner of wild and uncultivated land, she is considered, in law, as in fact possessed, so as to enable her husband to become a tenant by the curtesy. The observations made by the court in that case apply, with peculiar force, to the present. It is said there was no pedis possessio, or possession in fact, of the premises, in the popular sense of the words, by ‘ the
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husband or his wife, during the coverture; for the lands re» uiained, as new lands, wild and uncultivated, though the title clearly existed in the wife. The question is, was she not considered as seised in fact, so as to enable her husband to become a tenant by the curtesy ? To deny this would be extinguishing the title of tenant by curtesy, to all wild and uncultivated land. It has long bee"n a settled point,, that the owner of such land is to be deemed in possession so as t® maintain trespass. The possession of such property follows the title, and so continues, until an adverse possession is clearly made out. This is the uniform doctrine of this court. Adopting this rule of construction, the act of 1771 would be fully satisfied without any acts of ownership exercised over the land; but the case before us does not-rest even here; for, as early as in the year 1768-, a part of this tract, under the title derived from Ann Bridges, was sold to Lewis Groat, and actual possession taken of the same, which has continued down, ever since, under title derived from him. Groat, by his deed, became responsible, and covenanted to pay the quit refit on the whole patent; and, for many years thereafter, he actually did pay the same. In the same year, about 8.00 acres more of this tract were sold to H. De Groff, and actual possession taken', and improvements made, and it has been ever since held under the same title. But the partition which was commenced in the year 1769, and pending, at the very time the act of 1771 was passed, was a still more direct act of ownership exercised over the whole tract. This parti ton was made under the act of 1762, (Van Schaack's ed. 403.) according to the provisions of which various acts of public notoriety and ownership were made indispensably necessary. Among others, a survey of the whole tract to be divided was made. All this was done without any one appearing to set up or represent the claim of Ann Bridges, upon which the lessors of the plaintiff now place their right to recover, although public notice of such proceedings was given in two newspapers, for twelve weeks, directed to all persons interested in the tract.
Without entering moré particularly into the evidence of actual possession, we feel perfectly persuaded, that enough
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has been shown to bring the present case within the spirit, true intent, and meaning of the act of 1771; and that the defendant is entitled to all the benefit and protection which it affords. Judgment must, accordingly, be rendered for the defendant.
Judgment for the defendant.
p. 133elusive here ? That decree proceeds on the ground of the wilful desertion of the wife for three years ; she residing during all that time in the state of Connecticut, never having been, at any time, within the jurisdiction of Vermont, and living under the protection of the act of the legislature of Connecticut, decreeing her separation from her husband, and allowing her alimony, during the time she should choose to live so separate.
delivered the opinion of the court.
The lessors of the plaintiff derive title under Ann Bridges, who was one of the original patentees ; and their right to recover is made out, unless the title of Ann Bridges has been’ devested, by her own act, in conveying it away, or the right to • recover in thjs action has been lost by lapse of time. The vast amount of property, involved in the questions to be settled by this case, has increased their interest, and has drawn forth from the counsel, on the argument, a very able and elaborate discussion. The conclusion to which the court has arrived, and the point on which the decision is unanimously placed, has rendered it unnecessary for me to