Jackson ex dem. Henderson v. Davenport — 18 Johns. 295

Majority

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Jackson, ex dem. Henderson, against Davenport.

Headnote

K a soldier, entitled to military bountj deed? *daied aJif luable consideration, to B. all the bounty lands to which he was entitled ; and ia the same deed empowered A» as his attorney, f‘ v him. and in his name, to grant, bargain and convey the same to B. his heirs and assigns, in caso the same should be necessary, upon the grants having passed the great seal of the state, for such bounty-lands. On the 25th of Febru- bydeécPfoiñi ™iuabie consideration,grant-bargained his same boun- lis heirs*and Auf onuie9th mo2f A™B’as *®nh?snamef the power contained in tiie first deed: Held, that tin/ deed from K. to B. conveyed a life estate only ; and that K. having conveyed to C , before the execution of the power given to all his reversionary interest, C, as a bona jide purchaser, without notice, became seised of the legal estate m the premises, on the death of B.

Where the title of the lessor, in ejec tment, being a life estate, ends before the trial of the cause, the plaintiff', though he cannot turn the defendant out of possession, is entitled to judgment, so ai to enable him to recover the mesneyuafiis^ but with a perpetual stay oi the writ of possession.

THIS was an action of ejectment, commehced in May, „ . , „ „ . , i . rn 1818, to recover part of lot No. 40, in the town or Ulysses, and was tried at the Tompkins circuit, in June, 1819, before Mr. Justice Woodworth. The plaintiff gave in evidence, (1.) a.patent to Alexander Kidd, a soldier, for lot No. 40, in the township pf Ulysses, dated July 8, 1790. (2.) A deed from Alexander Kidd to Isaac Bogart, dated the 12¡h oí January, 1788, as follows : “ Know all men by these presents, that i, Alexander Kidd, of the county of Albany, for the consideration of nine pounds, have granted, bargained, sold, assigned and set over unto Isaac Bogart of the city oí Albany, the bounty or gratuity of lands given and granted unto ine, the said Alexander Kidd, by any resolution of the congress of the United States, and by any resolutions or laws of this state, for my services as a private in the troops of this state, in the service of the United States, in the regiment commanded by Colonel Gose Van' Schr.ick; and do empower Henry I. Bogart and John Bogart, or either of them, my true and lawful attorneys and attorney, for me and in my name, to grant, bargain and convey the same to the said Isaac Bogart, his heirs and assigns, in case the same shall be 07 o? deemed necessary, upon the grants having passed the seal of this state, for the lands aforesaid. Witness my hand and seal,” &c. “ Witness, John BushJ’ This deed was proved on the 30th oí September, 1790, before Jeremiah Lansing, a master in chancery; and again, on the 27th oí April, 1818, heíoré Bowen Whiting, master in chancery, when the witness who was present to make the proof was identified by a witness known to the master: the deed was also

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by the same subscribing witness, before Elijah Miller, first jac]ge of the county of Cayuga, on the 5th of May, 1818, and recorded in the office of the clerk of that county on the 6th of May, 1818. • (3.) A deed from Isaac Bogart for the same lot to Theodosius Fowler, dated July 2, 1791, registered 30th of April, 1795, as noted on the copy produced, and recorded February 28th, 1818. (4.) A deed from Theodosius Fowler to William Henderson, the lessor of the plaintiff, for the same lot, dated October 4,1» 92; recorded August 14, 1818. (5.) A release in fee from Alexander Kidd, by his attorney Henry I. Bogart, to Isaac Bogart, for the lot in question, dated 9th of February, 1802 ; acknowledged 10th of August, 1808, but not recorded. Isaac Bogart died in September, 1818.

The defendant gave in evidence, (1.) a deed from Alexander Kidd to Lemuel Cobb, dated February 25, 1792, for the lot in question, as follows : “ Know all men by these presents, that 1, Alexander Kidd, of the county of Morris, in the state of New-Jersey, for the consideration of the sum of fen pounds, current lawful money of New-Jersey aforesaid, do give, grant, bargain, sell, aliene, release, enfeoff, convey and confirm unto Samuel Cobb, of the same place, and to his heirs and assigns for ever, all my bounty lands, viz. five hundred acres due to me from the state of New-York, and one hundred acres due from the United States ; also, all my right and title, interest, claim and demand to the warrants- and rights to land for my services in the troops raised in the said state of New-York, in colonel Gose Fan Scoyke's regiment, together with all and singular the profits, privileges and appurtenances to the said lands, warrants and premises belonging : to have and to hold unto the said Samuel Cobb, his heirs and assigns, all the above granted and bargained land and premises, with the appurtenances to the same. In witness whereof,” &c. “ Sealed and delivered in presence of Thomas Van Winkle — Peter Van Winkle.^ This deed was proved on the 12th of March, 1795, before John Ray, a master in chancery, by Peter Van Winkle ; and before David Hyde, a master in chancery, on the 12th of June, 1813, by Thomas Van Winkle; and recorded in the office of the clerk of the county of Cayuga, June 12lh, 1813, with.the soldier’s

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discharge, dated 8th June, 1783, under the hand of the commander in chief of the army of the United States. (2.) A deed from Samuel Cobb to Moses Davenport, the defendant, for 200 acres of the same lot,being the premises in question, dated January 31, 1815, for the consideration of 1000 dollars; recorded 16th February, 1815. (3.) A release from the widow of A. Kidd to the defendant, of her right of dower, dated 14 th February, 1816.

The defendant then called on the plaintiff to show that the deed from Kidd to Bogart was deposited, previous to May 1, 1795, with the Clerk of the County of Albany, in pursuance of the provisions of the “ act for registering deeds and conveyances, relating to the military bounty lands,” passed January 8, 1794, and the act to amend the same, passed March 27, 1794. The counsel for the plaintiff contended, that the exemplifications of the record and proofs thereof, produced and read in evidence, were sufficient proof of that fact; and the question was reserved by the judge.

Cornelius Davenport, the father of the defendant,

died ■about two years before the trial; and his widow, who was produced as a witness, testified, that more than 22 years before, her husband made a contract with Nathaniel Williams, in New-Jersey, for lots No. 33 and 40, at 2 dollars per acre, and paid him 500 dollars, and took a bond for a deed; that he entered on the lot 22 years ago, and continued in possession, holding under this contract, and paying taxes, until his death. The bond was not produced. The witness said that she had seen it and heard it read, and had made, search and inquiry after it, but could not find it. The plaintiff’s counsel objected to the parol evidence of the contents of the bond; but the judge admitted it, subject to all exceptions; and he ruled that it was not necessary for the defendant to show any written evidence of the colour, or claim of title, under which he took possession; but that showing an actual occupation, for twenty years, claiming title, was sufficient to constitute an adverse possession. Another witness testified, that C. Davenport was in possession of lot No. 40, above twenty-two years before the trial, and claimed it to be his property, saying that he had purchased it of a person in New-Jersey, and that C. D. built a house and.

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barn on the lot, and his son, the defendant, made improve* ments from year to year.

A witness for the plaintiff testified that before the defendant purchased of Cobb, he had taken a lease, for a nunrw her of years, of Cobb, and that he held under that lease when he made the purchase, and that he paid the rent to Cobb. That he knew of BogarPs title or claim, and would not purchase, until he had ascertained who had the t tie, and that C. Davenport often told the witness the same. That the defendant married in 1801 or 1802. That about 10 or 12 years ago, the defendant, who was then in actual possession of the premises, employed the witness to inquire for Theodosius Fowler, who derived title from Bogart, and was the owner of the lot. The counsel for the defendant contended that it was solely for. the. jury to decide, whether on this evidence, the plaintiff’s right was not barred by an adverse possession. The judge directed the jury to find a verdict for the plaintiff, subject to the opinion of the Court, on all the points arising in the case: and the jury found a verdict for the plaintiff accordingly.

The cause was argued by Oakley, (Attorney General,) and W. A. Duer, for the plaintiff, and by Collier, for the defendant; but the reporter did not hear the arguments.

For the plaintiff, the following points were stated: — 1. That there was not evidence of an adverse possession, sufficient to bar the plaintiff. ( 1 Johns. Rep. 156 . 2 Johns. Rep. 230 . 9 Johns. Rep 167 .174. 10 Johns. Rep. 475 .)

2. That the proof as to the deposit of the deed from Kidd to Bogart, before the 1st of May, 1795, pursuant to the act. (1 N. R. L. 209. 211, 212.217.) was sufficient.

3. That the deed from Kidd to Bogart passed the whole estate oí Kidd, and the patent which was subsequently issued to him enured to the benefit of the grantee, Bogart, ( 16 Johns. Rep. 495 . 505.) as by the act to carry into execution fhe concurrent resolutions of the legislature, (Sess. 13 ch. 59, s. 5) the land became vested in the soldier, on the 27th of March, 1783.

4. Admitting even that Bogart did not, by the deed from Kidd to him, acquire an estate in fee ; yet the subsequent

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deed, executed by the attorney of Kidd, pursuant to the power contained in the first deed, enured to the benefit Bogart, so as to vest in him the whole estate. ( 3 Johns. Ch. Rep 550 . 4 Cruis. Dig. tit. 32. ch. 16, s. 62, 63, 64, 65. 1 Johns. Cases, Hi. 90. 2 Johns. Rep. 510 . 13 Johns. Rep. 316 . 2 Burr. 704. Doe v. Whitehead. 1 Saund. 261. note 3.)

delivered the opinion of the court. The lessor deduced a title to the premises in question under Alexander Kidd, a soldier, to whom the lot in controversy was granted, by virtue of a deed from Kidd to Isaac Bogart, dated the 12th of January, 1783, and sundry mesne conveyances down to the lessor.

The defendant deduced a title from Kiddto Samuel Cobb, by a deed, dated the 25th of February, 1792, for the same lot; and by a deed from Cobb to the defendant, for 200 acres of the lot, being the premises in question, dated the 31st of January,1815.

It has not been pretended that the defendant is concluded, by any relation subsisting between him, or Cornelius Da. venport, his father, and the lessor, or those under whom be claims, from showing that the plaintiff has no title to reco. ver; or that the defendant, or his grantor, Cobb, has the title to the premises.

The deed from Kidd to Isaac Bogart conveys only a life estate. It is a grant, for the consideration of nine pounds, to Bogart, oIKidd's bounty or gratuity lands, under any resolution orlawsof thisstate, for his services, as a private in the troops of this state, in the service of the United Stales, in the regiment commanded by Colonel Gose Van Schaick, without any words of inheritance or perpetuity. It constitutes Henry I. Bogart and John Bogart, or either of them, his true andlawful attorneys and attorney, for him and in his name, to grant, bargain and convey the same (his bounty lands) to the said Isaac Bogart, his heirs and assigns, incase the same should be deemed necessary upon the grants having passed the seal of this state for the lands aforesaid.

The power thus given was executed by a deed from Hen* ry I. Bogart to Isaac Bogart, for the lot in question, by a

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release, dated the 9th of February, 1802, which was acknowledged the 10th of August, 1808, but has not been recorded. It is to be observed, that the deed from Kidd to Isaac Bogart has been deposited pursuant to the act of the 8th oí January,, 1794, but has not been recox-ded. There is no evidence tending to show that Cobb had any notice of the deed from Kidd to Isaac Bogart, when he purchased and took his deed. This action was commenced in Mayr 1818, and Isaac Bogart died in September of ihat year.

The question then arises, whether, since the death oi Isaac Bogart, the lessor, pr Cobb, and those claiming under him* have the legal title to the premises 1 This depends on the power contained in Kidd's deed to Bogart. It has been insisted, on behalfof the plaintiff, that the power, in this case, is coupled with an interest, and was irrevocable, so that Kidd had no interest left in him to convey. On the part of the defendant it has been urged, that the power being to strangers who had no intei’est in the land, notwithstanding it was contained in the deed to the person in whose behalf it was to be executed, it was a naked power collateral to the land. The question, as to powers, arose, and was finally decided in the Court of Errors, in the case of Bergen and another v. Bennet, (1 Caines' Cases in Error, 1.) Mr. Justice Kent delivered the opinion of the Court. He observed, that “ a power simply collatexal and without interest, or a naked power, is where to a mere stranger authority is given of disposing of an intei'est in which he had not before, nor hath by the instrument creating the power, any estate whatsoever. But when power is given to a person who derives under the instrument creating the power, or otherwise, a present or futui-e interest in the land, it is then a power relating to the land.” “ The former power,” he says, “ is revocable by the grantor, at his pleasure, in his life-time, and is absolutely revoked by his death ; and the grantee of such a naked power, having no interest connected with the power, has, of course, no interest affected by the revocation.” In Hargrave & Butler's, note, 298, to book 3d, of the first part of Coke's Institutes, it is said, that those powers which are given to mere strangers, that is, to persons who were not owners of the land, at the execution of the

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instrument creating the power, and who do not take under it, either a present or future estate or interest in the land, are said to be collateral to the land ; those which are reserved to the owner of the land, or to a person deriving under the instrument creating the power, either a present or future estate or interest in the land, are said to be relating to the land. These principles are believed to be undeniable propositions, perfectly well settled by adjudications, and admitted by every elementary writer on powers. Their application to the present case is obvious. Henry I. Bogart and J din Bogart, who, or either of them, were authorized to make (he conveyance to Isaac Bogart, were not owners of the laid, at the execution of the instrument creating the power, and did not take under it a present or future estate or inte.'est in the lands. They are, therefore, strangers, and, as to them, the power is collateral to the land, 1 can perceive no difference, in point of principle, whether the power is contained in the same instrument which gives a life estate to Isaac Bogert, or in a distinct instrument. The place where the power is found is not the test, but it is, that the same person who takes a present, or is to have a future interest in the land, is cloathed with authority by the owner of the estate, to make a further disposition of it. The attorneys in this case had no kind of interest in the particular estate conveyed, or in the further disposal of it. All their au hority was derived from the deed, and the only interest they had was in the execution of the power. It was matter of entire indifference to them who had the estate, and this is the true character o! a naked power. Had the deed, after giving the life estate, authorized Isaac Bogart to convey the premises in fee, for his own benefit, in consideration of the money received, that would have been ■a power coupled with an interest, irrevocable in its nature. But that is not the case. Although Isaac Bogart had an interest in having the power executed, H. & J. Bogart are strangers; and the interest that Isaac had in the power cannot be transferred to them, so as to give them an interest coupled with the power. As Kidd conveyed to Cobb, before the execution of the power, by the release to Isaac Bogart, the deed to Cobb revoked and superseded the

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power. This, is my view of the case. My brethren who agree jn |jle j-eguJ^ consider this as an unexecuted authority $ that the reversionary interest, after the deed from Kidd to Bogart resided in the former ; that nothing restrained him from parting with that interest prior to the execution of the power by H, & J. Bogart, or one of them, and that, therefore, Cobb, being a bona fide purchaser, without notice, took the reversionary right of Kidd, and became seized of the legal estate, after the termination of Isaac Bogart1 s life estate in the premises.

The plaintiff’s counsel have pressed upon the Coart the-case of Fisher v. Fields, ( 10 Johns. Rep. 495 .) as deciding this cause. That case was decided on an appeal from the Court of Chancery, on the ground that the assignment to Birch passed the equitable interest of the soldur, and amounted to a declaration of trust ; that after the patent issued, the soldier took as a trustee for Birch; and Fields having afterwards purchased of the soldier, with knowledge of the transfer to Birch, was a purchaser chargeable with the trust, and was as much bound to execute the trust as the soldier himself. The doctrine of that case would prevail, if the cause now pending was in a court of equity, and it could be shown, as it has not been done in this case, that Cobb had any notice, when he purchased, of the conveyance to Isaac Bogart by Kidd, and that the defendant had, also, notice of that conveyance when he purchased. At law, the legal title must prevail; but, on the facts in this case, tested by the decision in Fisher v. Fields, even in a court of equity, the plaintiff could not prevail, without proving notice of the conveyance to Isaac Bogart, both to Cobb and the defendant. This suit was brought before the termination of the life estate ; and it appears by the plaintiff’s own showing, not only that his estate is ended, but that the defendant has the reversionary interest. The plaintiff, then, has no title to turn the defendant out of possession; but he has a title to the mesne profits and the costs of this suit, and must, therefore, have judgment, to enable him to recover them.

This gives rise to the question of adverse possession $ and without going minutely into an examination of the facts, we are of the opinion that to render a possession

Dissent

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hostile and adverse to the true owner, it must be under co-lour or claim of title; that, in the present case, it was not satisfactorily shown that the possession was adverse, until a lease was taken of Cobb, which was within twenty years before the commencement of this action, and that, consequently, the plaintiff was not barred of his entry. There must be a judgment for the plaintiff with a perpetual stay of the writ of possession.

dissented, on the ground, that a power from Kidd, the soldier, to Isaac Bogart, was coupled with an interest. He said, that it was manifest from the words of the instrument, that it was intended to convey all the interest Kidd had in the lands; but as the legal title had not then vested, and the transfer could only be of an equity, a power was inserted authorizing Henry I. Bogart to convey to Isaac Bogart. The legal operation of this power he considered the same as if authority to convey had been given to Isaac Bogert; that it was to every beneficial purpose such a power; it was to be exercised for his benefit, was under his control, and came within the spirit of the rule laid down in l Caines' Cases in Error, 15. “ That when power is given to a person who derives under the instrument creating the power a present or future interest, it is, then, a power coupled with an interest.” The power, in this case, was well executed, and enured to the benefit of the lessor of the plaintiff, who became seised of an estate in fee, and was entitled to recover.

Judgment for the plaintiff, with a perpetual stay of the writ of possession.