Jackson v. Griswold — 5 Johns. 139

Majority

p. 139

Jackson, ex dem Lepper and others, against Griswold.

Headnote

The act to set-tie disputes concerning titles to county of Omm l) i^a con-’ The*1 award0* of md™5that K®t> ls consider-of record, to take effect from, its date ¡and an-less a dissent has been entered fromthldat^of the award, it is conclusive. The date of the awal.¿ ;s pr¿ma 'ofthetimí of its s™l»mevidence shrra'tlmTthe datc °n the fa®e ^senot llle tru?

this was an action of ejectment, for land in the » , r y-, township of Marcellus, m the county of Onondaga.

The cause was tried at the Onondaga circuit, before Mr. Justice Thompson.

At the trial, the plaintiff’s counsel produced in evideuce, letters patent from the state of New-Tork to John Lepherd, a soldier, in the army of the United States, for lot No, 2. in Marcellus, including the pre- ° 1 mises in question. It was proved, that the lessor of the plaintiff, now known by the name of John Lepper, was the person who served as a soldier in Col. Cortlandt’s ► . t t regiment, and that there cud not appear to be any other _ r • • i person of a similar name m the army.

The defendant offered in evidence the award of the Onondaga commissioners, dated the 1st March, 1802, awarding and determining the title to lot No. 2. in Mareellus, to be in one Abraham Ten Eyck,- and the clerk of the county of Onondaga produced a book containing the awards of the commissioners, which he testified was deposited in his office by James Van Ingen, cleric of the commissioners, some time in December, 18Q4, or in Ja~. nuary, 1805.

The counsel for the plaintiff objected to the reading of the award in evidence ; 1, Because the act appointing the commissioners, fkc. was contrary to the constitution of the state, and void. 2. Because the powers of the commissioners were limited by the act to the first Tuesday of March, 1802, and the book of awards could not be legally filed in the clerk’s office, after that time. These objections were overruled by the judge, and the award was read in evidence,

p. 140

The counsel for the plaintiff read in evidence a deed, from John Lepper to Eli Parsons and Henry Brack, two of the lessors, for lot No. 2. in Marcelina, dated the 15th September, 1797.

Two witnesses testified, that the defendant took possession of the premises in question, in the summer of 1794, and has ever since continued in possession, claiming the same as his own.

Walter Wood was called as a witness for the plaintiff". His testimony was objected to, but admitted by the judge. He testified, that he attended before the commissioners, as counsel for Eli Parsons, one of the lessors, in support of his claim to the lot in question; that the point in dispute, in relation to this and several other lots, rested upon the alleged infancy of the soldier, ai the time of executing the deed under which the adverse party claimed; that he did not recollect that he asked the commissioners whether any award had been made, on the particular lot in question, but he frequently made application to them, between the year 1798 and the month of February, 1802, to know whether any decision had been made in relation to these lots, called infant lots, and was uniformly answered in the negative. The >vitness had frequent recourse to the office of the clerk of the commissioners, between the periods above mentioned, and during that time he did not see the book now produced, nor did he ever see it, until it was filed in the office of the clerk of Onondaga ; that Trowbridge, the former clerk of the commissioners, kept a book of the minutes of the proceedings of the commissioners, and another book, called the book of awards, but which were not signed by the said commissioners ; neither of which books was the one produced, nor was it either of the books of minutes kept by the commissioners. He never knew the commissioners to refuse any information which was asked. Another, witness testified, that at the

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request of Parsons, one of the lessors, he inquired of Sanders Lansing, one of the commissioners, in January, 1804, who informed him that no award had been made on the lot in question; and he applied, at the same time, to Fan Ingen, the clerk of the commissioners, who informed him, that no award had been made on lot No. 2. in Marcellus. In December, 1804, or January, 1805, he applied again to Fan Ingen for the same purpose, who replied, that he could not give him the information he required.

The counsel for the plaintiff then insisted, that the award of the commissioners produced was void, and ought to be rejected by the judge, because, from the evidence produced, and the inspection of the book, in which the awards did not follow in order, it appeared, that the commissioners had not caused their awards to be entered in a book provided by them, in the manner required by the act constituting the board of commissioners ; and further, that if the award was regular, the plaintiff, from the evidence produced, had shown sufficient to excuse him for not filing his dissent to the award within the time limited by the act, and that he ought not, therefore, to be precluded from bringing his action.

The judge charged the jury, that he considered the award of the commissioners as a matter of record, which took effect from its date; and that, as no dissent had been entered within two years after the date thereof, by the lessors, their right of action was barred, and the award conclusive, and that the defendant was entitled to a verdict. The jury accordingly found a verdict for the defendant.

A motion was made to set aside the verdict; and the case was submitted to the court, without argument.

delivered the opinion of the court. This was an action of ejectment for a part of lot No. 2. in the township of Marcellus, in the military tract. An exemplification of a patent to one of the lessors having been produced, the defendant set up an award of the Onondaga commissioners, bearing date the 1st day of March, 1802, whereby the lot in question was awarded to Abraham Ten Eyck. The evidence offered of the award was the record thereof, contained in a book deposited by James Van Ingen, clerk of the commissioners, with the clerk of the county of Onondaga, some time in December, 1804, or January, 1805. To the reading of this award the plaintiff’s counsel objected,

1. Because the act instituting this board of commissioners, was unconstitutional.

2. Because the powers of the commissioners expired in 1802, and they had no authority afterwards to file the book.

It was also made a question, in the course of the trial, whether the reasons offered, on the part of the plaintiff, for not entering a dissent to the award, were not sufficient to prevent the application of the limitation, prescribed by the statute.

These objections were all overruled, and a verdict found for the defendant. The case has been submitted' without argument, which is to be regretted, if any reliance is placed on the first objection ; for I am unable to discover any grounds giving colour to it. Were the award of these commissioners made final and conclusive respecting the title, there might be some reasonable cause of complaint. But, according to its provisions, the most that can be alleged is, that it is a pretty ri~. gorous statute of limitations. This was a mere ques-. tion of expediency, resting solely with the legislature, ' under the peculiar circumstances of that tract of country, .called the military tract. Whether this statute is suifi

p. 143

ciently guarded in all its parts, is not a question for judicial inquiry. But the constitutionality of the statute, cannot, it appears to me, be doubted.

The second objection is not true in point of fact. The first act on the subject was passed in the year 1797; and by several other subsequent statutes, the powers of the commissioners were, from time to time, revived and continued, until January, 1805. By the statute of 1797, the commissioners were directed to cause their awards to be entered in a book or books, to be provided by them for that purpose; and that, when they had executed the trusts committed to them, they should deposit such book or books, in the office of the clerk of the county of Onondaga, there to remain as records of their proceedings. The book produced was matter of record, and had been deposited, either a short time before or after the powers of the commissioners expired. The precise time is not stated. The directions of the statute were, therefore, in this respect, strictly pursued. The testimony offered as an excuse for not entering a dissent, even admitting it competent, was too loose to foe entitled to much consideration. The inquiries made by Mr. Wood were general, as to a certain description of lots, and not pointed particularly to the one in question; besides, all his inquiries were anterior to the date of the award. The information given to Mr. Parsons by the clerk of the commissioners, might afford some reason to doubt whether the award was signed at the time it bears date, but was of itself altogether insufficient to establish that fact. Had that been the object of the testimony, and accompanied with other evidence, showing that to have been the case, the award would have been considered as taking effect from the time when signed. But the testimony offered was not sufficient to rebut the prima facie evidence, arising from the date on the face of the award» No dissent appears ever to have been en

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tered. The award has been a matter of record, sincff January, 1805, to which recourse might have been had for information. We can see no possible grounds on which the case can be taken out of the positive provisions of the statute, that the award shall be binding and conclusive, unless a dissent is entered within two years after the making thereof.

The motion for a new trial must therefore be denied.

Motion denied.