Jackson, ex dem. Humphrey v. Given — 8 Johns. 137

Majority

p. 137

Jackson, ex dem. Humphrey and others, against Given and others.

Headnote

yn 1790 tent was ed fov a military pate-n~ was Fant a, who afterwards conveyed it to various persons, who took possession unhaVbeen’a'soU oiT’thVhE5S<?ci States; and who, la Febraary, iros, sold and conveyed it to B. e., m ¡becameÍoT of tending”to P"be Ventee’and frau" fluently exeeuted a deed for the lot to ’ {i’’ ™h° soIdlt isoí “*•> llie reaI Patentee, executed another deed fov the same lot to w., which was first recorded; and chased ihétiUe ”f ^eed^ fr°0°¿ hím» "¡as also recorded.

In an action of ejectment brought by B. against the persons in possession under I), it was held, that when W- purchased of .¿Z., in 1804, the land was held adversely under a void title; hut as JD. afterwards purchased the title of W.9 derived from the veal patentee, fov the benefit of those in possession, B. could not set up that adverse possession, to defeat the purchase by ; and that the persons holding under 2). had a right to protect themselves by the title of ÍV. equally as if they had purchased it of W,

The deed from the patentee to being first recorded, was entitled to a preference, under the statute, there being no satisfactory proof of an actual or implied notice to W, of the prior deed to B.

To defeat the prior registry of the second deed, there must be fraud or undoubted notice. If one affected with notice conveys to another without notice, the latter is as much, pro* leeted, as if no notice had ever existed.

THIS was an action of ejectment, to recover the possession of lot No. 30. in the town of Dry den, in Cayuga county. The cause was tried befóle Mr. Chief Justice Kent, at the Cayuga circuit, the 12th June, 1810.

The plaintiff read in evidence letters patent from the , peoplc of the state, dated July 8, 1790, granting the , . . , , , TT lot in question to Atxcander Umphrey, one of the lessors, ckc. for his services as a soldier in the army, &c.; a deed from the patentee, in Upper Canada, dated 5th February, 1795, for the consideration of 200 dollars, to Samuel Umphrey, which was proved and recorded in ^ 1 the office of the clerk of Cayuga, on the 4th February, 1807. ‘

The defendants produced a deed, dated 28th June, 1793, which had been duly deposited in the clerk’s office, from Alexander Humphrey to Timothy Benedict; and Frederick Knox, a witness, testified, that he saw 7 J the deed executed by the grantor, who called himself J 0 ’. Alexander Humphrey, at Fairfield, in the state of Con- , . . necticut, and who said he had been a serjeant in the army. He appeared to be about 45 years of age, and said he was a native of Fairfield; but the witness never saw him before nor since that time.

p. 138

A deed was produced from Timothy Benedict to Josiah Masters, dated. 16th July, 1793, for the lot in question.

A witness for the plaintiff testified, that he knew . . . Umphrey more than 40 years ago; he resided in Wallkill, in Ulster county, and enlisted in the army during the last war, and the witness heard that he wits a serjeant. After the war, he returned to Walkill, where he resided about a year, and then removed into Washington county, from whence he went to Canada. The witness knew him well, and that he always wrote his name Alexander Umphrey, not Humphrey, and the witness had seen him frequently sign his name, in that manner.

The defendant then produced a deed from Alexander Umphrey, to Judah Williams, dated August 31, 1804, which was recorded 7th April, 1806; and a deed from Judah Williams, dated 9th April, i 806, to Josiah Masters, which was duly recorded.

It was proved that Scofield, one of the defendants, about 7 years since, purchased 200 acres, part of the lot, of John Atkinson, and took possession; and two other of the defendants occupied parcels under Scofield, and two other of the defendants purchased of Atkinson 100 acres of the same lot, of which they took possession. Atkinson claimed title to the whole lot, by virtue of a deed from Josiah Masters, executed prior to the 31st August, 1804, and Scofield, lager soil and Smith, were in possession prior to that time. Judah Williams, afterwards, brought actions of ejectment against them, and, pending the suits, Masters purchased the title of Williams, and the suits were discontinued.

It appeared that Alexander Umphrey died at Augusta, in Upper Canada, the 18th May, 1806. And it was proved that he had said, that he was in the army of the United States, in the New-York line, and had drawn his bounty lands. A witness also testified that the deed of

p. 139

the 5th of February, 1795, from him to his brother Samuel Umphrey, was executed at Aug usta.

A witness also testified that he knew Judah Williams, and saw him at Augusta, in August, 1804. Williams said to him, “ that Alexander Umphrey had drawn valuable lot of land in New-York, which he should be glad to purchase, but he had understood that Umphrey had fooled it away, and had sold it several times, and did not consider it worth his trouble to look about it.”

The jury, under the direction of the judge, found a verdict for the defendants.

A motion was made on the part of the plaintiff, to set aside the verdict, and for a new trial.

Rodman and Shepherd, for the plaintiff.

E. Williams, contra.

delivered the opinion of the court. 1. When Williams purchased of the patentee, in August, 1804, Atkinson, and those in possession under him, held the lot adversely, under a false title derived from a fraudulent source, and not from the real patentee. But as Williams's title was afterwards purchased in, by Masters, for the benefit of Atkinson, and those in possession under him, the lessors of the plaintiff cannot setup, against those very tenants, that adverse possession to defeat the purchase by Williams. The defendants have a right to protect themselves under that title, equally as if they had themselves purchased it, in the first instance. Why not ? The party in possession may always purchase in an. outstanding title; and Atkinson and those under him-have a right, by the purchase under Williams, to connect themselves with the patentee. The prohibition from purchasing pretended titles was intended for the benefit of the party, at the time in possession; and it ought

p. 140

not to be used as a weapon against such party. This would be defeating the very object and policy of the rule. In the case of Keite v. Clopton, (Carter, 18.) Sir O. Bridgeman, Ch. J. said, “ that an act may be void in several degrees; 1. Void, so as if never done, to all purposes, so as all persons may take advantage thereof; 2. Void to some purposes only; 3. So void by operation of law, that he that will have the benefit of it, may make it good.” Quisquís potest renunciare jure pro se introducto; The statute allows the party in possession to buy any pretended title; and there is no reason that the rule making the purchase of a.pretended title void, should be applied to a purchase set up by the very party in possession at the time. The title so set up cannot be to the prejudice of any person. It is not within the mischief of maintenance.

The deed from the patentee to Williams being first recorded, is entitled, by the statute, to a preference. Nothing can defeat this preference, but the fact that Williams, when he made the purchase, had notice of the prior conveyance from the patentee of the 5th of February, 1795. There is no pretence that he had any express knowledge of that specific conveyance; and the only ground from which we can deduce any implied or constructive notice ef it, arises from the conversation which Williams had with a third person, about the time of the purchase, in. which he said that “ he had understood that TJmphrey had fooled away the lot, and had sold it several times, and did not consider it worth his trouble to look about it.” Even, if we were t© admit that implied notice will•upply the absence of the registry of the prior conveyance, this conversation, unaccompanied with other-circumstances, is too loose to justify the inference of such notice. The purchaser under the prior deed was not in possession,, and never had been. That deed had been executed nine years before, and had been suffered to remain dormant, not only without being recorded, but

p. 141

without any transfer of possession, or any act of ownership on the part of the purchaser. If the vague reports which Williams might have heard, be applied to this particular prior deed, he might well have presumed that it was not bona fide, or had been cancelled; and it would be rigorous to deprive him of his regular legal title under the statute, by the imputation of a fraud so imperfectly supported. In the case of Hine v. Dodd, (2 Atk. 275.) Lord Hardwicke said, that mere suspicion of notice was not enough to break in upon the registry act; and that nothing short of fraud, or clear and undoubted notice, would do. This decision was cited with much approbation by the master of the rolls, in Jolland v. Stainbridge. (3 Vesey, 478.) But if Williams did purchase') with notice, the subsequent purchase by Masters fromy him is not to be affected by the fraud of Williams. It is a settled rule, that if one affected with notice, conveys to one without notice, the latter shall be protected equally as if no notice had ever existed. (2 Vern. 384. 2 Fonb. 153. Amb. 313. 1 Johns. Rep. 573 , 574.)

The motion, on the part of the plaintiff, ought, therefore, to be denied.

Motion denied.