Jackson ex dem. Cooper v. Cory — 8 Johns. 385

Majority

p. 385

Jackson, ex dem. Cooper and others, against Cory.

Headnote

a. in i;át. otseS°” on whleh " court-house ami gaol were built, by the aupervisovs,ini792, and used by the county, in isou, ¡trisMure°" tin. XSedtoscil the lot of land oil which the5: stood; and they accordingly sold the land to /’

In an action of ejectment against B. it was held that the people of the county had no capacity to take by grant, and that the deed was void.

The act of the legislature, (sess. 24. c. 180.) enabling supervisors of counties to take con veyances of land, applies only to conveyances made to the supervisors by name»

A grant, to be valid, must be to a corporation, or to some certain person named, who cm . take, by force of the grant, and hold in his own right, or as trustee.

The act of the legislature* in 1806, did not authorize the supervisors to sell any thing more, than such right or title us they had.

Conveyances by statute pars no other or different right than, that which, the party before .possessed.

THIS was an action of ejectment for a lot of land in Coopers-Town, in the county of Otsego. The cause was tried at the Otsego circuit, in May last, before Mr. Justire Van Ness' uce y an jyess.

The lessors of the plaintiff having shown, in the first 1 u instance, a good title to the premises, the defendant gave . , , , , b, . . _ . - 6 , m evidence a deed from W. Cooper and A. Craig, (under whom the lessors of the plaintiff deduced title,) to the people of the county of Otsego, bearing date the 22d March, 1791, for the premises in question, and a deed from the supervisors of the county to the defendant, dated r J J 6th October, 1809, which sale was under the act of the

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21st February, 1806, entitled, “ An act for raising money t0 build a court-house and gaol in the county of Otsego by which it was enacted, “ that the board of supervisors were authorized to sell the then court-house and gaol and lot on which they stood, (being the lot in question,) in such manner as they should think proper.

It was admitted that under the deed to the people of the county of Otsego, the supervisors had, in 1792, erected a court-house and gaol on the premises in question, and that they were used as such, until the sale by the supervisors to the defendant. A verdict was found for the plaintiff, subject to the opinion of the court, on a case containing the facts above stated.

Campbell, for the plaintiff.

1. The people of the county of Otsego, were not competent to take a grant of land. To every deed there must be parties, a grantee as well as a grantor, and the grantee must be capable of receiving the grant, otherwise the deed is void.^[3] Persons capable of granting, or receiving a grant, are either natural persons, or corporations. The deed could not operate as a grant to the people of Otsego, in their natural capacities, for there were no persons named; and not being incorporated, they could not take as a corporation.^[4] It will hardly be pretended that the counties are corporations ; and it was incumbent on the defendant, if rests on tbat ground, to show that they are corporate bodies.

By the act of the 8th April, 1801, (sess. 24. c. 180. s. 8.) the supervisors are enabled to take conveyances of land for the use of the counties. This shows that the legislature did not consider them as corporations.

2. The act of the legislature, passed'21st February, 18üé, (sess. 29. c. 18. s. 5.) authorizing the board of supervisors to sell the court-house and gaol with the lot of land on which they stood, in such manner as they might think-proper, did not confer on the purchaser

p. 387

a title, if there was none in the county or supervisors, . , , , , • i It was a private act, and could not authorize the supervisors to convey any other or greater interest than the county possessed. The rights of no persons can be affected by a private act, except the parties to such act.^[3] The legislature, no doubt, were under a mistake, as to 07 7 the title of the county, when they passed the act.

Sedgwick, contra.

The defendant is a bona jide purchaser from' the supervisors who represent the county. The lessors are estopped, by their deed, .to say that the people of the county had no title.^[4]

Again, a deed to the people of the county will pass the land to the supervisors, who represent the county, in the same manner as a deed to the administrators of A. without naming them, is good.^[5]

Again, the legislature have passed an act to enable the supervisors to sell the land, which gives them the capacity to take it. And it makes no difference, in this respect, whether the act was public or private. Cooper, and the other lessors claiming under him, cannot, now, object, for they must be presumed to have consented to the act of the legislature. If it was the intention of the lessors that the land should not pass, they ought to have avoided the grant, before the passing of the act of the legislature.

Henry, in reply.

The grant was to the people of the County, in their collective capacity. It cannot be pretended that they have, collectively, a capacity to take land.

There can be no estoppel in this case, for both parties must be'bound by an estoppel, or neither. Then there is no mutuality; for the grantor would be estopped, and the incapacity of the grantee could never be óbjected, on the ground of an estoppel.

The act of the legislature authorizing the supervisors

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to take, cannot render valid a prior deed to the people of the county; but shows that they had no capacity to take a grant of land. The act authorizing the supervisors to sell, being a private act, can affect parties only. It is a mere"naked authority to sell, without declaring the effect of the sale.

The people of the county of Otsego

had not a capacity to take by grant. They were not a corporate bod}' known in law. It is a settled rule of the common law, that a community, not incorporated, cannot purchase and take in succession. (Co. Litt. 3. a. 10 Co. 26. b. Com. Dig. tit. Capacity, B. 1.) The act of 1801, (Laws, vol. 1. p. 561.) declaring valid certain conveyances to the supervisors of a county, does not apply to this case, for this was not a conveyance to the supervisors. A grant, to be valid, must be to a corporation, or some person certain must be named, who can take, by •force of the grant, and who can hold either ip. his own right, or as' trustee. (Perkins, s. 55. 2 Johns. Cas. 324 .)

Nor can the act of 1806, authorizing the supervisors to sell the premises, be construed to devest the lessors of the plaintiff of their right. It is not to be presumed that the legislature intended to authorize the supervisors, td convey any thing more than the right and title which they might have had in the lot. The act was, no doubt, passed tinder the impression that the supervisors had a legal conveyance for the premises; and from the principles contain-, ed in the case of Jackson v. Catlin, ( 2 Johns. Rep. 248 .) and which has since been affirmed in. the court for the correction of errors, conveyances by statute are not to be Construed to pass any other or different right than that which the party before possessed. To take away private property by public authority, even for public uses, without making a just compensation, is against the fundamental principles of free government,• and this limitation of

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power is to be found, as an express provision, in the constitution of the United States.

For these reasons, judgment must be rendered for the plaintiff. .

Judgment for the plaintiff.