Majority
p. 475Jackson, ex dem. Culverhouse, against Beach.
Headnote
A. conveyed land to B. in trust for C. who was an alien. C. afterwards, and before any office found, became July naturalized, and B. released the estate held in trust by him. It was held that the conveyance to C. was valid.No title in case of alienism, vests in the people of the state, until after office found.
Naturalization has a retroactive effect, and confirms the-former title.
This was an action of ejectment. At the trial of the cause at the last circuit in the city of New York, the following facts were either proved or admitted. One Obadiah Wells being seised of the premises in question, on the 8th August, 1792, conveyed. the same to one William Cogdill, who, on the 14th May, 1793, conveyed the premises to one John S. Hunn, by a deed as follows :
“ This indenture,” &c.
“ Whereas it was lately agreed by and between the said William Cogdill and William Culverhouse, at present of the city and county aforesaid, but late of the island of Great Britain, that the said William Cogdill should, for the sum of 100Z. current money of the- state of New York, release, convey, and confirm in fee-simple, unto the said William Culverhouse, or such other person or persons as he should appoint, all and singular the lot of ground hereafter mentioned, boun
p. 476
[*400] ded and described, and that free and clear, and •freely and clearly, discharged of and from all incumbrances whatsoever, except one certain mortgage executed by Obadiah Wells, late owner of the premises herein after mentioned, unto the commissioner or commissioners of the loan office of the state of New York, upon this lot, together with other lots; 7X1. of the said mortgagee being agreed to be upon, and to be paid by the proprietor or owner of the said lot herein-to be conveyed; which 711. is agreed between the said Cogdill and Culverhouse, shall be a part of the said purchase money, and to be paid and discharged by the said William Culverhouse,, his heirs or assigns. And whereas the, said William Culverhouse, not having as yet resided two whole years within this state, is, by the laws -thereof, barred from holding real estate therein, until the expiration of the said two years, and until he hath taken the oaths of ¡naturalization agreeable to the laws of the state of New York, to remedy which inconvenience, the said William Culverhouse hath appointed John S. Hunn to take the title of the said lot from the said William Cogdill; but in trust for the only use, benefit, and behoof of him the said William Culverhouse, his heirs and assigns: Now this indenture witnessetb, that thé said William Cogdill, in pursuance of the aforesaid agreements ; and also for and in consideration of the said sum of 100Z. to him in hand paid, or secured to be paid by the said William Culverhouse, at and before the ensealing and delivery of these presents, the -receipt whereof is hereby acknowledged, hath granted, bargained, sold,, aliened, released,, conveyed and confirmed, and by these presents; doth grant, bargain, sell, alien, remise, release, convey and confirm unto ■the said John S. Hunn, in his actual possession now being, and to his heirs and assigns for ever, all,” &c.
On the 12th January, 1795, Culverhouse, the lessor of the plaintiff", was. duly naturalized; andón the 26th February following, Hunn, the trustee named in the above-mentioned deed, for the consideration of ten shillings, released to .him/ by deed, the estate so held, in trust.
[*401] - *The words used in the release were:
p. 477
“ John S. Hunn hath remised, released, and for ever quit claimed, and by these presents doth remise, release, and for ever quit claim unto the said William Culverhouse, and to his heirs and assigns, all the right, title, interest, property, possession, claim and demand of him the said John S. Hunn, his heirs and assigns, of, in, and to all, «fee. and the reversion and reversions, remainder and remamders, rents, issues, and profits thereof, of him the said John S. Hunn, his heirs and assigns. To have and to hold all and singular the right, title and interest of him the said John S. Hunn, his heirs and assigns of, in, and to the above described premises and appurtenancesj unto him, the said William Culverhouse for ever.”
It was admitted that the lessor of the plaintiff was never in the actual possession of the premises, which were vacant. After the release from Hunn to Culverhouse, the present action was brought to recover the possession. No office had been found, nor any proceedings instituted in behalf of the people of this state.
Hamilton and Riker for the plaintiff.
Wortman, contra.
It does not lie with the defendant to object to the alienism of the lessor of the plaintiff; for the interest granted to Culverhouse was not forfeited, so as to vest the title in the people of the state, until after office found ; "(Co. 53, Page's case ; Powell on Devises, 317; 7 T. R. 398; 1 Bac. Abr. 81, 133 ;) and until then, he was competent to hold the land against third persons. Even if the defendant could make this objection, yet the lessor of the plaintiff having been naturalized, that naturalization has a retroactive effect, so as to be deemed a waiver of all liability to forfeiture, and a confirmation of his former title.[1] (2 Bl. Comm- 249, 250. Co. Lift. 8 a. Ibid. 129 a. 4 Bl. Comm. 381, 482.) Whether the conveyance to Hunn, therefore, be considered as vesting the estate in Culverhouse, by force of the statute of uses, or not, it is immaterial to inquire, provided the deed from
(a) (a) See infra vol. 3, p. 12i, n. fa) to Jackson ex deni. Ganzevoort v. Lunn. p. 109.
p. 478
Hunn' to Culverbouse,' was sufficient to vest 'the" legal estate. As this release recites the trust, and 'was for [*402] *the further consideration of ten shillings, we think' it a good conveyance. The words are sufficient to raise a use in favor, of: Culverhoúse, and the consideration ought, to determine the effect of a deed more than the formal words used' in it. A release may operate as a grant, (Shep. Touch. 82; Cowp. 599; 2 Wilson,. 275 ;) and vice versa. Where the intent of the parties appears to have been to pass the estate, courts are inclined to give effect to that intent, as far as possible. In the present case, the intent is obvious, and the deed, in judgment of law may be considered as a bargain and sale. Again as ño adverse possession appears to have existed at the time, (and it is not to be presumed,) it may be inferred that the possession accompanied the deed ; and the release may be made effectual by considering it as a grant, or that possession went with it, as circumstances may require. .
Judgment for'the plaintiff.