Reimer v. Muller — 47 N.Y. Super. Ct. 226

Majority

p. 226

MAGDALENA REIMER, Plaintiff, v. JACOB MULLER, Impleaded with others, Defendants.

Headnote

I. Treaties between two nations—United States and WtjrtemBERG.

1. Provision that the citizens of either nation might sell lands situate in the domains of the other, which, but for their alien-age, they would have inherited from a citizen of that other nation.

(a) Requisites to transfer title.

1. In the absence of express provisions on the subject, the sale intended by the treaty must be such as is sufficient

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to transfer an interest in real estate, according to the laws of the place where the real estate is situate.

1. Sbaij. Consequently, in this State, the sale must be by an instrument under seal.

II. Seai.

1. LOST INSTRUMENTS.

(a) Insufficient proof of execution under seal.

1. A witness who had seen the instrument was asked, “ Was it under seal—was there a seal put to it?” He answered :■ “I don’t understand it; I can’t tell it in English. There-was a wafer.” This was the only evidence on the point..

Held,

insufficient.

Before Sedgwick, Ch. J., Freedman and Truax, JJ.

Decided April 4, 1881.

Exceptions ordered to be heard at general term in first instance, the court having directed a verdict for plaintiff.

The action was in ejectment, and the question that' is decided on this appeal relates to whether the defendant gave any competent evidence of the execution of an instrument sufficient to convey an interest in the-premises.

By article II. of a treaty between the King of Wurtemberg and the United States (ratified October 8,. 1844, Treaties, &c., between the U. S. and other Powers, 898), it was stipulated that the citizens of. either nation, who but for alienage would inherit real1 estate from any relative who was a citizen of the other-country, might sell such real estate, within a certain time.

The defendant claimed that an instrument under the treaty had been executed, which transferred an interest to his wife and her brother.

On the trial, the defendant swore that he had received from Germany the instrument, but had lost

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it. He gáve oral proof of its contents, and testified that it was in the German language, and bore the signature of Rosina Wieland, whom he had seen write. Rosina was a person authorized by the treaty to sell. This witness gave no testimony as to a seal upon the instrument. Another witness testified to the question, “You have heard a paper testified to by Mr: Muller 1 A. Yes, sir. Muller got 'a paper. The paper was signed by my mother and my father, George Wieland and Rosina Wieland. Q. Was it under seal; was there a seal put to it? A. I don’t understand it. I can’t tell it in English—there' was a wafer.” There was no other evidence as to the instrument’s being sealed.

The court held that there was no proof of an instrument competent to convey real estate.

Livingston Scott, attorney, and of counsel, for plaintiff, on the point passed on by the court, urged:

Even if the testimony of Müller and Wieland be' true, the alleged lost written instrument did not possess the requisites of a valid deed of land, and was therefore void. The paper described by the witnesses was not a sealed instrument. It did not purport to be a sealed instrument. Wieland says “ there was a wafer but there is no evidence how it was used, for what purpose it was used, nor where it was placed. To make the paper a sealed instrument it must be shown clearly that the wafer was used as a seal, and that it had an impression upon it.

Cook & Schuck, attorneys, and Peter Cook, of counsel, for defendant.

There can be no doubt, that the treaty intended that the sale, permitted by its terms, should.be such a sale as was sufficient

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to transfer an interest in real estate, according to the law of the place where the real estate was situated.

By the law of this State, it is necessary that an instrument should be sealed, in order to permit title to real estate to pass by its execution and delivery. It was therefore necessary for the defendant to show that the paper under which he claimed, had been executed by the parties signing it and attaching their seals to their signatures.

The only witness on the point said, in effect, that he didn’t understand what a seal was, and added, there was a wafer. There was not the slightest evidence as to the relative situation of the wafer and signatures. In effect, the signature and seal are, in law, one thing. On the evidence the jury would not have been justified in finding that the evidence showed that the wafer had been placed upon the paper by the signers or by their consent, as evidence that they had executed the instrument. I, therefore, am of opinion, that the instrument did not appear to be sufficient to pass real estate, under the. treaty.

The exceptions are overruled, and judgment on verdict directed to be entered, with costs.

Freedman and Truax, JJ., concurred.