Bradstreet v. Clarke

By the Court,

A writ of right is the highest writ in the law, and lies not for the recovery of any estate less than afee simple. 3 Black. Comm. 193. Booth on Real Act. 84. It regards the legal estate only, and has nothing to do with mere equitable interests. Even in the possessory action of ejectment, the legal title always prevails ; much more in this action, (which is brought after the ordinary possessory remedies are lost by lapse of time or otherwise,) in which the right of possession can be established only by showing a full and absolute right of property. Our inquiry then is for the legal title. If the demandant never acquired that, however strong and persuasive her equities may be, or may have been, she cannot succeed in this action or in the former.

Admitting, for the present, that Gen. Bradstreet, acquired a legal estate in the Springfield patent, by way of resulting trust, under the purchase made by Gen. Schuyler, I shall, in the first place, inquire what became of that estate upon the death of Gen. Bradstreet. To whom did it pass under his will ? Did it vest in his daughters, Agatha and Martha, or in his executors, Schuyler and Smith? The will, so far as it relates to this question, is as follows: “ All the rest of my estate, real and personal, I devise and bequeath to my two daughters, equally to be divided between them, as tenants in common, in fee; but I charge the same with the payment of £100 sterling per annum to their mother during her life. Notwithstanding the former devise for the benefit of my wife and daughters, I empower my executors to do all acts and execute all instruments which they may consider to be requisite to the partition of my landed estate. And I devise the same to them <zs joint tenants to he hy them sold at such time and in such man

Thus the word estate or estates in a will carries a fee to the devisee. In the Countess of Bridgwater v. Duke of Bolton, 1 Salk. 237, the terms of the will were : “ all other my estate, real and personal, I give to my son-in-law, J. S.” Holt, Ch. J. remarked, that the word estate was genus generalissimum, and included all things, real and personal; that it was not only a designation of the thing devised, but also of the testator’s interest in it, and covered the whole. In Barry v. Edgeworth, 2 P. Wms. 523, the terms of the will were : “I devise all my land and estate in D., to J. S.” The question was, whether J. S. took more than a life estate; and it was held that these terms were not only descriptive of the lands intended to be devised, but also of the testator’s interest therein, and that a fee passed. The master of the rolls remarked that the case of the Countess of Bridgwater v. Duke of Bolton, had settled the law on this point: that a devise of all one’s real estate, comprehends not only the thing, but also the interest in it. In Roe v. Harvey, 5 Burr. 2638, Lord Mansfield said, that the word estate carried every thing, unless restrained by other expressions. In Roe v. Wright, 7 East, 259, the terms of the will were : “ I give, devise and bequeath unto my grandson, John Wright, all my estate, lands, &c, known and called by the name of the Coal Yard, in the parish of St. Giles. It was admitted that the word estate in a will generally comprehended hot only the subject matter of the devise, but also the de-visors interest therein. But it was contended, that in this

This doctrine was considered by the supreme court of the United States, in Lambert’s Lessee v. Paine, 3 Cranch, 97 . It was discussed with great ability by the counsel. The words there were, “ I give to Doctor George Gilmer all the estate called Marrowbone, lying in Henry county, containing by estimation 2585 acres. It was argued with great force, or at least great

But the executors took a fee in the testator’s landed property, not only by virtue of the term estate, but also by necessary implication, from the power given them to sell and dispose of it. Chancellor. Kent states the principle upon this subject with great accuracy and perspicuity, in the case of Jackson v. Robins, 16 Johns. R. 588, in which the construction of Lord Stirling’s will was involved. He saysj “ It may be laid down as an incontrovertible rule, that where an estate is given to a person generally or indefinitely with a power of disposition, it carries a fee; and the only exception to the rule is, where the testator gives to the first taker an estate for life only, by certain and express words, and annexes to it a power of disposal. In that particular and specific case, the devisee for life will not take an estate in fee, notwithstanding the distinct and naked gift of a power to dispose of the reversion.” This doctrine has the authority of Lord Coke, Co. Litt. 9, b., who says, that an estate of inheritance may pass without the word heirs: as if a man devises twenty acres to another, and that he shall pay to his executors £10 for the same, hereby the devisee hath a fee simple, by the intent of the devisor, although it be not the value of the land. So it is if a man devise lands to another in perpetuam, or to give and to sell, a fee simple doth pass by the intent of a devisor. Where A. devised his lands to B.

Although the will is inartificially drawn, I think it admits of very little doubt that the testator intended that the title to his landed estate should vest in his executors, and not in his daughters. Literal effect cannot be given to all the terms of the will, upon any construction of it. There is, in the first place, a clear devise to the daughters; and then a devise, in equally clear and explicit terms to the executors, with directions to sell the estate, and divide the net proceeds between the daughters, in equal shares. It is evident that the testator, or whoever drew the will, was aware that the devise to the executors was incompatible with the previous devise to the daughters, for he says, “ Notwithstanding the former devise for the benefit of my wife and daughters, I empower my executors to do all acts, &c., and execute all instruments,. &c.; and I devise the same to them as joint tenants, to be by them sold,” &c. The clear import of this phraseology is, that the previous provision is in no respect to affect or prevent the legal operation of the latter ; that so far as the first devise was inconsistent with the latter, it must yield to it: Notwithstanding what I have already said, still-1 devise my landed

The premises in question having thus vested in fee in Gen. Schuyler, under the will of Gen. Bradstreet, the next inquiry is, how did he dispose of the estate 1 It appears from Schuyler’s answer to the bill filed against him by Evans and wife, in 1788, that he had anxiously consulted the most eminent counsel in the state, in relation to the most safe and proper manner of discharging himself from the burden of this trust. Letters are set forth in his answer, from Alexander Hamilton, Samuel Jones and Richard Harrison, in answer to his inquiries upon this subject, and giving it as their opinion, that he ought to sell the interest of Bradstreet; that Mr. Ludlow one of the attorneys of Sir Charles Gould, might and would become the purchaser; and that then there would be no difficul

In relation to this conveyance, the counsel for the demand-ant contended, that nothing passed under it to Edward Gould; that Schuyler had only a power to sell under the will of Bradstreet ; that this will was referred to in the deed, and therefore the extent of Schuyler’s power was brought home to the knowledge of Gould; that this conveyance was not a sale, and therefore not an execution of the power, and of course the grantee acquired nothing. This objection assumes that Schuyler had a mere naked power to sell, and if that were true, there would be force in the objection. But if I have been successful in showing that Schuyler took an estate in fee under the will of Bradstreet, this objection is disposed of; for if he had the fee, he had of course the power of alienation, for it is a necessary incident of that estate. The direction in the will that he should sell the estate at such time, and for such price as he should think expedient, and divide the proceeds between the daughters of the testator, did not confer upon him a power to sell — that he had before ; but it was a mere declaration of the trust, under and subject to which he took the estate ; and it passed to the grantee subject to that trust; not merely by virtue of the reference to the wills of General and Martha Bradstreet, but by the express terms of the deed itself.

If Gould did not acquire the legal title under this conveyance, then, so far as the paper title is concerned, independent-

Edward Gould in his own right, and Edward Gould, Richard Harrison and Charles Wilkes, as the executors of Agatha Evans, by deed dated the 11th June, 1796, conveyed the whole of lot No. 32 to William Cooper. Mrs. Evans it will be recollected, owned three fourths of the estate of her father Gen. Bradstreet. She made her will on the 29th November, 1794, by which, after certain bequests, she devises the whole of her estate to Richard Harrison, Edward Gould and Charles Wilkes, their heirs and assigns, upon certain trusts declared in her will, and appointed them her executors. These executors, then, and Edward Gould held the whole legal estate of the entire lot No. 32, and their deed of the 11th June 1796, purported to convey the whole to William Cooper. It is objected to this deed, 1. That it was a deed from Gould in his own right, and not as trustee of the demandant, and therefore did not convey her interest as trustee ; 2. If it would otherwise be held to cover his trust interest, yet, as the deed from Schuyler, under which he derived all his interest and authority in the premises, expressly required him to insert the trusts upon which he held the estate in all the conveyances which' he might make of the same, this deed was void on account of the omission to set forth those trusts upon the face of it;

' The provision in the deed from Schuyler to Gould, that he should set forth the trusts in his conveyances, &c. I apprehend, is to be considered as directory merely, and not as a condition precedent. Its omission did not affect the validity of the conveyance at law; but neither at law nor in equity can the demandant avail herself of it. Under the decree of the court of chancery in favor of the demandant against Gould, he was directed to account for the proceeds of all sales previously made by him. This was in effect a ratification of those sales. The demandant submitted to the decree, accepted a conveyance under it, and although it does not appear that ap account was actually stated between her and Gould, such is the legal presumption. In judgment of law she has received the proceeds of this sale, and cannot now object to its regularity.

Having thus traced the legal estate in the premises in question down to 1796, and having shown it then to have vested in William Cooper under the deed from Gould and the executors of Mrs. Evans, I deem it entirely unnecessary to examine the subsequent conveyances from Cooper and his grantees and executors, by which the tenant contends he obtained a regular and valid paper title. We have already traced it one stage beyond the point from which the demandant con

From 1796 down to the commencement of this action in 1829, a period of thirty-three years, these premises have been actually occupied and improved under a claim of absolute title and ownership, by virtue of this conveyance to Cooper; and this possession, from its commencement to the present time, has been marked by all the characteristics necessary to render it adverse to all the' world. It cannot be necessary for me to go into a review of the cases upon this subject. If there is any doctrine familiar to the profession in this state, and to this court, above all others, it is the doctrine of adverse possession. To constitute an adverse possession, it is not necessary that there should be a rightful title. All that is necessary is, that it should be a possession taken and held in good faith under claim and colour of title, and exclusive of any other right. The defence of adverse possession assumes that the defendant has not a valid legal paper title ; if he had, he need not rely upon the length of his possession. The fact of possession and the quo animo, it was commenced and continued are the only tests. Teller v. Burtis, 9 Johns. R. 174. Smith v. Lorillard, 10 id. 356. Jackson v. Wheat, 18 id. 40. Jackson v. Newton, id. 355. Dunbar v. Todd, 2 Caines, 183. Jackson v. Ellis, 13 Johns. R. 118, Livingston v. The Peru Iron Co. 9 Wendell, 511. He need not even produce the deed under which he claims ; and if, when produced, it is defective as a deed, as for the want of a seal or otherwise, it will not destroy the effect of the defendant’s possession. 18 Johns. R. 40, 361. Jackson v. Le Frambois, 8 Cowen, 594, 596. It was said by the counsel for the demandant, that, as Edward Gould, the grantor of Cooper, professed to act only as the attorney for Sir Charles Gould, the executor of Martha Bradstreet’s will, under which the demandant claims, the possession under his

Whether the executors of Mrs. Evans conveyed to Cooper with or without the consent of the Symingtons, is a matter with which the demandant has no concern. The Symingtons never having objected to the sale, the legal presumption is that they assented to it and received from the executors their distributive share of the proceeds. As to the demandant it is res inter alios acta.

According to the true construction of the decree of the court of chancery, under which the deed from Gould to the demandant of 22d October, 1804, was given, and of the deed itself, none of the lands previously sold and conveyed ■ by Gould were embraced therein. He was to account for the proceeds of previous sales, and convey all that remained in his hands.

It was suggested by the counsel for the demandant, that the statute of limitations in relation to real actions allowed of cumulative disabilities. The language of the proviso affords some color for the suggestion; it is, “ that no part of the time during which the plaintiff shall have been within the age of 21 years, insane, feme covert, or imprisoned, shall be taken as a part of the said limitation of 25 years.” But it is believed that the same construction has uniformly been given to this proviso, in this respect, as to that in relation to possessory actions — that where the statute has once begun to run, a subsequently accruing disability will not impede or suspend it. The counsel cited no authority in support of their construction, and I am persuaded none can be found. There certainly can be no reason for allowing of cumulative disabilities to a real action, which would not apply with equal force to the action of ejectment.

Having come to the conclusion that the demandant has failed to show a legal title to the premises in question, it is not necessary for me to enter at length into the discussion of the question, whether a constructive seisin alone, resulting from the proof of a legal title without actual seisin, would have entitled her to recover in this action. At common law actual seisin was undoubtedly necessary to maintain a writ of right. There , is no discrepancy in the authorities upon this point. Lord Coke, Co. Litt. 293, a, says, “ if neither the demandant nor any of his ancestors were seised of the land within the time of limitation, he cannot maintain a writ of right, for the seisin of him of whom the demandant himself purchased the land availeth not.” In Belville’s case, Coke’s R. part 4, p. 9, it is said: “ So the seisin which is requisite in a writ of right of land ought to be actual and not seisin in law. ” Booth, in his valuable Treatise on Real Actions, page 111, says: Because possession is an evidence of right and property, therefore, in all real actions in the right (except such as are grounded upon the seignory, and not upon the seisin of the land as a writ of escheat, &c.) for recovery of lands and tenements, the de-mandant in her count must allege a seisin and taking of the profits, which is called the esplees, so that it must be an actual seisin. ” Mr. Sergeant Williams, in a note to Williams v. Gwin, 2 Saund. 45, b., says: “ In order to maintain this action, a writ of right, the demandant must show an actual seisin, either in himself or his ancestor, by taking the esplees or profits of the land; therefore it is held that a.purchaser cannot maintain the action, except upon his own seisin. ” I had occasion to refer

The power of the court to grant a new trial in a writ of right is too clear to require discussion. There is neither reason nor authority against it. The verdict is against law and evidence, and a new trial must be granted.

New trial granted.