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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 318 This was not an action brought by the people, under 2 R.S., 578, § 12, or under § 433 of the Code of 1849, to vacate either the Dongan or the Cornbury patents mentioned in the pleadings. Whether such action could be maintained at this day, to vacate patents granted by the crown a century and a half ago, it is needless now to inquire. (People v. Clarke, 10 Barb., 120.)
The action, on the contrary, is in the nature of an ejectment, though not called by that name since the adoption of the Code of Procedure. It is believed, however, to be governed by the principles which the legislature has established in relation to that action. By the Revised Statutes, it is enacted that no person can recover in ejectment, unless he has at the time of commencing the action a valid subsisting interest in the premises claimed, and a right to recover the same, or to recover the possession thereof, or of some share, interest or portion thereof, to be proved and established on the trial. (2 R.S., 303, § 3.) If the premises for which the action is brought be actually occupied by any person, such actual occupant must be named defendant in the declaration; if they be not so occupied, the action must be brought against some person exercising acts of ownership *Page 319 on the premises claimed, or claiming title thereto, or some interest therein, at the commencement of the suit. (Ib., § 4.) These principles are alike applicable to the people, when prosecuting an action to recover the possession of land, and to private persons. The former as well as the latter must, to entitle them to a recovery, establish a valid and subsisting title in themselves, and right to recover possession at the time the action was commenced, and show that the defendants were in possession or claimed title to the premises in dispute. With respect to making out the proof of title in themselves, the people have an advantage over an individual. By right of sovereignty, they are deemed the owners of all the lands within the state, except such as have been granted to others, or have been lost by lapse of time. Hence, it is enough for the people to prove, in the first instance, that the premises in dispute were vacant and unoccupied within a period necessary to constitute an adverse possession against them, and that the defendants subsequently entered or made claim to them. (Wendell v. ThePeople, 8 Wend., 183; The People v. Denison, 17 ib., 312; 1 R.S., 718, § 1; Constitution, § 11, art. 1.) At the time the counsel for the people rested the cause in this case, there was no sufficient evidence before the court to entitle the plaintiffs to recover, or to require the defendants to be put upon their defence. First, there was no proof that the premises had been ever vacant and unoccupied, or that they were primafacie without the bounds of any patent; and secondly, there was no evidence that the defendants were in possession, or that they claimed title. Although the defendants' possession was asserted in the complaint and admitted in the answer, yet it was denied in the reply. The people are bound by the allegations in their pleadings, like individuals. Notwithstanding the reply was a clear departure from the complaint, and as such obnoxious to a demurrer, it is still binding upon the plaintiffs. The pleadings and the whole case show that at the time the plaintiffs rested, they sought, without any evidence of title *Page 320 in themselves, to recover judgment against parties who, their reply asserts, never possessed the lands described in the complaint, and were never entitled to that possession. The judge erred, therefore, in putting the defendants upon their defence. The first exception was consequently well taken. But as the cause was subsequently tried upon its merits, and has been fully and ably argued by learned counsel in this court, it will probably be more satisfactory to all parties that we pass upon one or more of the questions which will be decisive of the action, not only in this but in any future litigation upon the same subject.
If either the patent of 1685, called the Dongan patent, or that of 1704, called the Cornbury patent, was sufficient to divest the crown of the title to the land embraced within its boundary lines, the present action cannot be sustained. The people at the revolution succeeded to the rights of the crown, and had the same right to repudiate public grants which the latter possessed, and no more. (1 Greenl. L.N.Y., 31, § 14.) In considering this case, we must not lose sight of the fact already stated, that this is not an action to revoke those patents or either of them, and that the learned judge has found as a fact, that the patents were not, nor was either of them, obtained by any fraud, concealment or false suggestions, or recitals on the part of the patentees, nor was the king deceived in making said grants. This finding was, in my judgment, based upon sufficient evidence and arguments, and as it has not been appealed from by the people, it must be assumed as the law of the case, in the further discussion of the questions before us.
Although this is not a direct proceeding to vacate the patents, it cannot be denied that objections showing that they were absolutely void from the beginning are open to consideration. In a collateral action they cannot be assailed for any other cause. (Jackson v. Marsh, 6 Cow., 281; Jackson v. Lawton, 10John., 23; Jackson v. Hart, 12 John., 77; *Page 321 Bagnell v. Broderick, 13 Peters, 436; The People v.Mauran, 5 Denio, 389.)
The learned judge by whom the cause was tried found, as matter of law, that the grant of lands in both patents was illegal and void, because manorial privileges and franchises were by both conferred upon the lord of the manor. And in his learned opinion, furnished to the court on the argument, he holds the Cornbury patent to be also void, because the Dongan patent had already conveyed all the title of the crown to the grantees therein named. If the reason for this latter opinion be correct, the plaintiff had not the slightest ground for a recovery, and judgment should have been given for the defendants. If the crown parted with all its title to the land in 1685, and that title had not been revested by escheat, or otherwise, it had indeed nothing upon which the patent of 1704 could operate, and nothing to which the people at the revolution could succeed; and consequently the latter had no cause of action.
The important question, therefore, is, was the Dongan patent of 1685 operative to convey the title of the premises therein described to the grantees therein mentioned. In considering this question, we must call to mind the issue which has been framed by the pleadings. The first issue on this point tendered by the plaintiffs is, that no such patent was ever granted; and the second is, that if granted, it was obtained by fraud or upon false suggestions, or concealment of some material fact on the part of the grantee or grantees, and was and is therefore void and of no force, effect or validity. The first issue is equivalent to nul tiel record, and is effectually disposed of by the production of the patent itself, or a legally authenticated copy. The learned judge did not overrule the defence on the ground that no patent, as described in the answer, ever existed. He concedes its existence, but asserts its invalidity on the ground of matter apparent on its face. The second issue, *Page 322 though loosely framed, was disproved on the trial, and was expressly found for the defendants by the learned judge.
The judgment of the court below, that the Dongan patent was and is null and void, was therefore based upon a ground not set up in the pleadings, or put in issue by them.
It is not denied by the court below that the operative words of grant in the patent were sufficient to convey all the title of the crown of Great Britain to the land described therein to the grantees therein named in fee simple. Had it not been for the grant of manorial privileges and franchises in the same patent, I do not understand that the sufficiency of the instrument to convey land would have been questioned. We are then brought to consider whether a patent of land, granted by the colonial government in 1685, containing the appropriate words for passing the title in fee to real estate, is rendered void and inoperative, because in the same patent a power is conferred upon the grantees to hold a court leet and court baron, and to enjoy the other manorial privileges specified in the Dongan patent. The court below held it to be void for that reason alone.
There are two answers which may be given to this question: First, it was within the competency of the colonial government in 1685 to grant a manor, with the usual incidents and franchises of an English barony; and second, if it had no such right, and nevertheless made such grant, in a patent which also, in a distinct part thereof, contained the usual grant of lands to the patentee, his heirs and assigns, the manorial grant alone will be void, and the grant of lands operative and effectual.
I do not propose to discuss the first question, although I believe the original grant to have been valid in this respect, and the acts of recognition by the colonial legislature to be of such a character as conclusively to estop the government from impeaching its validity in a collateral action. I shall leave this point, however, to be examined *Page 323 by Judge DENIO. Whether the manorial privileges were rightfully granted or legally enjoyed during the continuance of the colony, is not indispensable to the proper determination of this action, unless, indeed, the inserting of those privileges in a grant of lands invalidates the grant. The latter, therefore, is the only point to be considered by me.
The two rules of most general application in construing a written instrument are: First, that it shall, if possible, be so interpreted that it shall be effectual, ut res magis valeat quampereat; and second, that such a meaning shall be given to it as may carry out and effectuate, to the fullest extent, the intention of the parties. (Broom's Maxims, 273, 414.) The principles which govern the construction of private grants are, with some qualifications, applicable to grants from the government. If the king's charter, says Coke, "will bear a double construction, one which will carry the grant into effect, the other which will make it inoperative, the former is to be adopted." (Rutter v. Chapman, 8 Mees. Wels., 102, inthe Exchequer Chamber, per TINDAL, Ch. J.) In accordance with the same principle, where divers persons join in a deed, and some are able to make such deed and some are not able, this shall be said to be his deed alone that is able (Shep. Touch., 81), and if a deed be made to one that is incapable and another that is capable, it shall enure only to the latter. (lb., 82.) The same doctrine is applicable to the subject matter of a grant. If with respect to a part of the thing granted, the grantor have a right to convey, and with respect to the residue he has no right, the deed will be available as to the part to which the grantor had title, and void as to the residue. This rule prevails in relation to grants from the government. In Danforth v. Weur (9Wheat., 673), both parties claimed title to the land in controversy under grants from different states. The grant to the plaintiff was of land, to a part of which the Indian title had not been extinguished, and which, according to law, was not the subject of grant; yet this *Page 324 grant was held good as to the land where the Indian title had been extinguished, and void as to the rest. The same principle was again asserted by the same court in Patterson v. Jenks (2Pet., 236). A similar doctrine was advanced by the English Common Pleas in Doe v. Pitcher (6 Taunt., 359), where a deed of land limited to a use within the statute (9 Geo. II.,ch. 36), and therefore null, was held not to avoid other limitations in the same deed, not within the act. The case ofThe People v. Mauran (5 Denio, 389) is to the same effect. By the act of 1813 (1 R.L., 202, § 5), all letters patent are required to contain an exception and reservation to the people of this state of all gold and silver mines. A patent was granted in 1816, conveying the premises therein described to the grantee, without the exception required by the statute. An ejectment was brought by the people to recover the land, and among other reasons in favor of their recovery it was urged that the patent was void for not containing the required exception and reservation. But the court held that the patent was good for the land and void for the mines. The rule which makes a deed or contract illegal in part, void in toto, applies only to cases where the two parts are so inseparably connected that one cannot exist without the other. The acts of agents who do more than they are authorized to do, rest upon the same principle. They are good for that which is warranted, and void for the rest. (Co. Lit., 258; Story on Agency, §§ 166, 167; 5 Denio, 397.) In like manner, if a feoffment be made on condition to do a thing which is malum in se, as to kill or rob J.S., the estate of the feoffee is absolute, and a bond made on such condition is void. (Bac. Abr., tit. Condition, K.)
In the present case, if it be admitted that a manor could not exist without a grant of land, it cannot be denied that a grant of land without manorial privileges is good. Upon every legitimate principle of construction, the estate granted by the patent was good and vested in the grantee, even if the residue of the grant was void. It follows, from the *Page 325 foregoing reasoning, that the title to the premises embraced within the manor lines passed by the patent of 1685 to the grantees therein named, and is not shown to have ever reverted to the colony or to the people. The latter, therefore, had no right to maintain this action.
It is not necessary in the present action to establish the title of the present owners of this manor, nor would any further remarks be deemed necessary but to remove the doubts which the decision of the court below may be presumed to have cast upon the title of the Van Rensselaers to the unoccupied portions of the territory. The Dongan patent was granted to Killian the son of Johannes Van Rensselaer, and Killian the son of Jeremias Van Rensselaer, their heirs and assigns, in trust to and for the use and behoof of the right heirs and assigns of Killian Van Rensselaer, the grandfather, c. The recitals in the patent of 1704, show that at the time of the latter patent, Killian Van Rensselaer, eldest son of Jeremias, had become solely seized and possessed of the whole colony of Rensselaerwyck, with the hereditaments and appurtenances. The latter patent, reciting the former, and the various facts which showed the title vested in Killian, confirmed the same to him, and his heirs and assigns forever. It must be admitted that these recitals and this act of the government were not binding upon other parties. The time which had elapsed since the patent of 1685, was long enough to have satisfied all the trusts contained in that patent, and they might well be presumed to have been satisfied, and the whole estate vested in Killian, the patentee in the last patent. Its effect was to vest in the patentee every latent interest of the crown, if any there remained. In an action to revoke a patent granted by the crown, the recital of facts not within the knowledge of the government are the suggestions of the patentee, and must, if material, be proved by him. The king is not estopped by a recital in his patent, but the law will rather adjudge him to be deceived. (1 Co., *Page 326 43; 5 ib., 55; 6 ib., 55; 10 ib., 112.) But in the present case the pleadings do not put the recitals in issue, and the learned judge has found as a fact that neither of the patents were obtained by any fraud, concealment or false suggestions or recitals on the part of the patentee; and the action moreover is not brought to revoke the patent, but to recover the land upon the ground that no patent ever existed, or if it did, that it was void. A valid commencement of an estate is shown in the patentee under the patent of 1704, which, even if defective, ripened into a right more than a century ago, as against all the world. Either patent is sufficient to bar all right of the people to maintain the present action.
It remains to consider, though not very essential to the defence, some acts of recognition on the part of the government, of the existence and continued ownership of the patent by those in whom the paper title has been traced, and the acts of ownership which have been exercised without interruption by the ancestors of the present owners from the earliest day. These acts on the part of the proprietors consist of granting leases, collecting rents and paying taxes. The acts of recognition by the colonial assembly, by the constitution of 1777, and by the legislature of the state since the revolution, are numerous, and have already been referred to.
It has already been stated that a quit-rent of fifty bushels of wheat annually was reserved in both patents. By the act of April 8, 1801 (1 K. R., 605, 6, § 4), it was enacted that any person seized of any lands, c., as contained in any original grant of the same, charged with an annual quit-rent, might commute for the same by paying to the treasurer of this state, for the use of the state, $1.50 for every twelve and a half cents of such annual rent. The section then points out the receipt which is to be given, describing the lands and tenements on which the said quit-rent was chargeable, the date of the grant reserving it, the sum paid *Page 327 in lieu of it, the officers by whom it is to be countersigned, and the book in which it is to be entered, and enacts "that the said receipt or certificate being so countersigned and entered, or the entry thereof, shall be a good discharge of such quit-rent forever."
The defendants' counsel prove that on the 4th of November, 1752, all the quit-rents on the patent were paid from March 25, 1737, to March 25, 1752, being seven hundred and fifty bushels of wheat. It was also shown by the comptroller's certificate, that on the 26th of December, 1806, Stephen Van Rensselaer paid up all the arrearages of quit-rent on the upper manor, and commuted for the said quit-rent under the act of 1801. Two other receipts for quit-rent were given in evidence, one for fifty bushels of wheat, dated in March, 1687-8, and the other for three years' quit-rent, and dated December 1, 1705. The form of the commutation receipt was not according to the statute, nor was the apportionment proved to have been made between the upper and lower patents. The payment and commutation were made upon the upper patents, in which the premises in question are situated. The learned judge, in his consideration of the case, laid out of view the effect of these payments and commutations on account of the defect in the evidence by which they were sought to be established. But it appears by the bill of exceptions that the evidence was not objected to, and further, that "no objection was made to the form or sufficiency of the evidence, nor any question raised upon the trial or argument, on the facts as to the payment of and commutation for the quit-rents on the whole manor, but the cause was argued as if such commutation had been fully proved." Under these circumstances, the court below should have treated the cause as if the evidence had been conformable to the statute; and it should be so viewed by this court.
The objection that the rent was payable in wheat, and that the statute is silent as to the commutation of wheat *Page 328 rents, is without force. The statute is general, and applies as well to rents payable in wheat as rents payable in cash. It is well settled in this state that rents payable in wheat, stand on the same footing as rents payable in cash. (2 Barb., 643; 5Denio, 121; 2 Comst., 135.) As the payment of rent by a tenant is a conclusive acknowledgment of the paramount title of the landlord, so the receipt of rent by the landlord is an unequivocal recognition of the estate of the tenant. The effect of the commutation of the quit-rent is the same upon the rights of the parties as if the people had made a new grant of the patent, without reservation. Such grant enures to the tenant by way of extinguishment of the rent. (Lit., § 543.) A grant of the rent to the tenant would have the same effect. (Lit., § 544.) The receipt of the sum which the statute prescribes as a commutation of the rent, works not only under the act as a discharge of the rent, but as a confirmation of the estate. The reversion no longer remains in the people, and all the remedies of distress, entry and sale of the premises, provided by the statute in case of non-payment, are gone forever. The plaintiffs cannot, after having received rent on the patent for above a century, and at last the commutation money under the statute, maintain an ejectment for the same land, founded upon a supposed defect in the original grant.
As the cause must go back for another trial, and will again be tried if the attorney-general shall so elect, it may be well to pass upon the question of the statute of limitations, interposed in the answer. The people of this state have enacted that they will not sue or implead any person for or in respect to any lands, by reason of any right or title of the people to the same, which shall not have accrued within the space of forty years before suit for the same be commenced, unless the people, or those under whom they claim, shall have received the rents and profits thereof within the space of forty years. (1 R.L., 184, § 1.) In the case of *Page 329 The People v. Arnold (4 Comst., 508, 513), this court held that to constitute a bar to the right of entry of the people, there must be such a holding for forty years as would constitute a good adverse possession, if the land had been owned by an individual instead of the state.
The court below held the statute applicable only to those parts of the manor which had been actually held under lease from the proprietors more than forty years prior to the commencement of the suit, and not available to the defendants with respect to this particular lot, because it had never been so occupied. I differ from the court below in this respect, and without adverting to the earlier statutes, am of opinion that the claim of the people is barred by the act of 1801. (1 R.L., 184.)
Although for the purpose of this question it must be assumed that both patents were void, still the defendants' title is founded upon a written instrument purporting to be a grant from the colonial government embracing within its limits the premises in dispute. The court below overlooked the fact that the defendants and those under whom they claim paid both rent and taxes upon the whole patent, and therefore upon the lot in question; employed agents to protect the latter from trespassers, and finally actually leased it to a tenant a few years before the action was commenced. Moreover, they leased out all the land surrounding it to actual occupants. Here was a sufficient possession of the lot, though no one resided upon it, to bring it within the rule required by the statute of limitations. (2R.S., 294, § 10.) The statute was designed merely to enact what had been decided by the courts. (6 Cow., 679, 623.) It was merely declaratory. If the defendants had such a possession as to enable them to be sued in ejectment, they had such possession as would, if continued long enough, ripen into a right. If they had such possession as to be liable to taxation, they ought not, in common fairness, to be treated as having no possession *Page 330 by the government which both imposed and collected the taxes.
The remarks of the learned judge in the court below with reference to the improvidence of the grant of so large a territory to a single individual, would have been appropriate, if addressed to the colonial government by whom it was made. But the question for the courts is, not whether the mode of granting patents of large tracts of land to single individuals was best adapted for the good of the colony, but whether the grant in question was in fact made. The one is a question of public policy, which the experience of modern times has wisely settled adversely to the practice which prevailed in the infancy of the colony. The other is a mere question of fact, which must be decided by the record of the grant, or acts of recognition by which its existence can be inferred. Many of the acts on the part of the state, and of the late colony of New-York, have already been noticed, and there are numerous others of the like character, tending strongly to confirm the title under which the defendants claim. But I have not deemed it expedient to dwell longer upon this subject.
The conclusion to which I have come, that the patents were both valid, and were effectual to divest the colonial government of all title to the land in dispute, is enough to dispose of the case upon its merits. I think, too, a regular paper title has been deduced from the original patentee to the present owners, and that their title is good against all the world.
The judgments of the supreme court and circuit court should both be reversed, and a new trial ordered with costs to abide the event.
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