Vrooman v. Shepherd

Hand, J. At the last trial of this cause I supposed that thé majority of the court were of opinion that adverse possession of the property intended to be conveyed, would not invalidate the deed given by the father of the plaintiff to her and others ; and with that understanding, so ruled at the circuit, contrary to the opinion I had before entertained. But it seems that some — 449 — members of the court acted upon a supposed decision of the court of appeals, which it is now said was made upon quite a different state of facts; and, perhaps, without a majority of that court referring to this point at all. If this be so, the question is still open for our consideration. We have statutes upon the subject of conveyances, when the property is possessed adversely. “ Every grant of lands shall be absolutely void, if at. the time of the delivery thereof, such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor.” (1 R. S. 739, § 147.) And “ if any officer, judicial or ministerial, or other person, shall take any conveyance of any land or tenements, or of any interest or estate therein, from any person not being in possession thereof, while such lands or tenements shall be the subject of controversy by suit in any court, knowing the pendency of such suit, and that the grantor was not in possession of such lands or tenements,” it is a misdemeanor. (2 R. S. 691, § 5.) And so it is for any person “to buy or sell, or in any manner procure, or make or take any promise or covenant to convey any pretended right or title to any lands or tenements, unless the grantor thereof, or the person making such promise or covenant, shall have been in possession, or he or those by whom he claims shall have been in possession of the same, or of the reversion or remainder thereof, or have taken the rents and profits thereof, for the space of one year before such grant, conveyance,” &e. (Id. § 6.) These fifth and sixth sections are penal, and are a revision of the former statute. (1 R. L. 172, 3, §§ 1, 2, 8.) The English statutes are also penal. (3 Ed. 1, c. 25, c. 28; 13 Ed. 1, c. 49; 28 Ed. 1, st. 3, c. 11; 33 Ed. 1, st. 2, 3; 1 Ed. 3, pt. 2, c. 14; 20 Ed. 3, c. 4; 1 R. 2, c. 4, c. 7, c. 9; 32” Hen. 8, c. 9.) Under these and our own statutes it seems that the validity of a gift, conveyance or assignment within the statutes in relation to champerty, and the liability of a party for maintenance, may depend upon the fact, whether the grantee, &c. had any interest, vested or contingent, legal or equitable, certain or uncertain, in the property attempted to be transferred; or upon the relationship of the parties; as the ease may be. (Finch v. Cockaine, Sav. 92. Patridge v. — 450 — Strange, Plowd, 77; S. C., Dyer, 74, b. Wickham, q. t. v. Concklin, 8 John. 220. Thallhimer v. Brinckerhoff, 3 Cowen, 623. Gilleland v. Failing, 5 Den. 308. Campbell v. Jones, 4 Wend. 306. Webb v. Bindon, 21 Id. 98. Van Dyck, q. t. v. Van Beuren, 1 John. 344. Berrien v. McLane, Hoff. 421.) And, perhaps, a poor man may be assisted. (Perine v. Dunn, 3 John. Ch. R. 518. Lord Abinger, in Findon v. Parser, 11 M. & W. 682.) One of the leading cases on the subject of champerty, is Finch v. Cockaine, (supra.) That was an information under the statute, decided in the time of Elizabeth. The father gave a lease to his son and heir apparent, for the purpose of bringing an ejectment, and it was held not to be within the statute. Many of the adjudged cases were of the same kind. And in this case, under these decisions, it is probable, neither the plaintiff nor Philip Brotherson violated any penal statute. But none of these cases hold that the instrument was operative as a transfer, in those cases. The common law declared void, as to the party in possession, a conveyance made When the land was held adversely to the parties to it, and also most Contracts in relation thereto. (Livingston v. Proseus, 2 Hill, 526. Burt v. Place, 6 Cowen, 431. Litt. § 347. 4 Kent, 446. Co. Litt. 214, a. 2 Hill. Abr. 316. Williams v. Jackson, 5 John. 489. Doe v. Evans, 1 C. B. 717. Underwood v. Lord Courtoun, 2 Sch. & Lef. 65. And see Teele v. Fonda, 7 John. 251; Jackson v. Ketchum, 8 Id. 479; Hoyt v. Thompson, 3 Sandf. R. 416; Best v. Strong, 2 Wend. 319; Thalimer v. Brinkerhoff, 20 John. Rep. 396; Shep. Touch. 240; Harrington v. Long, 2 My. & K. 590; Byrne v True, 2 Moll. 157; Ward v. Van Bokkelen, 2 Paige, 289; 2 Star. Eq. 1048, et seq.; 1 Hawk. c. 83; Ros. Cr. Ev. 667; 1 Russ, on Cr. 176, et seq.; 15 Ves. 139; 3 Id. 494, Am. notes; Chartier v. Knapp, MSS. 4th Dist.; Porter v. Perkins, 5 Mass. R. 233; Warren v. Child, 11 Id. 222; Mayo v. Sibly, 12 Id. 343.) The life estate of a tenant by the curtesy clearly then cannot be conveyed to a stranger. But suppose it is to be considered, in this respect, the same as any other life estate carved out of a fee; the remainder being in the plaintiff; I do not see how this — 451 — conveyance can be sustained. A surrender, which is the falling of a lesser estate into a greater, may be by any form of words by which the intention of the parties is manifested. But the surrendcrer must be in possession. A right cannot be surrendered. (Co. Litt. 338, a. 4 Cruise, 157. 2 Bl. 326. 20 Vin. 121, 126. 1 Saund. 236, a, n. g.) Therefore if lessee for life or years be ousted of the land by a stranger, and after ouster, and before his entry, surrenders to his lessor, it is not a good surrender, for he has but a right at the time of the surrender. (Id. Perk. § 600.) Nothing in action, entry or re-entry, can be granted over. (Co. Litt. 214, a.) If we consider this in the nature of a release, we are met with the same difficulty.. A release must be to one in possession. (4 Crui. 143, 144. 18 Vin. 298. Litt. §§ 447, 449, 451. Co. Litt 266 b, 267 a, 268 a. 2 Bl. 324. Lampets case, 8 Rep. 48 a.) Littleton puts a case of a release by the lord to a tenant disseised, by which the seigniory becomes extinct. (§§ 454, 479.) But this is but a mere extinguishment. The reversion is not conveyed. When it is said a release must be to one in possession, it is true, actual possession is not always intended. The release from a stranger that hath a right, may be to the tenant of a freehold, in deed or in law, or to him in remainder; or in the reversion. (Litt. § 450. 4 Crui. 151.) Seisin in deed, is actual seisin or possession; and seisin in law, when, after descent, the person on whom the lands descend, has not actually entered, and the possession continued vacant. In cases of lands of inheritance, the tenant of the freehold in possession, and the persons in remainder or reversion are equally in the seisin in fee; the tenant in possession is said to have the actual seisin, and the fee is intrusted to him. Any act of a stranger, which disturbs his estate, is a' disturbance of the fee. (Butler's note to Co. Litt. 266 b.) The tenant of the freehold in fact or in law may take by release. (10 Rep. 48 a.) And as we have seen, the lord may release a right to the tenant though disseised, as rent, &c„ Indeed the eases mentioned in Lampéis case, (Id.) are put as releases to the terretenant for his repose and quiet, and to avoid contentions and suits. A right to immediate possession, is not — 452 — necessary, for estates in remainder and reversion may be granted by lease and release; but they must be actually vested; and then, if the terretenant is in under the same title, he of the reversion is also in.' (And see Litt. § 450.) Therefore, in case of a lease for years, remainder for life, a release by the lessor to the lessee for years and his heirs is good, and also to him in remainder for life and his heirs, to enlarge the estate. (Co. Litt. 273 a. 18 Vin. 296.) But there must be immediate relation and notorious possession. (Gilb. on Ten. 66.) For it is different if the estate has been assigned. (Id.) I am aware the reporter states that it was decided in Anson v. Lee, (4 Sim. 364,) that when B., claiming to be tenant in tail, with remainder to 0. in fee, of lands in the adverse possession of D,, conveyed by lease or release, all his interest to C., this conveyance was not within the statute of 32 Hen. 8, c. 9. The bill was against the devisee of the first tenant in tail male; by the ¿remainderman in tail male and remainderman in fee, to have .their rights declared in certain estates to which they claimed to be equitably entitled, &c.; the devisee having taken possession. It was objected that the plaintiff, tenant in tail, had released to the remainderman in fee, while the defendant held adversely; and the vice-chancellor held that the objection was unfounded, stating he did not see any reason why the tenant in tail should not have released such right or interest as he had in the estates. If this dictum be law, it does not overrule the general principle. It made little difference to the defendant which of the plaintiffs was entitled to the property, if not his. The plaintiff, tenant in tail, had died without issue before the hearing; and besides, it was a matter of equitable jurisdiction. (And see 2 Stor. Eq. 1050, and note.) And even in that case, the eminent counsel who appeared for the plaintiffs, thought proper to join the grantor or releasor as co-plaintiff. Indeed, it seems a release may sometimes be operative, though one has not such right, title.or estate, as would entitle him to immediate possession, there being no .disseisin. As a devise for term of years, to A. for life, remainder to B., B.’s release to A. operates to extinguish his interest. And so, perhaps, of equitable interests, — 453 — where there is no maintenance, or where the estate has not yet vested. (And see Doe v. Walker, 5 B. & C. 111, Bayley, J.) But where the lessee for life is disseised, the rule in relation to 'surrender prevails; and his conveyance clearly is void as a surrender; and cannot operate as a release, for the tenant for life cannot release to him in reversion. (18 Vin. 307, I. 16.) And, a fortiori, not when the property is held adversely, both to the releasor and releasee. And certainly this rule should hold in case of a tenant by the curtésy, who, unlike a widow before dower is assigned, is a tenant for life by operation of law, and can re-dude the estate to immediate possession. (And see Co. Litt. 273 a; Clan, on Rights Mar. Worn. 184.) The defendant may inquire into the validity of this deed; not only because the plaintiff must make out a present right to possession, but because, if the deed be valid, this particular estate is merged and gone; and the liability of the defendant is thereby turned over to another, who could not otherwise have sued him. If these views are correct, of course there must be a new trial; for the jury might have found there was an adverse possession at the time the deed was given; and that P. B. was tenant by the curtesy. The defendant further insists that if Taylor and Jones had entered upon and occupied the land under a contract to purchase made with P. R. Kissam, and payments mere made, there was no such seisin in fact, as would constitute Philip Brotherson a tenant by the curtesy, and consequently the statute had run against the plaintiff. This proposition is distinct from that in relation to a presumption of a deed in pursuance of the contract, from lapse of time. The question is, whether the possession of a vendee of the ancestor is the possession of the heir. There should have been such seisin, as would have enabled the heirs to inherit before our revised statutes. (4 Kent, 30.) But I do not see how a mere possession under the contract to convey could be a disseisin of the vendor, or his heir. In England the vendee is considered a tenant at will; the lowest kind of estate, and which may be determined by demand or entry. (Doe v. Chamberlin, 5 M. & W. 14. 1 Sannd. R. 276, n. a, 6th ed. Do454 little v. Eddy, 7 Barb. 74, and cases there cited.) Though perhaps only for certain purposes. (1 Sugd. V. and P. 377, 276.) Here he has been considered by some judges quasi tenant at will, but seems, particularly after default, to have a mere license. (Wright v. Moore, 21 Wend. 230. Cooper v. Stower, 9 John. 331. Dolittle v. Eddy, supra, and cases there cited.) Possession of a tenant for a term of years is a sufficient seisin to support a tenancy by the curtesy. (DeGrey v. Richardson, 3 Atk. 469. Co. Litt. 15, a. Clancy's Rights of M. Wom. 182.) In equity, the interest of the vendor is considered personalty; and that of the vendee realty. (Seton v. Slade, 7 Ves. 274, and notes. Livingston v. Newkirk, 3 John. Ch. R. 312. Champion v. Brown, 6 Id. 398. Johnson v. Corbett, 11 Paige, 265. Edgerton v. Peckham, Id. 352.) And the husband takes an interest as tenant by the curtesy in money directed to be laid out in lands for the wife; he in all other respects being entitled as such. (Sweetapple v. Bindon, 2 Vernon, 536. Leigh & Dalzell on Eq. Conv. 62. 4 Kent, 30.) But this is an action of ejectment, where the legal title must prevail; and where that is considered in the vendor. (Seton v. Slade, supra.) The aftertaken wife or husband of vendor, it is said, and the heirs, devisees and grantees, with notice, &c. may be compelled to convey. (Dart on Vend. 462.) In this case, if there was a valid contract to convey, made in the lifetime of P. R. Kissam, Philip Brotherson and his wife could have been compelled to perform, to the extent of their interest, the vendee being in no default. Till then, the legal title remains. In Jackson v. Johnson, (5 Cowen, 74,) the possession of a vendee was held not to be adverse, until he received a deed. True, in that case the wife was grantee; and perhaps actual entry was not necessary. (Adair v. Lott, 3 Hill, 182.) But that does not affect the question of adverse possession. One in possession of land, under an executory contract, may hold adversely as against strangers. (La Frombois v. Jackson, 8 Cowen, 589. Mumford v. Whitney, 15 Wend. 381. Clapp v. Bromagham, 9 Cowen, 550.) But the possession of the vendee is not adverse to the vendor. (Jackson v. Johnson, supra. Briggs v. Prosser, 14 Wend. — 455 — 228. Jackson v. Camp, 1 Cowen, 605. Whitney v. Wright, supra.). After performance by the vendee, it seems, it may become so. (Briggs v. Prosser, supra.) But actual payment was not proved in this case. Without regarding any admissions of Jones, and supposing him to have retained the undisturbed possession, and leaving it to lapse of time merely, I think payment, after twenty years, may be presumed. And it seems the possession cannot be deemed adverse, until the vendee has performed, or is presumed to have performed. (Prosser v. Briggs, supra.) And twenty years, at least, were necessary after it became adverse, to defeat the legal owner. If there is no proof either way, I think in twenty years, a presumption of payment arises. (Matt. Pres. Ev. ch. 17. 1 Greenleaf Ev. § 37. 2 Id. 33, 528. 1 Cowen & Hill’s Notes, 307. Jackson v. Hotchkiss, 6 Cowen, 403. Jackson v. Sackett, 7 Wend. 94. Ang. on Limitations, 80.) Perhaps a shorter period raises the like presumption, when the contract is not under seal. But this seems questionable. (Id.) If the court could also presume a conveyance, made simultaneously with the payment, no presumption of adverse possession would be necessary. Perhaps a conveyance could be presumed at the expiration of twenty years, after payment; but I think not at the time payment was made, or is presumed to have been made. If there was a contract to purchase, and Jones admitted, within twenty years before suit, that a portion of the purchase money yet remained due, there could be no presumption of payment. Indeed, if he entered under a contract, and it was admitted that he had not performed, there was no adverse possession. If there was an adverse possession, it might be important to ascertain whether it commenced in the lifetime of P. B. Kissam, or during the minority of Mrs. Brotherson; or before his marriage. Cumulative or successive disabilities, would not aid the plaintiff. But if there was a tenancy by the curtesy, the statute would not run against the heirs, during its continuance. If there was a disseisin, and that took place before the death of P. B. Kissam, or before the marriage, there could be no such — 456 — tenancy. And in that case, if the adverse possession has continued, the plaintiff’s right of action, pretty clearly, is barred. [Fulton General Term, September 6, 1852. Willard, Hand, Cady and C. L. Allen, Justices.] But I think there should be a new trial on the first point. Willard, P. J. and C. L. Allen, J. concurred. Cady, J. dissented. New trial granted.