Jackson ex rel. Swartwout v. Cole

Curia, per Sutherland, J. I think the plaintiff is entitled to recover. The deed from Cooper to the defendant, and his admissions to Cochran that the estate belonged to Mrs.'Cooper, and that if she had signed the deed with her husband, his title would have been good, were sufficient, prima fade, to establishthefact that Cooper was only tenant by the curtesy, and that the estate belonged to his wife, of whom Mrs. Swartwout, one of the lessors of the plaintiff, is the sole heir. The admissions of the defendant do not fall within the class of eases, in which it has been held that parol acknowledgments as to the title of real estate are inadmissible. I think it will be found, .in all those cases, either that a title had been previously made out, which it was.sought to divest by the parol admissions, contrary to the provisions of the statute of frauds, or it appeared from the acknowledgments themselves that there had been written conveyances, and that the admissions, therefore, were not the best evidence that existed in the case. Thus, in Jackson v. Vosburgh, (7 John. 186,) after the .plaintiff had established his title, the defendant offered to-prove a parol ’disclaimer, by the lessors of the plaintiff, of any right to the premises. So in Jackson v. Kisselbrack, (10 John. 336,) the defendant claimed title under an agreement between him and the lessor of the plaintiff, which was held to amount to a lease-or present demise. He also proved the payment Of rent. The plaintiff then offered to show that the defendant had disclaimed holding under him, :and had expressly denied his title. The Court say, if an interest passed to the defendant by the agreement, no subsequent disclaimer by parol can abrogate, it; for a freehold interest -can not he divested by words in pais. In Brant v. Livermore, (10 John. 358.) after-the lessors of the plaintiff had established their title to the premises in question, the defendant offered to show, that two of the lessors, since the commencement of the suit, had disclaimed all interest or ownership in the land. The Court say parol evidence of a disclaimer to a title to real property, otherwise valid, is inadmissible. So in Jackson v. Cary, (16 — 594 — John. 302,) the defendant had established a clear legal title; and it was attempted on the part of the plaintiff'to show that she had repeatedly admitted that she had onlj a life estate; and that the grantor of the plaintiff had a right to convey the fee subject to her life estate. Ch. J. Spencer says, the parol declarations made by the defendant avail nothing; for, though parol declarations of tenancy have , been- received, with certain qualifications, parol proof has never yet been admitted to destroy or take away a title. In Jackson v. Shearman, (6 John. 19,) it appeared from parol admissions that there had been a written conveyance ; and the Court excluded the parol proof, saying that the extent of the title transferred, &c. rested upon higher evidence than upon parol proof of acknowledgment by the party. It rested upon the written assignment of the lease. But where the party in possession has not established a legal title, his declarations, and the declarations of those under whom he claims, as to the nature and extent of their interest, or as to the right of the plaintiffs, have repeatedly been received in evidence. Thus, in Jackson v. Bard, (4 John. 230,) declarations of a party under whom the defendant claimed, showing a distrust of his own right, and an admission of the title of the plaintiff, were held admissible. So also in Jackson v. Belknap, (12 John. 96,) and in Jackson v. M’Vey, (18 John. 330,) the defendant was allowed to give evidence of the declarations of one of the lessors, to show under what title he held. But independently of the admissions of the defendant, the evidence of title in the lessors of the plaintiff was, prima facie, sufficient. That the premises in question were once the property of David Golden, appears to me to be admitted by the course of the defence upon the trial. Before the plaintiffs had attempted to connect themselves with David Golden, or to show that he was the owner of the property, and the source of their title, the defendant introduced the act of October 22d, 1779, by which the land and real estate of David Golden were declared to be forfeited to, and vested in the people of this state. This evidence had neither force nor pertinency, unless the premises in question were a part of the lands so forfeited. It proceeded upon the admission that the plaintiff had made out a title, prima facie', and was — 595 — intended to show a title out of the plaintiff, and in the people of the state. To repel this evidence, the plaintiff read the act of April 21, 1787, for vesting the estate of David Golden, not already sold, in Cadwallader Golden, in trust for the children of David Golden, of whom Mrs. Cooper was one. The act refers to a certain location or enumeration of the lands of David Golden, made by Cadwallader Golden, on the 1st of August, 1786, and delivered to the commissioners of forfeitures of the western district; and directs them to be appraised by such appraisers as the commissioners should appoint, and the appraised value to be paid, either to the commissioners or to the treasurer of the state for the time being: and certain maps and papers which were in the possession of David Golden at the time of his death, and which belonged to the office of the surveyor general, were to be procured, and delivered by Cadwallader Golden to the surveyor general, &c. before the act could take effect. As against the state, the location thus referred to and adopted by the act, would be conclusive evidence that the lands mentioned were the lands which belonged to David Golden. It was those lands that were to be appraised and paid for. The location is spoken of in the act as having been delivered to the commissioners of forfeitures. The exemplification of the copy of the certificate of the appraisers was competent evidence; and it established the fact that the premises in question were included in the location delivered to the commissioners by Cadwallader Golden of the lands of David; that they had been appraised pursuant to the statute, and the appraised value paid into the treasury of the state. It was objected to this document, that it was but the copy of a copy. It however appears from the certificate of G. Barker, the treasurer, endorsed on the document, that the original certificate had been delivered to Cadwallader Golden, and it was shown by Mr. Morse that they were not to be found among the papers of Mr. Golden. This was sufficient to authorize the introduction of secondary evidence. But although this certificate is styled a copy, it may well be considered an original for certain purposes. ■ It was the — 596 — evidence furnished by the commissioners of forfeitures to tfog treasurer, as to what lands of David Golden were in-eluded in the location mentioned in the act, and of their having been appraised pursuant to the act, in order that he might know what amount to receive from the trustees. The treasurer considered it as affording competent evidence upon those points, as his voucher or authority for receiving payment pursuant to the -statute. He accordingly endorsed upon it all that he did under it; the amount received; that he gave a receipt for it to Mr. Golden; but that he gave no deed or conveyance, Mr. Golden resting his title upon the certificate of the appraisers, and upon his receipt for the money; and put it on file in the office. As against the state, it is certainly to be considered an original document; and as verifying all that is contained in.it. So far as the treasurer’s certificate is concerned, it is original; and proves the payment of the appraised value of the land to the state, from which a previous compliance on the part of the trustee, with all the other requirements .of the act, is necessarily to be inferred. In Jackson v. Belknap, (12 John. 96,) .the lessor claimed title under a deed from -the surveyor general, which was given under, and pursuant to the provisions of an act.of the legislature, authorizing the surveyor general to sell such lands of one Weatherhead as one Cockburn should discover to have become forfeited by the attainder , of Weatherhead ; and which had not been previously discovered. This act, and the deed from the surveyor general, were held -to afford prima facie evidence that the lands mentioned in the deed were lands discovered by .Cockburn, and which had been -forfeited by the attainder of Weatherhead. The Court say, the surveyor general was a public officer executing a special trust reposed in him by the áct. He was only authorized to sell such lands as Cockburn should discover to him to have become forfeited by the attainder of Weatherhead. -It is to be presumed, therefore, that due inquiry was made -by him; and the title-given, in pursuance thereof, is to be received, in the first instance, as given conformably to the requisites of the act. So in this case, the fact that the officers of government, whose duty — 597 — it was to see the provisions of the act of 1787 carried into effect, and complied with on the part of the trustee, have proceeded as they could not, consistently with their duty have done, unless the trustee had performed whatever was incumbent on him to do, is prima facie evidence of performance on his part. The act of the 27th of January, 1789, passed for the relief of Cadwallader Golden, assumes, and takes it for granted, that he had complied substantially with the act of 1787. I am therefore of opinion that it. was sufficiently shown, that the premises in question were included in the location delivered by Cadwallader Coldeu to the commissioners, as mentioned in the act; that the title of David Golden to the lands was recognized by the act; and that it was therefore unnecessary for the plaintiff to give fiuther evidence on that point; and that a compliance on the part of the trustee with the conditions of the act, was, prima facie, established. But it is said, if the provisions of the act of 1787 were complied with, then the legal estate in the lands of David Golden, mentioned in the act, vested in Cadwallader Golden, and is not shown to have been transferred to the heirs of David. Whether the trust created by the act of 1787, was executed in the children of David Coidea by the statute of uses, or not, I do not deem it material to decide ; for, admitting that it was not, I am clearly of opinion that a conveyance from the trustee to the cestuy que trust, is under the circumstances of this case, to be presumed, if such conveyance was necessary to vest the legal estate in them. The children of David Golden were, by the very terms of the act, the individuals intended to be benefited by it. The lands of David were declared to be vested in Cadxoallader in trust for them. The power given to the trustee to sell or mortgage a portion, if necessary, in order to pay the appraised value to the state, was a power given for their benefit. If the trustee advanced it, he was authorized to sell or mortgage for his indemnity. There is no evidence that the money paid by the trustee to the treasurer was his own money, and not money raised and advanced by the — 598 — heirs. But if such be the presumption of law, then it is fairly to be intended, after this lapse of time, either that it was subsequently repaid by the heirs, or that the trustee exercised the power given to him by the act; and sold enough of the estate to reimburse all his advances. If so, then the purpose for which the legal estate was vested in him was accomplished; and it became his duty to convey it to the heirs; and the law will presume that he did his duty. (4 T. R.682. Cowp. 46. 3 Burr. 1901. Doug. 721. 11 John. 456.) This presumption derives confirmation from the fact, as testified to by Morse, that many portions of the land of David Golden, mentioned in the location and appraisement, had been held for upwards of thirty years under his heirs ; and also from the circumstance, that tht defendant himself, as early as 1798, took a conveyance foi the premises in question from one of the daughters of David Golden, and the husbands of two others. Indeed, it may be questionable whether this is not such a recognition of the legal title of the heirs as to preclude the defendant from denying that it passed from the trustee to" the cestuy que trust. Holding as I do, that the act of 1787 recognizes the lands, mentioned in the location of Cadwallader Golden, as the lands of David Golden, to be appraised and paid for; and that the proceedings under that act sufficiently identify them, and show the premises in question to be a portion of them, it becomes unnecessary to trace the title of David Golden farther back. All the. testimony, therefore, in relation to the will of Lieut. Gov. Golden, and the partition and holding in conformity to it, becomes immaterial. I am therefore of opinion that the plaintiff is entitled to judgment for one undivided fourth part of the premises in question. New trial denied.