Jackson ex dem. Dunbar v. Todd

Spences, J. delivered the opinion of the court. Several points were made on the argument of.this cause; but, from the view I have taken of it, it will be-unnecessary to consider all of them. The title on which the plaintiff relies for a recovery consists, 1. Of an award in favour of William Thorn; 2. Of a deed from William Dunbar, the patentee, to Zebulon Macey, of the 12th. of March, 1784; and, S. Of a deed from Macey to Z. Platt, af the 23d of June, 1794. [265] The defendant having dissented from the award, with- ° _ in two years after the making thereof, and being then in the actual possession of the lot, or a part of it, as to him the award became inoperative, and the'lessors of the plaintiff must recover, by virtue of their title, independently of the award. Prima facie, a title has been made out, by the conveyance from Dunbar to Macey, by the deed from Macey to Platt, and by his deed to Thorn. The defence to this title is, that the deed from Dunbar to Macey was executed during the minority of Dunbar; and that after his attaining full age, he gave a deed to Brooks, dated the 12th of September, 1791. If the deed from Dunbar to Macey is voidable, can the defendant avail himself of the conveyance to Brooks to avoid it? The 3d section (Laws, vol. 2. sess. 20. c. 51. 266.) of the statute to settle disputes concerning the titles to lands, in the county of Onondaga, renders an award of the commissioners, upon every claim or controversy respecting any lands in the county of Onondaga, after the expiration of two years frpm the making thereof, binding arid conclusive against all persons, except such as, conceiving themselves aggrieved thereby, shall, within two years, dissent from the same, and give notice thereof to the commissioners, and file the same in the office of the clerk of the county of Onondaga. There exists no privity of interest or estate between Isaac Brooks and the defendant; for, although certain persons,' styling themselves executors of the last will of Brooks, have conveyed to Benjamin Isaacs, the lot in question, they have shown no authority derived from his will, to make that conveyance; and, therefore, although the dissent by the defendant would enure to the benefit of those from whom he derived his estate, the defendant cannot claim under Brooks’s title ; and it follows, that as the heirs of Brooks have not dissented from the award, it has become binding and conclusive against them. Nor can the defendant set up Brooks’s title [266] as an oustanding one ; for such title, to defeat a recotery 211 ejectment, must be a subsisting title. The title under Brooks is not a subsisting one, the award of the commissioners in favour of Thorn having nullified it. This award, though not to operate against the defendant, does operate against any pretended title under which he may seek shelter, by the very terms of the act. It was, therefore, unavailing for the defendant to give in evidence a deed which had ceased, by force of this act, to have effect. That deed could operate in this case only as an outstanding title in third persons, putting the statute out of question, and not as conferring a title on the defendant. In consequence of there being no dissent on the "part of those claiming under Brooks, the award, by the act, has become binding and conclusive against that title, which must now be received, as if it never existed. Had the defendant shown a privity between himself and Brooks, then he could have availed himself of Dunbar’s deed to Brooks; and the question, whether that deed avoided the deed to Macey, would then have arisen. • The deed to Brooks being out of the case, the next question is, whether there should not have been a dissent from Macey and Platt, notwithstanding the award was in .favour of their alienee. It would be the heighth of absurdity to give the act a construction which should require them to enter their dissent to an award confirmatory of their title. They could hot, within the purview of the act, have been- aggrieved by the award, for the commissioners in awarding Thorn to be seised of the lot, must have done so, because he had shown these conveyances ; and, consequently, the award was substantially in affirmance of their deeds. It is true, that in consequence of an adverse possession in the defendant, when Thorn ■received his deed from Platt, that deed has now become inoperative ; yet as the paper title was only in question before the commissioners, the award in favour of Thorn .enured to the benefit of those from whom he derived that paper title. [267] The defendant, then, ~an be regarded in no other light, than as a possessor without title~; and consequently, he cannot be admitted to set up the infancy of William Dunbar to defeat the deed, which is only voidable by him, or those who have derived an interest under him, which the defendant clearly has not. The court are, therefore, of opinion, that the plaintiff is entitled to judgment. Judgment for the plaintiff. Footnotes [¶] 3 Johns. Rep. 388. 395.