Jackson ex dem. Henderson v. Davenport

Spencer, Ch. J. delivered the opinion of the court. The lessor deduced a title to the premises in question under Alexander Kidd, a soldier, to whom the lot in controversy was granted, by virtue of a deed from Kidd to Isaac Bogart, dated the 12th of January, 1783, and sundry mesne conveyances down to the lessor. The defendant deduced a title from Kiddto Samuel Cobb, by a deed, dated the 25th of February, 1792, for the same lot; and by a deed from Cobb to the defendant, for 200 acres of the lot, being the premises in question, dated the 31st of January,1815. It has not been pretended that the defendant is concluded, by any relation subsisting between him, or Cornelius Da. venport, his father, and the lessor, or those under whom be claims, from showing that the plaintiff has no title to reco. ver; or that the defendant, or his grantor, Cobb, has the title to the premises. The deed from Kidd to Isaac Bogart conveys only a life estate. It is a grant, for the consideration of nine pounds, to Bogart, oIKidd's bounty or gratuity lands, under any resolution orlawsof thisstate, for his services, as a private in the troops of this state, in the service of the United Stales, in the regiment commanded by Colonel Gose Van Schaick, without any words of inheritance or perpetuity. It constitutes Henry I. Bogart and John Bogart, or either of them, his true andlawful attorneys and attorney, for him and in his name, to grant, bargain and convey the same (his bounty lands) to the said Isaac Bogart, his heirs and assigns, incase the same should be deemed necessary upon the grants having passed the seal of this state for the lands aforesaid. The power thus given was executed by a deed from Hen* ry I. Bogart to Isaac Bogart, for the lot in question, by a [300] release, dated the 9th of February, 1802, which was acknowledged the 10th of August, 1808, but has not been recorded. It is to be observed, that the deed from Kidd to Isaac Bogart has been deposited pursuant to the act of the 8th oí January,, 1794, but has not been recox-ded. There is no evidence tending to show that Cobb had any notice of the deed from Kidd to Isaac Bogart, when he purchased and took his deed. This action was commenced in Mayr 1818, and Isaac Bogart died in September of ihat year. The question then arises, whether, since the death oi Isaac Bogart, the lessor, pr Cobb, and those claiming under him* have the legal title to the premises 1 This depends on the power contained in Kidd's deed to Bogart. It has been insisted, on behalfof the plaintiff, that the power, in this case, is coupled with an interest, and was irrevocable, so that Kidd had no interest left in him to convey. On the part of the defendant it has been urged, that the power being to strangers who had no intei’est in the land, notwithstanding it was contained in the deed to the person in whose behalf it was to be executed, it was a naked power collateral to the land. The question, as to powers, arose, and was finally decided in the Court of Errors, in the case of Bergen and another v. Bennet, (1 Caines' Cases in Error, 1.) Mr. Justice Kent delivered the opinion of the Court. He observed, that “ a power simply collatexal and without interest, or a naked power, is where to a mere stranger authority is given of disposing of an intei'est in which he had not before, nor hath by the instrument creating the power, any estate whatsoever. But when power is given to a person who derives under the instrument creating the power, or otherwise, a present or futui-e interest in the land, it is then a power relating to the land.” “ The former power,” he says, “ is revocable by the grantor, at his pleasure, in his life-time, and is absolutely revoked by his death ; and the grantee of such a naked power, having no interest connected with the power, has, of course, no interest affected by the revocation.” In Hargrave & Butler's, note, 298, to book 3d, of the first part of Coke's Institutes, it is said, that those powers which are given to mere strangers, that is, to persons who were not owners of the land, at the execution of the [301] instrument creating the power, and who do not take under it, either a present or future estate or interest in the land, are said to be collateral to the land ; those which are reserved to the owner of the land, or to a person deriving under the instrument creating the power, either a present or future estate or interest in the land, are said to be relating to the land. These principles are believed to be undeniable propositions, perfectly well settled by adjudications, and admitted by every elementary writer on powers. Their application to the present case is obvious. Henry I. Bogart and J din Bogart, who, or either of them, were authorized to make (he conveyance to Isaac Bogart, were not owners of the laid, at the execution of the instrument creating the power, and did not take under it a present or future estate or inte.'est in the lands. They are, therefore, strangers, and, as to them, the power is collateral to the land, 1 can perceive no difference, in point of principle, whether the power is contained in the same instrument which gives a life estate to Isaac Bogert, or in a distinct instrument. The place where the power is found is not the test, but it is, that the same person who takes a present, or is to have a future interest in the land, is cloathed with authority by the owner of the estate, to make a further disposition of it. The attorneys in this case had no kind of interest in the particular estate conveyed, or in the further disposal of it. All their au hority was derived from the deed, and the only interest they had was in the execution of the power. It was matter of entire indifference to them who had the estate, and this is the true character o! a naked power. Had the deed, after giving the life estate, authorized Isaac Bogart to convey the premises in fee, for his own benefit, in consideration of the money received, that would have been ■a power coupled with an interest, irrevocable in its nature. But that is not the case. Although Isaac Bogart had an interest in having the power executed, H. & J. Bogart are strangers; and the interest that Isaac had in the power cannot be transferred to them, so as to give them an interest coupled with the power. As Kidd conveyed to Cobb, before the execution of the power, by the release to Isaac Bogart, the deed to Cobb revoked and superseded the [302] power. This, is my view of the case. My brethren who agree jn |jle j-eguJ^ consider this as an unexecuted authority $ that the reversionary interest, after the deed from Kidd to Bogart resided in the former ; that nothing restrained him from parting with that interest prior to the execution of the power by H, & J. Bogart, or one of them, and that, therefore, Cobb, being a bona fide purchaser, without notice, took the reversionary right of Kidd, and became seized of the legal estate, after the termination of Isaac Bogart1 s life estate in the premises. The plaintiff’s counsel have pressed upon the Coart the-case of Fisher v. Fields, (10 Johns. Rep. 495.) as deciding this cause. That case was decided on an appeal from the Court of Chancery, on the ground that the assignment to Birch passed the equitable interest of the soldur, and amounted to a declaration of trust ; that after the patent issued, the soldier took as a trustee for Birch; and Fields having afterwards purchased of the soldier, with knowledge of the transfer to Birch, was a purchaser chargeable with the trust, and was as much bound to execute the trust as the soldier himself. The doctrine of that case would prevail, if the cause now pending was in a court of equity, and it could be shown, as it has not been done in this case, that Cobb had any notice, when he purchased, of the conveyance to Isaac Bogart by Kidd, and that the defendant had, also, notice of that conveyance when he purchased. At law, the legal title must prevail; but, on the facts in this case, tested by the decision in Fisher v. Fields, even in a court of equity, the plaintiff could not prevail, without proving notice of the conveyance to Isaac Bogart, both to Cobb and the defendant. This suit was brought before the termination of the life estate ; and it appears by the plaintiff’s own showing, not only that his estate is ended, but that the defendant has the reversionary interest. The plaintiff, then, has no title to turn the defendant out of possession; but he has a title to the mesne profits and the costs of this suit, and must, therefore, have judgment, to enable him to recover them. This gives rise to the question of adverse possession $ and without going minutely into an examination of the facts, we are of the opinion that to render a possession [303] hostile and adverse to the true owner, it must be under co-lour or claim of title; that, in the present case, it was not satisfactorily shown that the possession was adverse, until a lease was taken of Cobb, which was within twenty years before the commencement of this action, and that, consequently, the plaintiff was not barred of his entry. There must be a judgment for the plaintiff with a perpetual stay of the writ of possession.