Preston, qui tam, &c. v. Hunt

[54] By the Court, Savage, Ch. J. The only question which it seems f0 me necessary to consider, is whether a person buying a title to land not in the actual occupancy of the vendor, is to the penalty in the statute, unless the land be held adversely. The clause in the statute on which the action is founded is as follows: “ That no person shall buy or sell, or by any means procure any pretended right or title, or make or take any promise to any lands, tenements, or hereditaments, unless such person who shall so bargain, sell, covenant, or promise the same, or his ancestors, or those by whom he claims the same, have been in possession of the same, or of the reversion or remainder thereof, or taken the rents and profits thereof, for the space of one whole year next before the said bargain, &c. upon pain, &c.” In all the cases which I have examined upon this statute, two things seem to be necessary to complete the offence, to wit: 1st. That the land shall be held adversely, and 2d. That the party prosecuted shall have knowledge of that fact. Thus, in Teele v. Fonda, 7 Johns R. 251, the court say the evidence is full and complete, that when the defendants purchased the lot, it was claimed and possessed under a title hostile to the Ogden title ; and all this was known to the defendant at the time of his purchase. And the case of Hassenfrats v. Kelly, 13 Johns. R. 466, seems to me decisive of this case. That was an action against the defendant for selling a lot of land; and Spencer, justice, says: “ To produce the consequences of a violation of a penal statute, it ought to appear expressly that there was a person in possession claiming to own the land. In the case of vendor of land, the statute does not make mention of knowledge of an adverse possession, but it does in the case of a purchaser; yet, in the case of the vendor, in the case last referred to, the court held that he would not incur the penalty by selling, unless he knew of the adverse possession. In this case there was no pretence of an adverse possession. When the agent went to survey the land, a short time before the conveyance was executed, the occupant disclaimed holding under any pretence of title. The intendment of law in such case is, that the possession is in subserviency to the true title. It is immaterial how long the possession may have con55 tinned; it was not hostile in its inception, nor did it become so at any subsequent period. Of course the defendant could have no knowledge of any adverse holding. A new trial is granted, costs to abide the event.