Jackson, ex rel. Hendricks v. Andrews

By the Court, Sutherland, J. The first inquiry in this case is as to the effect of the proceedings in chancery, instituted by the lessor of the plaintiff upon the rights of the parties. It is not pretended that Henry Franklin had any other title to these premises than such as he acquired by the deed from Abraham Franklin; and that deed was expressly adjudged and pronounced to have been void on the ground of fraud ; not incidentally and collaterally, but in a proceeding instituted in proper form and with proper parties, for the express purpose of testing its validity. Again; the conveyance from Henry Franklin to Cushman was made in November, 1810, while the suit in chancery against the grantor, calling in question his title to this identical property, was pending and in a course of active and persevering litigation. This conveyance, was void on the ground of a lis pendens. A lis pendens duly prosecuted is notice to a purchaser, so as to affect and bind his interest. The conveyance is so far a nullity, that it cannot avail the party against the title established by the pending suit. This subject is very elaborately considered by Chancellor Kent, in Murray v. Ballou, 1 Johns. Ch. R. 573, and Murray Lilburn, 2 id. 444, where ail the cases are reviewed, and the wisdom and policy of the rule are vindicated with great learning and ability. 1 Cas. in Ch. 150. 2 Ch. Cas. 115. 1 id. 301. Rep. Temp. Finch. 321. 1 Vernon, 286,318,459. 2 id. 216. 2P.Wms.482. 2 Atk. 174. 3 id. 392. Ambl. 676. 11 Ves. 194. 2 Ves. & Beame, 200. 2 Ball & Beat. 167. 2 Madd. Ch. 189, 190, 324,5. The purchase of land pending a suit concerning it, is champerty under the statute. 1 R. L, 162, This was expressly [157] adjudged in Jackson v. Ketchum, 8 Johns. R. 484, and in Mowre v. Weaver & Postern, Moore 655. The conveyance in such a case is absolutely void, even where the purchase is bona fide, although the party will not be subject to the penal consequences of the act. The conveyance from Abraham to Henry Franklin, and from Henry to Cushman, must therefore be considered as out of the case, so far as they are relied upon as establishing a paper title in the defendants. The next inquiry is whether the evidence of adverse possession offered by the defendants should have been received. The case states that the defendants offered to shew an adverse possession of more than 20 years, by proving that more than 20 years before the action brought, they were repectively in possession of the premises in question ; but disclaiming to have any right or pretence of right to such possession, other than that derived through the before mentioned deed from Abraham to Henry Franklin ; insisting that the said deed having been recorded as a deed bearing date in 1800, and prior to the docketing of the judgment in favor of the lessor, and the defendants having purchased on the faith of that record, they were entitled to protect themselves under it as a deed of that date. This evidence was objected to by the plaintiff’s counsel, and rejected by the judge. It is difficult to understand from this statement the precise nature of the proof of adverse possession offered by the defendants. There can be very little doubt that the deed from Abraham to Henry Franklin was actually given, and was intended to have borne date in 1808. It was acknowledged on the 29th March, and recorded the 21st day óf April of that year. I do not perceive how the defence of adverse possession can be affected by the circumstance, (admitting such to have been the fact,) that upon the record it appeared to have been given in 1800. It certainly was not recorded until April, 1808, and prior to that time the defendants could not have been misled by it ; and their subsequent entry cannot be carried by relation back to the period when they supposed that deed was given, for the purpose of aiding or establishing an adverse possession. So far as I understand the nature of the evidence offered, it was properly rejected. [158] If the possession of the defendants was not originally advergej then it had not become so in 1826, when Tibbits conveyed his interest in the premises to the lessor ; so that the lessor is entitled to recover the whole of the premises, and not a moiety, if he can recover at all. The case of Jackson, ex dem. Haines and others, v. Wood and others, 5 Johns. R. 278, sanctions the practice of uniting several defendants in ejectment in one suit, where the plaintiff’s title in relation to all is the same, although their possessions may be several, and not joint. The jury in that case found each defendant separately guilty, as to that part of the premises in his possession, and not guilty as to the other parts possessed by the other defendants; and it was held that the plaintiff was entitled to judgment against all the defendants severally, according to the verdict. The verdict in this case is in the same form. This practice was also recognized in Jackson v. Scoville, 5 Wendell, 96. The plaintiff must have judgment accordingly.