Etheridge v. Cromwell

By the Court, Sutherland, J. In Hassenfrats, quitam, v. Kelly, 13 Johns. R. 466, it was held that a person who sells and conveys land without the knowledge that there is a subsisting adverse possession, is not liable to the penalty for selling a pretended title, under the 8th section of the act to prevent champerty and maintenance. 1 R. L. 173, § 8. Strictly speaking, perhaps, the decision in that case went no farther than that in order to create the offence contemplated by that section, it is indipensable that it should clearly appear that the lands were held adversely at the time of the conveyance. 633 Judge Spencer, however, who delivered the opinion of the court, expressed a very decided and unequivocal opinion that if the lands were held adversely, yet if the vendor could shew that he was ignorant of that fact, he would not be liable to the penalty, although his deed would be void and inoperative. He puts his opinion on the ground that it was the intention of the statute to punish persons for selling, pretended rights to lands for the purpose of maintenance, and when it is evident that such intention did not exist, he held there could be no offence ; and in support of his opinion he refers to the case of Partridge v. Strange & Croker, Plowden, 80, 88, in which the declaration, which was upon the same statute, was held defective for the want of an averment that the bargain and sale was made for maintenance. Hale, justice, remarked in that "case that the intent of the statute was, that a man should not demise or bargain his land to any for maintenance, except he have been in possession for a year, so that here, inasmuch as the plaintiff has not averred the bargain and lease to be made for maintenance, he has not shewn the case to be within the danger of the statute; for this was the point of the statute. The declaration in that case was demurred to ; the defence alleged was, that the defendants had made a lease for years of certain lands, of which they or any of their ancestors were not in possession, nor of the reversion or remainder thereof, nor took the rents or profits thereof by the space of one whole year next before the demise was made. Chief Justice Montague said, as the matter is here declared, it shall be intended that the defendants were in possession of the land, in respect of which it is shewn that they made the lease, and he that makes a lease .shall be intended in possession; and if it be so, though they'had been in possession but for an hour, the matter is out of the danr ger of the statute. Therefore it seems to me that here is no of-fence shewn to be done against the statute. They held the averment in the declaration to be merely that the defendants had not been in possession of the lands conveyed to them/or a year, admitting or not denying their actual possession when they made the lease; and such actual possession, though but for an hour, the court said was sufficient to authorize the de, 634 fendants to grant the lands. The same judge, in another part 0f [jjg 0p¡n¡ori; gayS) who is out of possession bargains, sells or makes any covenant or promise to part with the land after he shall have obtained possession of it, this shall be within the danger of the statute, whether he who so bargains or promises have a good and true right or title or not; and in this point, the statute has not altered the law ; it was made in affirmance of the common law, and all the statute has done is, it has added a greater penalty to that which was contrary to the common law before; for, by the common law, he who is out of possession cannot grant or bargain his land, and if he does, the grant is void. The statute has only added a greater penalty to that which was illegal before, and to avoid such bargains or promises, where a man is out of possession, is the only point which the statute here remedies. And another judge holds substantially the same language, and adds, where the party is out of possession, there is good reason to restrain such promises and bargains, for the law presumes they cannot be made without an intent of maintenance ; and Montague, Ch. J. says a pretended right or title is but in one case, and that is where one is in possession of lands and tenements, and another who is out of possession claims them or sues for them ; that is a pretended right or title, whether the party making such claim have the actual right or not. Co. Litt. 369, a, fully supports the doctrine laid down by the judges in Plowden. See also Comyn’s Dig. tit. Maintenance, A. 4. If a man who has no colour of right or title sells it to another, it will be within the statute, though the conveyance by him be void. Co. Litt. 369, a. Where the action is against the grantee of a pretended title, the jury must find that the grantee knew the title was pretended. 1 Leon. 166, 7. I am not prepared to say, that according to the English authorities, the grantor of a pretended title to land must know that it is held adversely, in order to subject him to the penalty of the statute; but the policy of the statute was founded upon a state of society which does not exist in this country, and it is perhaps indispensable that such a construction should be given to it here as is adapted to the peculiar state of our uncultivated lands. 4 Kent’s Comm. 635 438. 3 Cowen, 643, 4, 5. As it respects the actual owner lands, who conveyes them in good faith without knowing that they are occupied, it would be most oppressive and unjust to subject him to the penalties of the statute ; and the statute makes no discrimination between a conveyance made by one who supposes he has a right to convey, and a conveyance where the grantor knew he had no title. I am inclined therefore, to say that the penalty should not attach in any case, the grantor can shew that he was ignorant at the time of his conveyance that the lands were claimed orheld adversely. This construction is sanctioned by the case of Hassenfrats v. Kelly, already referred to, and was considered as the established rule in Lane v. Shears, 1 Wendell, 493. In that case I remark, in delivering the opinion of the court, “ That the defendant is to be presumed to have known the situation of the premises, and that they were occupied by the tenant of Lane. A person who sells and conveys land without the knowledge thatthere is a subsisting adverse possession is not liable to the penalty given by the 8th section of the act for selling a pretended title; but the seller of land is in the first instance to be presumed connusant of the situation of it.” 7 Johns. R. 351. 8 id. 337. 2 Caines, 183. 3 Johns. Cas. 59. If there had been any doubt as to the knowledge of the defendant of the adverse possession, it should have been left to the jury. Every presumption and intendment should be against the man who conveys land, knowing that he does not own it; but if he can satisfy the jury that he did not know it was held adversely, he does not incur the penalty of this statute. The charge of the judge, therefore, was correct. The jury, I think, upon the evidence, might properly have found against the defendant; but the matter of fact was properly submitted to them, and they have disposed of it. The repealing statute does not affect this suit. 3 R. S. 779. Motion for new trial denied.