Webb v. Bindon

By the Court, Nelson, Ch. J. The statute 2 R. S. § 5, declares, that if any person shall take a conveyance of lands from any one not being in the possession thereof while they are the subject of controversy by suit in court, knowing the pendency of such suit, and that the grantor was not in possession of such lands, he shall upon conviction be deemed guilty of a misdemeanor. This is an alteration of the old statute, or at least of the construction put upon it, so far as it does not prohibit a conveyance by a person in possession of the premises. 8 Johns. R. 479. He may now convey, notwithstanding the suit pending. The 1 R. S. 739, § 147, provides that every grant of lands shall-be absolutely void, if at the time of the delivery thereof such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor. A deed in violation of the fifth section above referred to would be void at common law, the [100] act being in violation of a penal statute; and if the conveyance to the plaintiff comes within it, it cannot be upheld, ■though it should be conceded not to be within the general provision of $ 147. That section (147) however, being in pari materia, may aid us in the interpretation of the other ; and looking at both, 1 am inclined to think that § 5 does not ■apply where the person in possession does not hold adversely to the grantor. There is no reason, or principle of public policy, that ¡should prohibit the landlord, or those holding that relation to the occupant, from going into the market with the property, pending a suit to oust him. To extend to a disloyal tenant the benefit of the fifth section, would enable him to avail ■himself of his own wrong, and multiply its injurious effects upon his landlord. Indeed, the possession of the tenant is, for many purposes, that oí the landlord, and the case, therefore, does not come fully within the words of the statute. In this-case, though the defendants were not strictly tenants of Rawdon^ they were quasi tenants at will, and could not dispute his title. 1 Caines, 188. 10 Johns. R. 223, 292. The pendency of the suit by Rawdon against the defendants was proved by the record; in answer to which the plaintiff offered to show that it was in fact settled before the reconveyance. *The deed bears date 28th August, 1837, and the judgment against Rawdon was entered in October term -of that year. It may, I think, be doubted whether the proof •offered went to impeach the verity of the record within the meaning of the rule. Phil. Ev. 223. 10 Johns. R. 51. The. action may have been terminated by settlement of the parties previous to the reconveyance, consistent with the subsequent entry of the judgment. It is not, however, important to express an opinion on this point. [The verdict having been entered in a manner which, in the opinion of the court, would not give the plaintiff as great ■an interest as he was entitled to, the court, instead of rendering judgment for the plaintiff, ordered anew trial.]