Crowder v. Hopkins

The Chancellor. The question whether the deed from Hole to Torrey, of the 27th of June, 1797, is genuine does not properly arise in this case, as there is no charge in the complainant’s bill that the deed is a forgery. The only charge which, if proved, would entitle the complainant to equitable relief is that Torrey agreed to act as his agent, to recover the land from settlers who were holding it adversely, and that under pretence of getting Hole to execute a power of attorney to recover the land, he had obtained from him a conveyance of the premises. For if the decision of the case is to turn upon the question whether the defendants have established a paper title to the premises, the decree of the vice chancellor is unquestionably right. The recollection of witnesses as to the character of the handwriting of an obscure individual, who had very few business transactions, are very little to be relied on, after a lapse of the third of a century, in opposition to the certificate of the acknowledgment of the deed by the grantor in person. And I am satisfied that the objection to the certificate of acknowledgment was not well taken. Previous to the act of February, 1797, relative to the acknowledgment of deeds, it was not necessary that the certificate should state the fact that the officer knew the person who made the acknowledgment to be the grantor described in the deed, or that his identity was proved. (Bradstreet v. Clarke, 12 Wend. Rep. 673.) The act of January, 1794, relative to conveyances of military bounty lands, (3 Greenl. Laws, 45,) which required an actual acknowledgment by the grantor, prohibited the judge or master from taking the acknowledgment unless he knew or had satisfactory proof that the person making the acknowledgment was the same person described in the conveyance ; but it did not require that fact to be stated in the certificate. And in consequence of this defect in the act of 1794, the 5th section of the act of the 12th of February, 1798, was passed, prohibiting the recording of deeds of military bounty lands executed previous to the 1st of May preceding, when the act of February, 1797, went into effect, unless they were proved or acknowledged [189] in the manner directed by the last mentioned act. (1 R. L. of 1813, p. 216. Jackson v. Shepherd, 2 John. Rep. 77.) The deed in question, however, did not come within the operation of this section of the act of 1798, because it was executed after the 1st of May, 1797. And being executed and acknowledged according to the act of 1794, relative to conveyances of military bounty lands, and prior to the 1st of December, 1797, it was exempted from the operation of the act of February, 1797, by the supplementary act of the 23d of February, 1798, (3 Greenl. Laws, 328 ;) which last act in effect extended the time when the act of 1797 should take effect, until the 1st of December, instead of the 1st of May in that year. The deed to Torrey was therefore properly recorded, being acknowledged by the grantor according to the act of 1794, and his identity being also proved by the affidavit of one of the subscribing witnesses, taken before the master and endorsed upon the deed immediately below the certificate of acknowledgment and at the same time. Again ; upon the question whether Torrey was the owner of the premises previous to his conveyances to Hopkins, Hamilton, Taylor, Burns, Loop, Dixon and Treat, so far at least as relates to the legal title, the award of the commissioners was as conclusive against Hole as it was against the defendants who were then in possession, claiming under Hole’s previous deed to Ballard. In Jackson v. Griswold, (5 John. Rep. 140,) the supreme court decided that the act, under which this award was made, was constitutional and binding as an act of limitations in relation to disputed titles ; and that if there was no dissent filed within the time prescribed the award was conclusive. And a dissent was necessary to prevent the award from being a bar to a claim of title in any other person, although no person was in possession of the land when the award was made. (Jackson v. McKee, 8 John. Rep. 429. Jackson v. Swartwout, Idem, 490.) As between persons claiming the premises under Torrey, and others who claim title under Hole either through the Ballard deed or otherwise, the award is conclusive in favor of the title of Torrey. But if Hole [190] never gave the deed to Torrey, there is no privity between him and Torrey ; and the defendants who have derived title to the premises through the Ballard deed, as well as from Torrey, may set up the award to Torrey as a bar to the legal claim of Hole or his devisee, or may set up the validity of the Ballard deed as against them, notwithstanding the award. The deed to Ballard, and the several mesne conveyances under which Hamilton and Hopkins originally claimed title to the premises, were distinctly referred to in the answer of the occupants of the lot. It was not necessary, therefore, that those conveyances should have been made exhibits before the examiner, or that a notice of the intention to use them on the hearing should have been given. But if the Ballard deed was not duly proved or acknowledged, I think it was not admissible in evidence as an ancient deed. For it was cut off by the award in favor of Torrey. And the occupants of the land having taken title under Torrey, in 1817, their possessions had not been held under and in conformity to the deed to Ballard, for thirty years, within the spirit of the rule on that subject. (Jackson v. Blanshan, 3 John. 297.) From some of the declarations of Hole there is reason to suppose the deed to Ballard was genuine, and that he was conscious of having done wrong in conveying the property the second time, to the injury of those who were in possession under the Ballard deed. But it is not necessary for the occupants of the land to resort to the Ballard title for their protection in this case ; for I am satisfied the complainant has wholly failed in making out a case entitling him to any relief against them. None of the acts or declarations of Torrey which took place or were made after the conveyances to the occupants of the land, in 1817, can be received as evidence against his co-defendants ; either to show that he acted as the agent of Hole to obtain the land from the settlers, or that he was conscious of having defrauded him. And the part of the answer in which it is stated that Hole told Hopkins and Treat that he had sold and conveyed the land to Torrey, is responsive to the allegation in the bill that when Torrey [191] sold them the land they knew he had no title to the land, and had no right to dispose of it. It is therefore evidence in their favor. And it is also supported by the testimony of Barber, who swears that Hole said, while he was at Hopkins’ house in 1809 or 1810, that he had sold the lot to Torrey and that Torrey had a good title. Nor do I think there is any sufficient proof to destroy the positive answer of Torrey, directly responsive to the bill, denying that he assumed to act as the agent of Hole in the recovery of the land ; and stating that he purchased the land for the price of =6100, and that it was conveyed to him by Hole absolutely and unconditionally. The decree of the vice chancellor is therefore affirmed, with costs as to all the defendants. And the decree of affirmance is to be entered nunc pro tunc as of the time of the argument of the appeal.