Jacob ex dem. Paine v. Smead

By the Court. It is not designed to prove a conveyance from W. Smead. Grantees under a former Charter might surrender to the King, without deed, and may be bound by acceptance of, and acquiescence under a second Grant, without deed.- The receipt may be evidence of such acceptance and acquiescence. Several witnesses proved, that there was a general acceptance and acquiescence in the New-York Grant, and by W. Smead in particular. It did not appear that W. Smead, who is since dead, did, in his life-time, make claim to the lot in question, which was divided to the Chamberlain right under New-Hampshire. The defendant claims, as heir to W. Smead, and has taken possession since his death. It was conceded, that the defendant is son and heir to W-. Smead. No evidence was produced on the part of the defendant. Chipman, Ch. J. The right nowin question, as far as relates to the operation of the Charters, must be determined agreeably to the law then in force, which was the common law of England. The Governor of New-Hampshire, while this territory was under that jurisdiction, and after the transfer to New-York, the Governor of that province had a power to grant such lands, as were then in the right of the King. These grants were not made in the personal or even jurisdictional right of the Governors, but by royal authority, given for that purpose; and they are to be considered, in their construction and operation, as royal grants. The King was, in view of the law, the ultimate owner of all the lands within his dominions, and had the reversion in himself. An estate in fee, the highest right which a subject could have to lands, was said to be derived out of the King’s right, and to be subordinate to that right. Agreeably to this doctrine, a surrender might be made to the [58] King, of a former grant. On a surrender, the King was in of his former right, and might grant again as he pleased. The plaintiff, in this case relies, that the New-Hampshire Charter of the town of Windsor, was surrendered into the hands of the Governor of New-York for the Crown; and that the letters patent issued in consequence, by that Governor, acting for the Crown, and intended to operate by way of confirmation to the claimants under the former grant, were good and valid. The act itself, by which the surrender was made, is not produced, The proof of a surrender of the New-Hampshire Grant, arises from the power given to Stone, the agent, from the recital contained in the .letters patent of New-York, which we think is good ground of presumption, and, indeed, prima facie evidence of a surrender. And from the acceptance and long acquiescence of the New-Hampshire proprietors, under this grant, it should seem, that the acceptance and acquiescence alone, which must have involved almost the whole property of the land in town, would be construed a waiver of the former grant, and a confirmation of the latter. It may be further observed, the original Charter of New-Hampshire has not been produced, and it is agreed, that it was lodged in the office of the Secretary of the Province of New-York, previous to issuing these letters patent, and that it remained in that office. The defendant in this action stands in the place of his father, William Smead, who claimed the premises under the grant of New-Hampshire, was a proprietor of several rights, or shares, and was one of those who executed the power to Stone, to procure a confirmation from the Governor of New-York. It is in evidence, that W. Smead accepted from Stone, a title to lands in Windsor, to himself and vendees, in full for his claim under the former grants, in part, for the same lands which he formerly claimed, and in part for other lands, the benefit of which he enjoyed and left to his heirs; for it will be observed that under the New-York Grant, the whole property was vested in Stone, in trust, that he might convey to every one, according to his right, and that the division, which was made under the New-Hampshire title, was not then taken to have any legal efficacy, but served only for description. Had the question arisen between a New-York claimant and a claimant under New-Hampshire, who had disagreed to these proceedings, and refused any benefit under the second grant, it might have had another con [59] sideration ; at least, it would have stood in a more favourable light. The Governor of New-York, and the authority of that Province, were guilty of the highest oppression and injustice toward the New-Hampshire grantees. They held the titles derived through the Governor of New-Hampshire to be void. They were able to enforce this opinion by violent laws and by the arbitrary decisions of their Courts. In consequence of these measures, they extorted large sums of money from the New-Hampshire grantees and settlers, for what they called a confirmation. This was practised upon the proprietors of Windsor. It is insisted that the injustice of the demand ought to invalidate the New-York Grant. It is wholly a new doctrine, that the greatness, or, if you will, the enormity of the consideration given, should invalidate a grant. If it be not a legal reason, it is, certainly, a favourable argument for the grantees, in support of their grant. Verdict for the plaintiff.