Thompson v. Carr

[515] The opinion of the court was delivered by RichaRdson, C. J. When the statute of November 28, 1778, entitled “ an act to confiscate the estates of sundry persons therein named,” was passed, this country was at war with Great Britain ; and it is recited in the preamble of the act, that John Wentworth and others, had, after the commencement of hostilities, gone over to the enemy, and to the utmost of their power, aided, abetted, and assisted the enemy. The right to confiscate the property of an enemy, during a war, is derived from, a state of war. The right originates in the principle of self preservation, and is in substance the same as the right of capture. There is no doubt that the said statute vested in the state all the property of John Wentworth. 6 Cranch, 286, Smith v. Maryland; 3 Dallas, 199, Ware v. Hylton ; 2 N. H. Rep. 34 ; 3 D. & E. 726 ; 1 H. Bl. 123 ; 2 Dallas, 402 and 415 ; 4 ditto, 14 ; 4 Cranch, 415; 1 Mass. Rep. 347 ; 4 Mason, 174. Was the deed, in this case, sufficient in law to pass the title of the state ? The general rule is, that when a deed is made by an agent, it must be in the name of the principal. 4 N. H. Rep. 102. But when an individual is authorized by law to convey the estate of another, without authority from the owner, the deed must be in his own name. Thus, when collectors of taxes sell lands for taxes, the conveyance is in their own name. The form of the deed is so prescribed by statute. 1 N. H. Laws, 567. When a sheriff sells a right in equity to redeem lands mortgaged, the conveyance, according to the form prescribed by the statute, must be in his own name. 1 N, H. Laws, 106. Executors, administrators and guardians, when authorized by the judge of probate to convey real estate, always make the deed in their own names. 3 N. 11. Rep. 30, [516] And it is not doubted that when the legislature has given authority to agents to sell and convey lands belonging to the state, the deeds have been usually made in the names of the agents, and that such conveyances are in law sufficient. 6 Pick. 414. And we are of opinion that the deed in this case is in due form to pass the title. But another question arises in this case. The statute of June 25, 1779, provided that trustees of the estates confiscated should be appointed by the judges of probate ; that the trustees should give bond to the judge of probate for the faithful performance of their respective trusts, and that the judges of probate should make such orders, from time to time, concerning the disposal of such forfeited estates, as might be most effectual to bring the net produce of said estates into the treasury as soon as might be. Nothing is said in the act of a license by the judge of probate to sell, nor is a power to sell given to the trustees in express terms. But the trustees did proceed to sell. This appears from the preamble of an act passed on the 1st March, 1783, in which it is recited u that the said trustees have, at various times, paid into the public treasury divers sums of the late paper currency raised by the sales of said estates.” And there is a provision in the act of 1779, in these words, “ all sales by virtue of this act shall be at public vendue.” The confiscation act appointed a committee in each county “ to enter into and take possession ” of all the confiscated estates ; and we have no doubt that the trustees, appointed under the act of 1779,were intended to be trustees to sell. A licence may, however, have been necessary. But it does not appear that the sale in this case was at public vendue, and the question is, whether it is essential to the validity of the demandant’s title that this should be shown ? When a party derives his title through a conveyance, made by a person claiming to act by authority, given either by the law,or by the owner of the land, there is a distinction to be observed between the cases where such [517] title is set up against the owner of the land thus conveyed, or those claiming under him, and the cases where it is set up against a mere stranger. When the title is set up against the owner or his asigns, it must be shown, that the 'authority, whether given by law or by the owner, was strictly pursued. But when the title is set up against a stranger, it is enough to shew an authority to convey and a conveyance made under it. Thus, where ⅜ guardian has sold the land of his ward under a licence from the judge of probate, when the title derived through the guardian’s sale is set up against a stranger to the ward’s title, it is enough to shew the li-cence of the judge of probate and a deed made under it. But when the title is set up against the ward or his heirs, ft must be shown that the sale was made in pursuance of the provisions of the statute, which authorizes a sale in such cases. The law is the same with respect to sales made by executors and administrators. So where a sale of land has been made by a collector of taxes, against one who shows no title, and who was not in possession when the land was sold, it is enough to show the collector’s warrant and deed. In all these cases it is absurd to compel a party to show the regularity of all the proceedings when contending with another, whose rights were in no way affected by the proceedings. This distinction is recognized in the case of Knox v. Jenks, 7 Mass. Rep. 488, and seems to us to be founded on sound reason and good sense, and we have no hesitation in adopting it. In this case, it does not appear that the rights of this tenant, or of any person under whom he claims, were in any way affected by the sale made by the trustee, under the act of 1779, and we think, that as against him, it was not necessary to show that the sale was at public vendue. [518] But it is objected that a licence from the judge of probate was not produced in this case, so that it does not appear that the trustee had authority to sell. It is true that there is in the case no direct evidence of a licence. But the sale was made nearly fifty years since, and neither the state, nor any person claiming under the state, appears at any time since the sale, to have made any objection to the proceedings, or to have made any claim to the land. And we are of opinion, that an acquiescence in the sale, on the part of the state, for so long a period affords a very reasonable ground to presume, as against one who shows no title derived from the state, that the sale was made by virtue of a lawful authority. But although a jury might well enough proceed upon such a presumption, and find that there was a licence, we are not at liberty to presume there was a licence, and make that presumption the foundation of our decision. This question must be settled by a jury. We think that the demandant cannot have judgment, until it shall appear in some way, that there was a licence.