Bradstreet v. Huntington. 5 P.

required alteration, it was the province of the legislature to alter it; but that it was the duty of judicial tribunals to administer it as they found it; that it was the province of the judge to decide questions of law, and that the jury were bound to respect such decision; that the question, whether or not it was competent for the defendant to set up the defence of adverse possession, under [* 414 ] the deed to Stephen Potter, was a question of law, and had been decided against the plaintiff; that what in law constitutes an adverse possession was also a question of law, and that it was for the jury to say, under the instructions which had already been given to them upon that point, whether such possession had been proved; that if they believed from the evidence that such a possession had been established, they were bound to find a verdict in favor of the defendant. Whereupon the said juror, after some hesitation, assented to the said verdict; and the said counsel for the said James Jackson did then and there, in behalf of the said James Jackson, except to the opinion of the said judge so declared to the said juror. By the direction of the court, the other juror who dissented was then called upon by the clerk to answer whether he agreed to the said verdict. But the said juror still persisted in his dissent, and stated that he entertained the same doubts which had been expressed by his fellow-juror. Whereupon the said judge directed the said jury to retire and again deliberate upon their verdict. And the said counsel for the said James Jackson did then and there, in behalf of the said James Jackson, except to the said last-mentioned direction of the said judge. And the jury thereupon retired, and after a short absence returned again into court with a verdict in favor of the said Henry Huntington. Whereupon the said jury were again polled, at the request of the counsel for the said James Jackson, and severally assented to the said verdict."

Mayer and Webster, for the plaintiff in error.

Storrs and Spencer, for the defendant.

*JOHNSON, J., delivered the opinion of the court.

[*430]

The principles of law involved in this cause are few and simple, and well established; and all the difficulties consist in so arranging the facts as to apply the principles correctly; or rather, to determine whether they have been correctly applied in the court below.

The plaintiff here was plaintiff there, and the action being ejectment, a remedy rigidly legal, it behoved her to make out a title of the same character.

Bradstreet v. Huntington. 5 P.

The title made out by the plaintiff consisted, 1. Of a series of documentary and other evidence, received without exception at the trial, which vested in Philip Schuyler an estate, which to all legal intendment was an absolute fee simple in him and his heirs; without trust, or reservation, or any evidence, intrinsic or extrinsic, of his holding it, or any part of it, in a fiduciary capacity.

2. John Bradstreet's will, dated 23d September, 1774; in which he first devises all his estate to his two daughters in common in fee; and then says "Notwithstanding the former devise for the benefit of my wife and daughters, I empower my executors to do all acts and execute all instruments which they may conceive to be requisite to the partition of my landed estate; and I devise the same to them as joint tenant, to be by them sold at such time and in such manner as they shall think most for the benefit of my daughters," &c.

3. The will of Martha, one of the daughters of John Bradstreet; under which Martha, the present plaintiff, acquires an interest of one sixth in John Bradstreet's estate, real and personal. Of this will Sir Charles Gould is appointed sole executor, with power to sell the lands in America, and apply the proceeds to the use of the plaintiff. 4. A deed from Philip Schuyler, dated May 16, 1794; by which, reciting that he is executor of John Bradstreet, he conveys the [* 431 ] plaintiff's interest in the subject in controversy, to * Agatha Evans, widow, the other daughter of John Bradstreet, and Edward Goold, naming him attorney of Sir Charles Gould, in trust to sell and dispose of it, and apply it according to the interest created by the wills of John and Martha Bradstreet.

This deed recites that Philip Schuyler was, at the time of making John Bradstreet's will, and from thence to the decease of John Bradstreet, seised in fee as tenant in common of and in two equal undivided fourth parts of and in all that parcel or certain tract of land, &c. "(being the same of which lot 97 is part and parcel) as to one equal undivided fourth part of which said tract of land the said Philip Schuyler was seised in trust for the said John Bradstreet."

This whole fourth part he conveys to Agatha Evans and Edward Goold, to the use of Agatha, as to two thirds in fee, and as to the remaining third to the use of Edward Goold, in trust to sell and apply the proceeds as before stated.

The above recital is the only evidence in the cause to show that the conveyance was anything but a mere bounty from Schuyler to these parties. And, notwithstanding that recital, it is perfectly clear that the case makes out the legal estate to have been in him; that the conveyance is a common law conveyance, and operates to convey a legal estate to Mrs. Evans and Goold; as to her two thirds

Bradstreet v. Huntington. 5 P.

clearly so, and as to the remaining third equally so, since the fee vested in Goold, and the interest of this plaintiff under that deed is a mere equity.

5. That equity was not turned into a common law right until 1804, when Goold, who survived Agatha Evans, by a deed in which he sets out all the facts on which this plaintiff's equity rested, and among them his character of attorney to Sir Charles Gould, and in compliance with a decree of the court of equity, invests her with the legal estate.

The defence set up is adverse possession in Potter, for the double purpose of avoiding Schuyler's deed, and to maintain a bar under the statute. And to maintain this defence, a deed is introduced executed four years prior to that of Schuyler, by which Agatha Evans, in her own right, and Edward Goold and another, professing to be attorney to Sir Charles Gould, executor of Martha Bradstreet the elder, convey the lot 97 to Stephen Potter, by words calculated to vest a legal fee simple, with a general warranty by Evans, and a special covenant against all claiming under John Bradstreet. But in the actual * state of the title at that time, in the eye [ * 432 ] of the common law, this deed conveyed nothing; there was no seisin, actual or constructive; no legal right to possession, nor any remedy except in equity for acquiring a legal estate to the parties who executed this deed.

The bill of exceptions shows that the evidence proved, in substance, that, under this deed and immediately after its execution, Potter entered; and from that time he and those claiming under him have held it as sole and exclusive owners against all the world.

It is not questioned that the plaintiff is within the savings of the statute under a continuing disability, unless the statute began to run as against Schuyler, and with equal reason as against Evans and Goold, Schuyler's grantees, in which case it continued to run so as

to bar her.

On this state of facts the parties below moved for instructions, and the court gave a charge, and the verdict was rendered for the defendant.

The questions which the court has to consider are:

1. Whether the plaintiff was entitled to the instruction she prayed.

2. Whether there was any error in the instruction as given. The prayer was a general one, that on the case made out after the whole evidence and argument were gone through, she was entitled to a verdict.

This of course implies that she had made out a good title; and that the defendant had made out no better title nor bar. The words

Bradstreet v. Huntington. 5 P.

of the prayer are, that the matters and things so given in evidence were conclusive to entitle her to a verdict. From which it follows, that if there were a flaw in her title, or that the facts made out a better title in the defendant, or a bar to the action under the statute, the plaintiff was not entitled to this instruction.

The charge admits the validity of the plaintiff's deduction of title, unless interrupted by the invalidity of Schuyler's deed, resulting from an adverse possession in Potter; in which case Edward Goold took nothing, and could transmit nothing to her by his conveyance in 1804. The defendant's case the court puts upon the possession under the statute alone. Now, although the court may have overlooked

something in the cause, yet if the consequence is that the [* 433] charge is more favorable to * the plaintiff than it should have been, that is no ground of complaint on her part. And, individually, I think there were some very important views of the case overlooked; views on which I doubt if Lord Coke would have hesitated a moment to decide the better title to be in Potter, independent of the bar.

1. Then I care not, for the purposes of my argument, whether the deed of 1790, to Potter, be regarded as the sole deed of Agatha Evans and her husband, or their joint deed with Edward Goold and Ludlow, attorneys to Sir Charles Gould, or of Sir Charles Gould, executed by his attorneys; either view leads to the same result. But the correct legal view leads more immediately to it; which is, that whether from the absence of proof of the power of attorney, or from an incapacity to delegate his authority, Sir Charles Gould's name must be stricken from the deed. It is the deed of Agatha Evans and husband, conveying, in language the most full and unequivocal, the whole land, and the whole fee in the land.

There is not a word in it that can give it the character of a conveyance in severalty, each conveying a distinct interest. And more emphatically so as to Evans, who warrants the whole, and covenants expressly against the plaintiff's title.

This, then, is, as to the plaintiff's interest, a conveyance by one having no title, to a third person, who enters under that conveyance. The fact of Potter's possession is distinctly affirmed, and whether by actual forcible ouster, or by a peaceable possession acquired by fraud, the law holds him to be a disseisor. The first alternative makes him so in terms, and the second is an old but well-settled doctrine. Such is the case in Rolle's Abridgment, of a husband and wife, joint tenants in fee; the husband commits treason, and the king seises the land. The king cannot be a disseisor; but the lord of whom it was held, upon a false suggestion that it is his proper

Bradstreet v. Huntington. 5 P.

escheat, is put in possession by the king. The lord is adjudged a disseisor as to the joint-tenancy of the wife, and the reason assigned is, "that he got possession of the freehold by misrepresentation, by injustice, and falsehood; that, therefore, the possession acquired by it must be looked upon as a possession acquired by violence, open and avowed." 1 Rolle's Abr. 658. So, where a guardian in chivalry, having, of course, the possession in him, assigns dower to

one as wife of the deceased * tenant, who is not wife, and [ *434 ] she enters, she is a disseisress; and the reason assigned is, that "her possession being acquired by an act of fraud and injustice, the possession acquired by it is tortious." Bro. Tit. Disseisin, 7; 1 Rolle's Abr. 662. So also of a possession delivered or permitted under void titles, as in the case of two infants joint tenants, and one, being under age, releases to the other, by which the other holds the whole; he is a disseisor, and the reason assigned is, "that the title is utterly void." He was not held to be in of the original estate, although a joint-tenant, but to have committed a disseisin against the clear state of positive fact, being considered as entering according to the release, not according to the state of actual title after the release was executed, which being void, left the title unaltered. Bro. Tit. Disseisin, 19. And the same law was ruled in another case of much the same nature, against the notoriety of an actual feoffment, where the invalidity of the title was combined with a breach of duty, as between guardian and ward.

It is also laid down, that if A executes to B a lease for the lands of C, and B enters, this is a disseisin by A, and the reason assigned is, that the demise to B is equivalent to a command to enter the land of C. Bro. Tit. Disseisin, 7; 1 Rolle's Abr. 662.

At the date of the deed to Potter, the legal title was in Schuyler, and he only could be legally disseised. It is not necessary to recur to authority to prove that a release to the disseisor, by the disseisee in fee, is as good a conveyance as can be executed, or that an absolute conveyance in fee, especially with words of release, to a disseisor, is a release to the disseisor or to his feoffee.

This last principle is expressly ruled in the case of Jackson and Smith, decided in the New York courts; 13 Johns. 406.

Here, then, we have a conveyance from Schuyler, the disseisee, to Agatha Evans, the disseisress, operating in favor of Potter, her grantee, which makes out a common law conveyance. It is seldom that a case in our time savors so much of the black letter, but the course of decisions in New York renders it unavoidable, and the whole course of this argument has been calculated to involve us in it.