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Jackson v. Brinckerhoff.

was proper, and that there ought to be judgment for the plaintiff.

KENT, J.. A motion was made, on the part of the defendant, for a new trial, on two grounds:

1st. That the deeds to Talman were void, in respect to him, by reason of an adverse possession at the time.

2d. That they enure, however, by way of extinguishment, and in favor of the defendant in possession.

1. There is no doubt but that by the common law, (Co. Litt. 214. a; Plowd. 88,) a conveyance to a third person, of lands held adversely at the time, was void, as an act of maintenance. Before a person could convey *lands (*105] in the adverse possession of another, he was under the necessity of reducing his right into possession by suit. This rule of the common law has never been altered. It is the law still, and, consequently, the deeds to Talman transferred no right to him, as the defendant was, at the time, in possession, claiming the lands as his own. The right of the grantors was reduced to a mere right of entry or an action.

2. The second question is, whether, in consequence of those conveyances, the right of Smith and Ellison, and their wives, or either of them, was extinguished for the benefit of the defendant.

I am satisfied, upon a consideration of the question, that no such conclusion results. It would be a conclusion rigorous and highly inconvenient with us, considering the facility with which real property circulates, and the distance at which it is often placed from the owner. This was a bona fide sale on the part of the heirs. It was not a sale of a pretended title, as a matter of speculation, but of a valid right. If the position contended for by the defendant was correct, there would have been no need of the statute punishment for selling a pretended title, which inflicts on the seller a forfeiture of the value of the lands sold. This doctrine would have been equally effectual, by forfeiting the land to the possessor, instead of a common informer. I am not for extending the punishment contained in the act against buying or selling Vol. III.

18

Jackson y. Brinckerhoff.

pretended titles, beyond its express provisions. Although, in judgment of law, the possession of land may be notice to the owner, yet as a matter of fact, it is very probable, considering how thinly scattered the settlements are in a great part of the country, that lands may be sold by the true owner, unconscious of any adverse possession. In the case of Fitzherbert v. Fitzherbert, (Cro. Car. 484,) one point moved was, that if A. after a disseisin, and not knowing of it, levy

a fine to a stranger, whether that fine would bar his (*106] right, and enure to the benefit of the disseisor, accor

ding to the doctrine in Buckler's Case. (2 Co. 56. a.) The court gave no opinion, but two of the judges, feeling the mischievous consequence of the doctrine, agreed that the fine should not enure to the benefit of the disseisor, but to the use of the conusor himself; for otherwise, a disseisin being secret, may be the cause of disinherison of any one who intends to levy a fine for his own benefit. The mischiefs apprehended at that time in England would, if the defendant's doctrine be good, be felt here with increased force, owing to the peculiar circumstances of our country which I have suggested. It would become a serious check upon the necessary transfer of real property, or would lead to great fraud and injustice. I am clearly, therefore, of opinion, that the defendant ought to take nothing by his motion.

LIVINGSTON, J. and LEWIS, Ch. J. were of the same opinion.

THOMPSON, J. not having heard the argument of the cause, gave no opinion.

Motion denied.(a)(b)(0)

(a) [Old note ) In Williams v. Jackson, ex dem. Tibbets and others, in the court of errors, (5 Johns. Rep. 300,) the decision in the above cause was recognized and sanctioned.

(6) See auth. cited supra, 103, n. (a),

(c) The doctrine that parties and privies alone can take advantage of an estoppel seems to be recognized without contradiction. (Lansing v. Montgomery, 2 Johnson, 382. Wood v. Jackson, 8 Wendell, 9. Miles v. Miles, 8 Watts & Sergeant, 135. Braintree v. Hingham, 17 Massachusetts, 432. Woreester v. Green, 2 Pickering, 425. Sanger v. Felton, 1 Rawle, 141. Gilbert v. Columbia Turnpike Company.

*Gilbert against The COLUMBIA TURNPIKE [*107]

COMPANY.

Where an inquisition taken under the second section of the act, amending

the act to establish the Columbia Turnpike Company, passed March 28, , 1800, (sess. 23,) omitted to state a disagreement between the owner of the

lands mentioned, and the company, and that the judge who appointed the

commissioners was not interested, &c., it was held defective and quashed. Where a special power is granted by statute affecting the property of indi

viduals, it must be strictly pursued ; and it must appear on the face of the proceedings, that the directions of the statute have been strictly observed.

This was an application by E. Gilbert, to set aside an inquisition found by three commissioners appointed under the 2d section of the act, amending the act establishing the Columbia Turnpike Company, passed 28th March, 1800. It is enacted by that section, that in case of disagreement between the company, and any owners of lands, over which the turnpike may be carried, it shall be lawful for the president and directors to apply to one of the judges or assistant justices of the court of common pleas, for the county of Columbia, not interested in said road, who is required to appoint, in writing, three commissioners, being freeholders of the county,

Griggs v. Smith, 7 Halsted, 22. Bolling v. Mayer, 3 Randolph, 563. Langston v. McKinney, 2 Murphy, 369.) And although, as a general rule, parties and privies are estopped by recitals contained in a deed ; (Jackson v. Parkhurst, 9 Wendell, 209 : Stewart v. Butler, 2 Serg. & Rawle, 381 ; Crane v. Morris, 6 Peters, 598; Carver v. Jackson, 4 id. 1; 1 U. S. Dig. Suppt. tit. Estoppel, II. ; 2 U. S. Dig. same tit. I, II. ;) yet where it appears in that which would otherwise work the estoppel, that the act or deed is void, the party is not estopped from showing the truth. (Sinclair v. Jackson, 8 Cowen, 543.) The principal case illustrates this doctrine, and upon the same prinoiple a warranty contained in a deed void for champerty, is no estoppel to the heirs of the grantor. (Kercheval v. Triplett, 1 A K. Marshall, 493.) The whole doctrine of estoppels is elegantly and elaborately considered in the notes to Trevivian v. Lawrence, 2 Smith's Leading Cas. Hare & Wallace's ed. 487 et seq., and 511 et seq., and the authorities there cited.)

Gilbert v. Columbia Turnpike Company.

and who shall not be inhabitants of any of the towns through which the said road shall pass, which commissioners shall name a day for meeting on the said lands to perform the duty required of them, and also to give notice to the owners of their appointment, and of the day of such meeting, being at least four days from the time of giving such notice, &c. and that each of the said commissioners, before he proceed to execute the said trust, shall take an oath prescribed by the said act, and shall then assess the damages, and make an inquisition, &c.

The proceedings in this case were brought before the court by certiorari, and the inquisition taken before the three commissioners, recited that John Tryon, one of the judges of the court of common pleas had, by writing, under his hand, pursuant to the said act, appointed three commissioners for the purposes specified in the act; that they were freeholders of the said county ; that they had appointed a day of meeting on the lands in question ; that notice of such

meeting was given to the owners, at least four days [*108] before such meeting ; that they *had taken the oath,

as prescribed in the act, and viewed the premises, and thereupon they proceeded to make the assessment and the inquisition above mentioned. But it did not appear, from any part of the proceedings, that there was any disagreement between the company and the owners of the lands mentioned, as to the damages sustained; or that the judge, who appointed the commissioners, was not interested in the road; or that the commissioners, so appointed, were not inhabitants of any of the towns through which the road passed; or that the commissioners gave notice in writing to the owners, of the time and place of meeting to assess the damages.

On these objections, amongst others, it was moved to quash the inquisition.

Champlin and Van Vechten, for the plaintiff.
Spencer, contra.
Per Curiam. This is the case of a special power granted

Gilbert v. Columbia Turnpike Company.

by statute, and affecting the property of individuals, which ought to be strictly pursued, and appear to be pursued, on the face of the proceedings. (4 Burr. 2244. Cowp. 26. 1 Burr. 377. 7 Term Rep. 363.) This is an established rule, and it is important that it should be maintained ; especially, in cases which so materially interfere with private rights. It does not appear that any disagreement existed between the parties, or, that in consequence of any disagreement, the company applied to a judge, both of which were requisite, to authorize the appointment of commissioners. The disagreement and consequent application, were the foundation of the whole proceedings, and without them the judge could have no jurisdiction in the case. As they do not appear, we are not to intend they existed. The judge, in the case before us, is required by the act, to have no interest in the road; and it is also required, that the *commis- [*109] sioners shall not be inhabitants of any of the towns through which the road shall pass. Neither of these points, which are essential to an impartial result, appear to have been complied with, and both are indispensable. A notice to the owners, it is true, is alleged to have been given, but it is not stated to have been in writing. A notice in legal proceedings, means a written notice, and we think the act itself, in this instance, contemplates such a notice. In certain cases, it directs the notice to be left at the dwellinghouse of the party. This must intend a written notice.

On these grounds, without determining the other objections, we are clearly of opinion that the inquisition ought to be set aside.

Motion granted.(a)

(a) In Rer v. Croke, (1 Cowper, 29,) Lord Mansfield says; “This is a special authority delegated by act of parliament to particular persons, to take away a man's property and estate against his will, therefore it must be strictly pursued, and must appear to be so upon the face of the order.” In Ronkendorf v. Taylor's lessees, (4 Peters, 359,) Mr. Justice M'Lean observes that," to divest an individual of his property, every substantial requisite of the law must be shown to have been complied with.” This point was very fully considered in Sharp v. Speir, (4 Hill, 76.); Sharp v. Johnson, (id.

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