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 individuals, 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 principle 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. 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. Gilbert v. Columbia Turnpike Company. 92,) and Striker v. Kelly, (7 Hill, 9.) See Williams v. Peyton, 4 Wheaton, 77; Jackson v. Shepard, 7 Cowen, 68; Atkins v. Kennan, 20 Wend. 241; Jackson v. Esly, 7 id. 48; People v. Mayor, &c. of New York, 2 Hill, 9; Matter of Mount Morris Square, id. 14; Kennedy v. Newman, 1 Sandford's Superior Court Rep. 187; Thatcher v. Powell, 6 Wheaton, 119. Cowen and Hill's notes to 1 Phil. Ev. 1289, et seq. Per Cowen J. in Waldron v. McComb, 1 Hill, 111, 114, 115. Per Bronson J. in Bloom v. Burdick, id. 130, 141, 142; Van Horne's lessee v. Dorrance, 2 Dallas, 316; Rex v. Manning, 1 Burrows, 377; Rex v. Mayor of Liverpool, 4 id. 2244. In Sharp v. Speir, cited supra, Bronson, J. remarks that "a corporation must show a grant, either in terms or by necessary implication, for all the powers which it attempts to exercise; and especially must this be done, when it claims the right, by taxing or otherwise, to divest individuals of their property without their consent. In Beaty v. Knowler, (4 Peters, 152,) which was the case of a corporation sale of lands for taxes, Mr. Justice McLean remarked, 'that a corporation is strictly limited to the exercise of those powers which are specially conferred upon it. The exercise of the corporate franchise, being restrictive of individual rights, cannot be extended beyond the letter and spirit of the act of incorporation.' And he subsequently adds: The power to impose a tax on real estate, and to sell it where there is a failure to pay the tax, is a high prerogative, and should never be exercised where the right is doubtful.' The justice of the remark is obvious. Every statute derogatory to the rights of property, or that takes away the estate of a citizen, ought to be construed strictly. It should never have an equitable construction." And again at p. 86, " every statute authority, in derogation of the common law, to divest the title of one and transfer it to another, must be strictly pursued, or the title will not pass. This is a mere naked power in the corporation, and its due execution is not to be made out by intendment; it must be proved. It is not a case for presuming that public officers have done their duty, but what they have in fact done must be shown. The recitals in the conveyance are not evidence against the owners of the property, but the fact recited must be established by proofs aliunde. As the statute has not made the conveyance prima facie evidence of the regularity of the proceedings, the fact that they were regular must be proved, and the onus rests on the purchaser. He must show, step by step, that every thing has been done which the statute makes essential to the due execution of the power. It matters not that it may be difficult for the purchaser to comply with such a rule. It is his business to collect and preserve all the facts and muniments upon which the validity of his title depends." Jackson v. Lunn. JACKSON, ex dem. GANSEVOORT and others, against LUNN. A tract of land was granted, by letters patent, to A. in 1735, which was surveyed and laid out into lots. In 1736, B executed leases for several lots to different persons, for lives, reserving rent, in which he asserted his claim to the whole tract; and exercised various acts of ownership, until his death, in 1752, and his heirs also gave leases of some of the lots, in 1767, and his title and that of his heirs, continued to be acknowledged by the tenants, and remained undisputed, until after the year 1783. In an action of ejectment brought by the heirs of B. against C., who had been in possession since 1772, it was held that a grant from the original patentees to B. was to be presumed; that entry, by him, into part, with a claim to the whole, was to he considered as an entry into the whole; and that the entry of C. was in subordination to the title of B. Patents and grants are in a variety of cases to be presumed even within the time of legal memory for the sake of quieting an ancient possession. Per Kent, J. The American revolution worked no forfeiture of previously vested rights in lands. Where a British subject died se sed of lands in this state, in 1752, leaving daughters in England, who married British subjects, and neither they, nor their wives, were American citizens; it was held that the husbands of the heiresses might be joined in a demise with their wives, in order to maintain an action of ejectment; and that even if the marriages were subsequent to the American revolution, such marriages with aliens would not impair the rights of the wives, nor prevent the full enjoyment of the property, according to the laws of the marriage state; especially, after the provision contained in the ninth article of the treaty of amity and commerce with Great Britain, of the 9th November, 1794. The court will not intend a disability. It lays with the party interested to show it. Per Kent, J. Though in case of a purchase, the law will recognize the title of an alien in lands, until office found; yet in case of a descent, the law takes no notice of an alien heir, on whom, therefore, the inheritance is not cast. But where the title to land in this state was acquired by a British subject, prior to the American revolution, it seems, that the right of such British subject to transmit the same, by descent, to an heir, in esse, at the time of the revolution, continued unaltered and unimpaired; the case of a revolution or division of an empire, being an exception to the general rule of law on this subject. The objection of alienism is not to be favored. THIS was an action of ejectment for lands in Montgomery county. The cause was tried, before Kent, J. at |