« ForrigeFortsett »
be presumed within the twenty years.” Senator ground the reversal was there put, but inasmuch as Maison in a long and elaborate opinion reviews all the supreme court were reversed, he himself has no the cases, and concludes that possession for less than compunctions about "going back" on the doctrine twenty years had never been held a bar, except in overruled. On a closer examination we do not see three cases, namely: Ogden, Van Corlear and Gard- that his doctrine differs from that of the court above. ner. He lays down the rule “ that where the bound- The doctrine of "oral conveyance" seems to have aries in the deed are clear and unambiguous, and the been “laid,” perhaps stunned, by Judge Cowen's land thereby described can be easily, and without tremendous and unanswerable onslaught, until 1853, doubt or conjecture, ascertained, no acquiescence or when it “walked " again in Clark v. Baird, 9 N. Y. recognition, however unequivocal or often repeated, 183. This case decided, that, where a grantor at the can have the effect of depriving the party of his pos- time of the execution of the deed put the purchaser session of land, unless that acquiescence be continued in possession, and pointed out the boundaries, but the in for at least twenty years." Ile continues: “When boundaries so pointed out embraced land not included lands have been located, and such location acquiesced in the deed, occupation with the consent of the in for any time less than twenty years, either with or grantor for a less period than that required by statute without agreement, and during the continuance of to bar a right of entry gave the purchaser no title to such acquiescence, with the knowledge and assent the lands not covered by the deed. Judge Cowen's of the party, but without objection, buildings are doctrine is expressly sustained. erected and improvements made on the land thus Down to this time the conclusiveness of acquiespossessed, the owner of the fee will, nevertheless, at cence had been based upon the notion that it was law, be entitled to recover his land, but the party evidence of a parol agreement establishing the line. building or improving is not remediless; full and per- But this idea was exploded, in 1857, in Baldwin v. fect relief and protection is afforded him in chancery,” | Brown, 16 N. Y. 359, which put the doctrine on the namely, by a perpetual injunction against the action true ground, namely, that the acquiescence is concluat law. A new trial was granted with but one dis- sive evidence that the location is correct. It became senting voice.
material to decide this in answer to the argument that Intermediate 6th Wendell and 16th Wendell, the where the location was erroneous no bar could be case of McCormick v. Barnum, 10 Wend. 104, was inferred, because an agreement founded on a mutual decided in 1833. Here it was held that an owner of mistake of facts is not obligatory. But the remark land was bound by a division line, recognized by his that "there may be cases in which an express agreesurveyor as correct, where the owner has given deeds ment recognizing an erroneous boundary will conin conformity to a map and field book made by the clude a party; as where the other party, acting upon surveyor, and no eflicient attempt is made for twenty- the faith of such agreement, has made expensive two years to correct the line. Also, Kipp v. Norton, improvements, the benefit of which will be lost to 12 Wend. 127, in 1834, in which mere acquiescence him if the line is disturbed,” seems obiter. Acquiesfor five years was held inconclusive. Also, Dibble v. cence of more than forty years was shown in this case, Rogers, 13 Wend. 536, in 1835, in which the court held and the court say: “The plaintiff is precluded, on an acquiescence of twenty years conclusive.
principles of public policy, from setting up or insisting We next run against Clark v. Iethey, 19 Wend. upon a line in opposition to one that has been steadily 320, A. D. 1838. This case decided that where, in a adhered to, upon both sides, for more than forty years." description in a deed, course,
distance and monument Judge Cowen's doctrine was also approved in Terry are given, the premises must be located according to v. Chandler, 16 N. Y. 358, A. D. 1857. the deed, and all parol evidence of the intent, acts In Reed v. Farr, 35 N. Y. 113, A. D. 1866, which and declarations of the parties, going to establish a was a case of practical location and acquiescence for different location, is inadmissible as contradicting or more than twenty years, the case of Balduin v. Brown varying the deed, unless a possession be shown under was followed and approved, and its reasoning adopted. claim of title for such a length of time as will bar In the same year the question was reviewed in a a recovery in an action of ejectment. If, however, learned and exhaustive opinion, in Hubbell v. McCuldoubt or uncertainty exist, owing to the vagueness or loch, 47 Barb. 287. The plaintiff alone, more than obscurity of the description, or the decay or destruc- twenty years before, ran an erroneous line through tion of the monument, such evidence is admissible in woods, on uncultivated and unimproved lands, having aid of the deed. An actual location by agreement dif- previously been told by the defendant that the deferent from the deed will be obligatory. Judge Cowen fendant would abide by the line as he should find it, says the defense of title by acquiescence for less than and having subsequently described it as run to the the statutory period is in the face of the statute of defendant, but the defendant not having assented to frauds, and also contravenes the doctrine of parol | it, and it not being fixed or adopted. There being no evidence. It would seem at first sight that Judge adverse holding proved, this was held not to amount Cowen does not exactly know what to do with to a practical location, because there was no original Adams and Rockwell, nor fully understand on what I agreement of minds, and no subsequent acquiescence except silence. The court say: “There has been in the office until 1831. He reported the decisions the early cases a good deal of confounding of posses-during that period in seven volumes, including in the sions that began adversely, with this new method of first volume the decisions from 1796 to 1799. He getting round the statute of frauds, now called “prac- was succeeded by James S. Green, who reported in tical location;' but it is time that possession begun three volumes the cases from the November term, adversely, and possessions claimed to have begun 1831, to the end of the November term, 1836. under practical location, if there is any difference, With the February term, 1837, Josiah Harrison should be in some way distinguished.” The court began the duties of law reporter, and reported the find the origin of “practical location" in an acquies- cases to the end of the September term, 1842, in four cence between the parties in a line known and un- volumes -- the last being very thin, and containing derstood by them, of such a length of time as to be an appendix of an alphabetical table of all cases identical with “time immemorial,” or “time out of reported in the twenty-two volumes of New Jersey memory." “Rather than disturb such an ancient reports then issued. Mr. Harrison was succeeded by line, it was the policy of the law to presume a grant.” | Robert D. Spencer, who began with the November
In Reed v. McCourt, 41 N. Y. 441, A. D. 1869, it term, 1842, and ended with the July term, 1846, was held that a parol assent as to the location of a having issued one volume. He was followed by A. boundary fence, and the actual erection of the fence, 0. Zabriskie, who reported the cases till the end of followed by mutual occupation and acquiescence for the March term, 1855, in four volumes. Andrew a few months, is not sufficient to change the true Dutcher followed, and reported in five volumes the line, and that "scarcely less than twenty years" cases both in the supreme court and court of errors would effect such change.
and appeals to 1862. The substance of these authorities on the point of Peter D. Vroom, the present law reporter, began acquiescence seems to be this:
with the June term, 1862, and has thus far issued Where the description of the premises in a deed is four volumes, bringing the cases in both supreme definite, certain and unambiguous, no extrinsic evidence court and court of appeals down to the June term, is admissible to show a different location, unless a posses- 1869. The several foregoing reports make up the sion be shown under claim of title for such a length of series cited as New Jersey Law Reports, now numtime as to bar a recovery in ejectment. If, however, the bering thirty-three volumes. description is vague, obscure or ambiguous, or the monu- By an act passed in 1832 the appointment of a ments referred to have become decayed or destroyed, such chancery reporter was authorized, who was to hold evidence is admissible in aid of the deed.
office for five years. The chancery reports were pub(To be continued.)
lished separately from the law reports. A volume of
reports was not issued under this provision until 1838, AMERICAN REPORTS AND REPORTERS.
although the cases had been printed annually by the
state. In that year N. Saxton published one volume No. IV.
containing the decisions of Chancellor Vroom from
1830 to the July term, 1832. In 1842 Henry W. The earliest decisions regularly reported in this Green, having been appointed chancery reporter, state, were those from the April term, 1790, to the issued the first volume of his reports, commencing November term, 1795, inclusive, which were published with the January term, 1838, leaving an interval of in one volume by Richard $. Coxe, in 1816. The about five years between Saxton's reports and his legislature had provided, in 1806, that a reporter own. He, however, promised to collect and publish should be annually appointed by joint ballot of the the cases during that interval, and did so in his second two houses, whose duty it should be to collect and and third volumes. He published three volumes, prepare for publication the decisions of the supreme ending with the January term, 1845. George B. court, and deliver them to the printer of the state Halstead reported in four volumes the cases from laws, who was directed to print the same with the the April term, 1845, to the end of the June term, state laws each year. The decisions so printed with 1853. John P. Stockton continued the cases in the laws from 1806 to 1813, were afterward col- three volumes down to 1858; Mercer Beasley thence lected into two volumes by W. S. Pennington, one of down to 1861, in two volumes; Thomas N. McCarter the justices of the supreme court.
to 1856, in two volumes; and C. E. Green down to In February, 1818, Samuel L. Southard, one of the the November term, 1870. justices of the court, received the appointment of reporter, and reported the decisions from the February term, 1816, to the May term, 1820, in two The first volume of reports published in this state, volumes. In March, of the last named year, the term and the second published in the country, was the of office of the reporter was extended to five years, first volume of Alexander J. Dallas, issued in 1790, and his salary fixed at $200 or $250. In 1821, Wi and containing cases in the supreme court, court of oyer liam Halstead, Jr., succeeded Mr. Southard, and held anil terminer print of corrono pilnas mm!!inhorn
court of errors, between September, 1754, and Decem- issued a series of nine volumes, closing with the
visions of the act should be “Pennsylvania State ReIn 1800 Alexander Addison, then president of the ports.” Robert M. Barr received the appointment. courts of common pleas of the fifth circuit, reported He began with the cases of the May term, 1845, one volume of cases in these courts, and in the high and ended his series with the May term, 1849. He court of errors and appeals, between 1791 and 1799, issued ten volumes, known and cited as the first ten including in the volume a large number of his charges of the Pennsylvania State Reports. It may be well to grand juries.
enough to mention here that when counsel wish to Peter A. Browne published, in 1811 and 1815, two refer to this series, they sho’ld cite “ Pennsylvania volumes of cases adjudicated in the court of common State Reports," as the reports of Watts and Penrose pleas of Philadelphia, between 1806 and 1814. are known as the “Pennsylvania Reports."
The reports cited as Yeates' reports were published Mr. Barr died about the time of the publication of in 1817–1819, in four volumes, by Charles Smith, from his tenth volume – 1849 — leaving a large amount of the manuscripts of Jasper Yeates, one of the supreme materials intended for further numbers. This material court justices, who had prepared them for the press. was arranged by his friend J. Pringle Jones, and These volumes contain the decisions of the supreme published with the consent of the governor, for the court from 1791 to 1808, with a few nisi prius and benefit of his family. This material filled two volumes, circuit court cases.
bringing the cases down to the December term, In 1808, Horace Binney began a series of reports, 1849. George W. Harris was appointed successor to which was concluded in six volumes in 1815, and Mr. Barr, and reported the cases to 1855, in twelvo contained the decisions of the supreme court from volumes, numbered in the series 13–24. 1799 to 1814.
James Hepburn was next appointed, but died after In 1818, Thomas Sergeant and William Rawle, Jr., he had partly prepared a volume for the press. began the publication of a series of reports of the Joseph Casey succeeded him and finished his incomsupreme court decisions, commencing at the termina- plete volume. Casey reported, in twelve volumes, tion of Binney's reports in 1814, and terminating with (25–36 Pa. St.) the cases down to 1860. Robert E. the September term, 1828. Their reports numbered Wright succeeded, and continued the cases to 1865, in seventeen volumes. William Rawle continued to fourteen volumes. report the decisions of the supreme court for the The present state reporter - Mr. P. Frazer Smith -eastern district until 1835, in five volumes, when he succeeded Mr. Wright, and has reported the decisions was followed by Thomas J. Wharton, who reported from the October term, 1865, to and including the the cases in that district down to 1841, in six volumes. January term, 1870, in fourteen volumes, the last
The cases in the middle, southern and western dis- being volume 64, of the state series. tricts, from 1829 to 1832, were reported by William Besides these supreme court reports, there are the Rawle, Charles B. Penrose and Frederick Watts, in following miscellaneous reports: three volumes, cited as Pennsylvania Reports, or Frederick C. Brightly published, in 1851, decisions Penrose and Watts' Pennsylvania Reports. From at nisi prius, in Philadelphia, from 1809 to 1851. 1832 to 1840 the decisions of the supreme court in Many of the cases were elaborately annotated. these three districts were reported by Frederick Benjamin Grant published, in 1857–64, as an indiWatts, in ten volumes.
vidual enterprise, three volumes of cases in the In 1831 John W. Ashmead published a volume of supreme court. These reports include cases between cases decided in the Philadelphia common pleas, quar- 1852 and 1863. Alden's condensed reports, in three ter sessions, etc.; and John Miles published, in 1836- volumes, contain cases between 1754 and 1814. 1842, two volumes of the decisions of the district In 1851 A. V. Parsons, one of the judges of the court of Philadelphia, from 1835 to 1840.
court of common pleas for Philadelphia, published Frederick Watts and Henry J. Sergeant began one volume of select cases in equity, decided in his with the May term, 1841, of the supreme court, and court between 1841 and 1850. The Philadelphia
common pleas reports, in four volumes, contain the and has continued the series to the thirty-second decisions of that court from 1850 to 1861.
volume. F. Carroll Brewster began, in 1869, reports of The reports of the cases decided in the high court • equity, election, and other important cases," de- of chancery were published by Theodoric Bland in cided principally in the courts of Philadelphia. The three volumes, containing the cases from 1811 to cases began with October, 1856, and the third volume, 1832. The decisions of Chancellor Johnson, between recently published, contains cases as late as 1871. the years 1846 and 1854, when the court was abol
The act of 1845 is substantially the law now, as to ished, were reported in four volumes, cited as the the reporter, except that his reports may be bound in Maryland Chancery Decisions. sheep and sold at $4.50 instead of $4.00. The pro- The existing laws of Maryland provide for the apvision, also, that minority opinions shall not be pub- | pointment of a reporter by the judges of the court of lished, has been abolished, so far as relates to constitu-appeals for the term of four years, at a salary of one tional questions.
thousand dollars per year. He is to report all decisions of the court of appeals, designated by said court
to be reported, within six months after their delivery. In February, 1837, it was made the duty of the
Each volume is to contain at least six hundred pages, judge of the superior court, residing in Kent county,
and is to be sold at $5.00 a volume. The reporter to prepare reports of the decisions of the superior
owns the copyright and pays the expense of publishcourt, court of oyer and terminer, and court of
ing. The state takes two hundred copies at $6.00 a errors and appeals. Samuel L. Harrington, associate
volume. justice, in pursuance of this act, published five volumes, commencing with the spring session of 1832, and ending in 1855. In 1866, a volume of reports
MISTAKES OF LAW. was published by John W. Houston, associate judge,
(Continued from Vol. III, p. 448.) containing the cases between the spring of 1855 and
The question was much discussed by the supreme the fall of 1858. Since that time there has been no
court of Alabama, in the case of Jones v. Watkins, 1 volume issued in the state.
Stew. 181, and the court expressed themselves strongly against relieving from mistakes of law, but
the point was neither necessarily nor properly before The four volumes of reports published by Thomas the court. There the plaintiff's, years before, had Harris and John M'Henry, between 1809 and 1818, given their notes, stipulating therein to pay a large were the earliest reports published in this state. They rate of interest, in the belief that under the statute contain the cases decided in the provincial court and they might lawfully stipulate for any rate of interest court of appeals, of the then province, from 1700 to the that the parties should agree upon. When the notes American Revolution, and in the general court and matured they paid some of them voluntarily, and court of appeals of the state from 1780 to 1799. These suffered judgment to be taken by default on the reports were succeeded by the reports of Thomas others. Some years afterward the courts decided, that Harris and Reverdy Johnson, numbering seven vol- the statute in question limited the rate of interest in
The first volume contains the decisions of the cases like this to a sum much smaller than plaintiff's general court and court of appeals from 1800 to 1805, had paid. Thereupon plaintiff's filed their bill to reinclusive. The general court having been abolished, cover the overpayment. There were several reasons the remaining six volumes contain only the decisions why they were not entitled to relief. One was, that of the court of appeals down to 1826. Following in their remedy, at least at law, was barred by the regular succession these reports are the two volumes statute of limitation before their bill was filed. of Thomas Harris and Richard W. Gill, containing the Another was, that they had a good legal defense at decisions down to 1829. From 1829 to 1843 the the time to the actions brought on the notes, but had cases in the court of appeals were reported in twelve failed to make it; again, there was no fraud shown, volumes by Richard W. Gill and John Johnson. Mr. but the notes were paid in exact conformity to the Gill continued the reports from that time to 1851. original intention of the parties; or, in other words, · In 1851 A. C. McGruder was appointed state they had paid what the law would not have comreporter under a provision of the legislature, and pelled them to pay, but what, in equity and conbegan the series known as the Maryland reports with science, they ought. The case did not, therefore, call the December term, 1851. He published two vol- for the interference of the court. umes ending in the latter part of 1852. Volumes In Pinkham v. Gear, 3 N. H. 163, Chief Justice 3–18 of the Maryland reports were reported by Oliver Richardson regarded it as well settled that no man Miller, and contain the cases between December, 1852, can avoid his contracts by an allegation that he made and June term, 1862, inclusive; from nineteen to it under a mistake of law. This nobody will dispute, twenty-six of the series Nicholas Brewster, Jr., held | for it is clear that the mistake must be not only the office. Mr. J Schaaff Stockett succeeded him, alleged, but proved. The case of Peterborough v.
Lancaster, 14 N. H. 382, is in no proper sense an was purchasing. The case turned solely on the ques-
The defendant was the devisee of certain lands, but In Kentucky, it has been uniformly held that courts the heir at law interposed a claim that the devise was of equity can grant relief in case of mistake either illegal. The defendant was advised by counsel that of law or fact. In Underwood v. Brockman, 4 Dana, he could not hold the real estate, because when the 309, and Ray v. Bank of Kentucky, 3 B. Monroe, 510, will was made he was not a naturalized citizen. the court of appeals of that state ably and fairly dis- Desiring to become the owner of the property, he cussed, on general principles, the question as to the procured the heir at law to execute a deed of assigneffect of mistakes of law, and the conclusion at which ment of all his interest therein in favor of the defendthe court arrived was, that if a man, without any other ant, who, in consideration thereof, issued a bond motive or consideration than an erroneous opinion re- which was afterward assigned to plaintiff, and on specting his legal rights and obligations, release a right, which this action was brought. This bond was exepay money or undertake to do an act, he should be held cuted under a clear mistake of law, as the devise to entitled to relief equally as if he had acted under a defendant was effective and legal, and the land already mistake of fact, and for the same reason, namely, that his when he purchased it. The case was very ably the contract was not such as the parties, or one of and elaborately argued on both sides, and the court, them at least, really contemplated. “And such," they in a learned opinion, held that contracts founded on a said, “we understand to be the rational and consist- plain and palpable mistake of law ought not to be ent doctrine of the common law established in Ken- enforced, and that there was no difference in principle tucky." See to the same effect, Fitzgerald v. Peck, between the cases of recovering back money, and of 4 Litt. 125; Gratz v. Reed, 4. B. Monroe, 190. enforcing a contract founded on such a mistake.
In South Carolina, where the question has fre- These two cases having been somewhat doubted by quently been before the courts, the doctrine is well the chancellor in a subsequent case (Hopkins v. Mazsettled in harmony with the cases in Kentucky. In yack, 1 Hill Ch. 242), the court of appeals took occathe first case presenting the question, the defendant sion, when the case came before them, to express had sold a wharf, and for a part of the purchase-money their decided adherence to the rule laid down. The had taken seven bonds, to secure the payment of which court said that Lawrence v. Beaubien was decided on he held a mortgage on one-half the wharf. He as- much consideration, and the more they had reflected signed two of these bonds on which the plaintiffs were on it since the more they were confirmed of its corsureties, together with so much of the mortgage as rectness. related to them, and, on their maturity, the plaintiffs In Wheaton v. Wheaton, 9 Conn. 96, the mistake was were compelled to pay the assignee the amount due simply that the plaintiff mistook the legal effect of a on them. The plaintiff recovered judgment on the plain note of hand; or, as the court said, the plaintiff five other bonds, and the mortgaged premises were ignorantly supposed a note payable by the terms of sold under the judgment and without any foreclosure it in three years to be in law a note payable at the of the mortgage, and were purchased by the defend- death of the obligee, and then not actually to be paid, ant. Both he and his counsel intended to sell the fee but to be delivered up. The court thought that it simple of the property, and the sheriff so offered the would be difficult to prove such a mistake, and held premises for sale, but in fact only the equity of re- that parol proof was not admissible to show a misdemption passed by the sale. The plaintiffs filed their take of law. bill, claiming to have the proceeds of the mortgaged But this decision is substantially overruled by a later property applied to pay them in proper proportion, decision in the same court, in the case of Northrop v. and insisted that the premises in the defendant's hands Graves, 19 Conn. 548, in which the question is fairly were liable to them as mortgage creditors, thereby met and decided in favor of relieving such mistakes. In claiming to hold the defendant accountable for the that action the plaintiffs, as executors, had paid to sum he had bid for the property under the supposition defendant's wife in his presence, the sum of $500, under that he was buying the fee, yet allowing him only the the supposition that she was entitled to it under the equity of redemption. The court held the defendant will. The fact was, that she was in no wise entitled to not bound by the purchase, the effect of the sale being the money, and defendant knew it when it was paid, 10 pass a less interest than that which he believed he l but did not disclose it. Action of indebitatus assump