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Nash

V.

Tupper

We

NEW-YORK, the contract originated. The present defence is a perpe Nov. 1803, tual bar to the action, and therefore involves in it, the me-. rits, and not a mere question of form. If so, the laws of Connecticut should be our guide, and not those of our own state. In foro conscientiæ, the plaintiff's case is a clear one. The defendant by his demurrer admits, that if he had not come to this state, the plaintiff might and ought to have recovered. It would be matter of regret, if we were compelled to listen to as unjust a defence, considering the real understanding of those parties, as was ever obtruded upon a court of justice. It would not be easy to assign a reason why an obligation incurred in one state should be cancelled by either of the parties flying to another. are not, in any opinion, under the necessity of establishing a principle or practice which may so easily be abused, and must always be followed by great injustice. So long as we are at liberty to expound contracts lege loci, it is our duty to discountenance a defence, which in such country would not be allowed. When the defendant left Connecticut, the plaintiff had a good cause of action against him, which ought not to be defeated by his own act, in coming among us. I think, therefore, that as this defence has nothing to do with the form of action, but strikes at the plaintiff's right to recover at all, we should apply to this case, the limitation act of Connecticut, and that as seventeen years have not run since these notes were made, the plaintiff should have judgment.

Intrusion for a forfeiture of lands granted

in fee, will not

The People of the State of New-York against Caleb
Brown and others.

THIS was an information filed at the direction of the

Bie before office legislature, by the late attorney-general, against the defound. Intrusi- fendants, for an intrusion on certain lands lying in the

on must be on

the actual pos- county of Otsego.

session of the

people. he. people can ac

possession of

The defendants claimed under letters patent, of the 6th quire seisin or September, 1770, for 9200 acres, granted by his Majesty, Lands forbreach George the third, of Great Britain, France and Ireland, of condition by King, &c. at a quit rent of two shillings and six pençe sterling, for every hundred acres. After the usual reser

matter of re

cord only.

46

V.

Brown

vations of mines and white pine trees, for masts, the grant NEW-YORK, Nov. 1803. contained the following proviso. "PROVIDED, further, "and upon condition also, nevertheless, and we do here- The People "by for us, our heirs and successors, direct and appoint, "that this our present grant shall be registered and enter"ed on record, within six months from the date hereof, in our secretary's office, in our city of New-York, in our "said province, in one of the books of patents, there re, "maining; and that a docquet thereof, shall be also enter "ed in our auditor's office there, for our said province, " and that in default thereof, this our present grant shall "be void and of none effect, any thing before in these presents contained, to the contrary, thereof, in any wise, "notwithstanding."

* The name

It was admitted, that no docquet of the said letters patent, had been entered in the office of the auditor, pursuant to the said proviso, but the following entry made since the year 1797, is found in a memorandum took of patents in the office of the comptroller, of this state, to wit. 1558, patent granted to Leonard Lispenard,* and of the first paothers, for 9200 acres of land, in Albany county, dated tentee. "the 6th of September, 1770, at two shillings and six "pence sterling, for every hundred acres." About the same time, when the above memorandum was made, Samuel Jones, Esq. comptroller of this state pursuant to the laws relative to quit rents, caused the aforesaid tract

of land to be advertised for payment of the quit rents Under the due.

8th section of the "act con

pril, 1801.

It was further admitted, that on the 3d of April,1799, the cerning quit rents," passed sum of $3 84 cents, was paid into the treasury of this state, the 8th of Aby George Stanton, one of the original patentees, in pursuance of the act, for the collection of quit rents, as the arrears and commutation then due, on lots no. 41, and 42; and that on the 28th of October following, SS 82 cents were -in like manner paid, on 50 acres of the grant, by one Jesse Clark, who had purchased under the patent, from which the defendant, Brown, derives his title ; but neither the lots 41 and 42, nor the 50 acres on which the said $ 3 82 cents were paid, constitute any part of the lands in his tenure.

NEW-YORK,
Nov. 1803.

On these facts it was submitted to the court, whether the defendants were or were not guilty of the intrusion The People complained of.

V.

Brown,

The decision alluded to is Stephens v. Potter, Cro.

Spencer, Attorney-General. It is admitted that there was no docquet entered in the auditor's office, according to the proviso in the letters patent. The information is grounded on this principle; that the forms required by the grant, created a condition, proviso, on limitation, which was to make it void, on the not doing a certain act by the patentees. If, therefore, this act has not been performed, the instrument is a nullity, and the people have a right to consider all persons now on the land as intruders. It may perhaps be urged in behalf of the defendant, that the act concerning quit-rents has done away the forfeiture: especially as the officers of government have received the quit rents due, and have, therefore, considered the patent as in existence and good. That, however, will depend on whe ther the not docketting the patent within the time limited, did not cause the estate of the patentees to instantly cease; or whether, even allowing the contrary, the payment could purge the forfeiture for more than those very lands on which made, and which do not include those for which the intrusion is brought. There can be no doubt that every grantor, whether a state or an individual, may annex to his grant whatever conditions he pleases, provided they are not repugnant to principles of law. Here the condition is, that the grant shall "be void and of none effect." Therefore, the acceptance of rent could not restore what was gone. Sir Moy Finch's case, Cro. Eliz. 331, shews the soundness of this position. This, it may be said, was the case of a demise for years. A distribution, therefore, may be attempted between that and the present, which is of a fee. In fact, however, the diversity does not exist.

This the court will see in 17 Vin. 81. pl. 1. n.* it is not, that in one case the estate is void, and in the other voidaCar. 100,2 Res. ble; but whether the determination be by the same means but that merely determined as create the interest. The proviso here was a limitation years reserving which ended the estate on non-performance, because as it

that a lease for

rent payable at

the exchequer, was created by matter of record, so it was to be destroyed

Nov. 1803.

v:

Brown.

is void on non

out office found whereas, if the

to the receiver

payment with

does not va

son is obvious,

as the crown

'can grant only by record, it can be informed only by re

payment to the

matter in part,

office it is of

ment at the

by matter of record. It is generally true, that where a NEW-YORK freehold is to be defeated, entry is necessary, but it is not so where an act that ought to appear of record is not done. The People It is laid down that if an estate granted by the crown determine by a condition broken, the King shall be suited without office found, where the breach is apparent upon payment, with record. 7 Com. Dr. 53. (D. 70.) It is the revesting of the estate which we contend for here. This makes the rent be payable difference between the present question, and that of Van general, nonSchaick in 1796, in which it was decided, by the court of out office found errors, that a new grant would not be made till after of- cate. The reafice found, not that an information would not lie before. There can be no doubt of the words used in the grant creating a condition, Lett. Ser. 329. which was a limitation or qualification of the estate. For this purpose the word cord; the nonprovided" was certainly the most fit. On breach of it, receiver is a the estate must be judged in the grantor, or, as here, the when found by people, Litt. Ser. 350. So here as the nonperformance record, and so was a record, the right to proceed by intrusion accrued is non-paybefore office found, the estate of the patentees being to- exchequer. See tally divested. The next consideration is, whether thing has been done to waive the forfeiture. This may be laid down as an established position, what is void cannot be confirmed, what is voidable may. As then the interest of the patentees was absolutely annulled, the receipt of the quit rents could not revive it, Jenkins v. Church, Cowp. 482, Doe v. Butcher, Doug. 50. Even in voida- at the end of ble cases the mere acceptance of rent, unaccompanied livery of seisin two years, and with any other circumstances, will not work a confirma- according to tion. No receipt can revive or confirm, unless taken vested by implication bewith a knowledge of the forfeiture and an intent to waive. cause grantor The act concerning quit rents does not recognize any loss upon the of title in the defendant, or others holding under the same his own grant, breach, as by patent. No payment therefore to an officer acting by au- three years in the grantee had thority of a general law, with a power merely to extin- the land. § See Green's guish quit rents could revest. All that he could do was to case, Cro Eliz. 3 Roe v. Harbar the right of the people on them when due, and not by rison, 2 D. & taking them if not due, to give away the land of the state.

any

this, however doubted,2 Rols. Abr 216, (H.) The cases to,arcof leases.

there referred

The case of a lease for 5

years with condition to have

fee, on paying

of forty marks

the deed. Re

could not enter

E. 425

NEW-YORK,
Nov. 1803.

V.

Brown.

ditional limita

Con. Rom. 6

ed. 9.

:

Emmot and Van Vecten contra. Though from the length of time the defendant, and those under whom he The People claims have been in possession, the case is a hard one, still we are ready to exculpate both the present and late attorney-general, from all imputation of rigour. They have acted only in obedience to resolutions of the legislature. The case divides itself into two questions. 1st. Whether the grant be void, or voidable? 2d. Whether, if so, the present form of action is the appropriate remedy? Whether, void or voidable, will depend on a number of subordinate enquiries. We did not, it must be confessed, expect that the proviso would have been urged as a li mitation, which goes on always to a certain express time As to con- of determination; it is a condition* and nothing more, in tions,see Fearne which case, as the estate might continue over, it was voidable and not void. But the words in question, created neither the one nor the other; they were merely directory on the officers of government, and did not oblige us to do any thing they are separated from the conditions by which the grantees were bound by specific acts. The words are "we direct and appoint." The clause itself is rare, this being the only grant we can find in which it is contained. The officers of government ought, the clause being directory, to have given notice to the patentees to come in and docket; for, to the patentees, themselves, the act was nugatory, as they had complete evidence of the right by the grant itself. But, considering the clause as a condition, then we contend it is repugnant to the grant and void. It was for an act to be done by the officers of the crown, for the benefit of the crown alone. It is the same as if a grantor had conveyed, on condition that he should himself lodge the consideration money within 20 days in the United States bank, or the conveyance be void. The result would be to put the whole grant within the power of the crown; or what is the same thing, within that of its officers. But should the condition in the proviso be deemed a valid one, and obligatory on us, we say it has been performed; for if the intent be complied with, it is sufficient. That the leaning of the court is

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