29 U.S. 1 (1830), Carver v. Jackson Ex Dem. Astor

Citation:29 U.S. 1, 7 L.Ed. 761
Case Date:March 02, 1830
Court:United States Supreme Court

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29 U.S. 1 (1830)

7 L.Ed. 761




United States Supreme Court.

March 02, 1830

THIS was a writ of error to the circuit court of the United States, for the southern district of New York.

In the circuit court for the southern district of New York, an action of ejectment was instituted by the defendant in error, for the recovery of a tract of land in the town of Carmel, in the county of Putnam, in the state of New York. The plaintiff claimed title on the demise of John Jacob Astor and others, named in the case. The action was tried by a jury at October term 1829, in the circuit court, in the city of New York, and a verdict and judgment rendered for the plaintiff in the same; a bill of exceptions was tendered by the defendant in the circuit court, who prosecuted this writ of error.

After judgment was rendered for the plaintiff in the circuit court, he prayed the court to order a writ of possession, to cause him to have possession of the premises; and thereupon James Carver suggested to the court, that Roger Morris, and Mary Morris his wife, under whom the plaintiff in ejectment claimed, were for fifteen years and upwards, next before the 22d of October 1779, in possession of a large tract of land in the then county of Dutchess, in the state of New York, including the premises. That on the 22d of October 1779, the legislature of the state of New York, by 'an act for the forfeiture and sale of the estate of persons who have adhered to the enemies of the state, &c.' declared Roger Morris and his wife to be convicted and attainted of adhering to the enemy; and all their estate, real and personal, severally and respectively, in possession, reversion, or remainder, was forfeited and vested in the people of the state. That commissioners appointed under this act, on the 16th of November 1782, sold, disposed of, and conveyed the land in question in this suit, to Timothy Carver, his heirs and assigns, for consideration of seventy-one pounds. That by an act of the legislature of the 12th of May 1784, and an act of the 1st of May 1786, it was among other things provided, that where judgment in a due course of law should be obtained for any lands sold by the commissioners of forfeitures, against any person who derived title thereto under the people of the state, or the commissioners,

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the person who obtained judgment should not have a writ of possession, or obtain possession of the land, until he or she should have paid to the person in possession under said title, the value of all improvements made thereon, to be estimated as provided in the acts. That he, the said Timothy Carver, purchased the property held by him in the full confidence that he obtained a perfect indefeasible title to the land in fee simple, entered forthwith into possession of the same, made great, valuable and permanent improvements on the land, which are now in value upwards of two thousand dollars, by which the lands are enhanced in value to that sum and upwards. That Timothy Carver afterwards conveyed the premises to James Carver, the defendant in ejectment, who also made other valuable improvements on the land, before the commencement of this suit, of the value of two thousand dollars and upwards. That this action has been commenced and prosecuted, and a recovery has been had on a ground of title, reciting the same; that the act of the legislature of New York, passed the 22d of October 1779, for the forfeiture of estates, &c. did not take from the plaintiff in the suit the title to the premises, after the death of Roger Morris and wife, both of whom were deceased at the time of the institution of this suit. So that the plaintiffs were the owners of the land in fee, and entitled to recover the possession of the same. And the defendant insists that, under the provisions of the several acts of the legislature of New York, he ought to be paid the value of the improvements made on the lands; that no writ of possession should issue until the same was paid; and he prays the court to stay the plaintiff from the writ, or from having possession of the lands, until the value shall be paid; and that commissioners may be appointed to ascertain the said value.

The plaintiff did not deny the facts alleged by the defendant, but he denied the right of the defendant to be paid for the improvements, and insisted on his right at law to a writ of possession, and to the possession of the land without paying the value of the improvements. The court held, that the matters suggested by the defendant, and admitted by the plaintiff, were not sufficient to bar or stay the plaintiff from

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having his writ of possession, or possession of the land without paying the whole or any part of the value of the improvements estimated or valued in any way whatever; and that the plaintiff should have a writ of possession to cause him to have possession of the lands.

The bill of exceptions set forth the whole proceedings on the trial of the cause; and that an agreement had been entered into by the parties to it, that the plaintiff is not entitled to the recovery of the property unless it should satisfactorily appear in the suit, in addition to whatever else may be necessary to authorise a recovery therein, that the whole title, both in law or equity, which may or can have been vested in the children and heirs of Roger Morris and Mary his wife, of, in or to the premises or lands in question in the suit, has been, as between the grantors and grantees, legally transferred to John Jacob Astor, one of the lessors of the plaintiff, his heirs and assigns; nor unless a proper deed of conveyance in fee simple from John Jacob Astor and all persons claiming under him to the people of the state of New York, would be valid and effectual to release, transfer, and extinguish all the right, title, and interest, which now is, or may have been vested in the children and heirs of Roger Morris and wife.

The plaintiff in the ejectment gave in evidence a patent from William III. to Adolphe Philipse, dated 17th June 1692, for a large tract of land, including the premises, and proved the descent of the same to Frederick Philipse; and that Mary Philipse, who afterwards intermarried with Roger Morris, was a devisee in tail with other children of Frederick Philipse, and by subsequent proceedings in partition, and by a common recovery, Mary Philipse became seised in fee simple of one equal undivided part of the land granted by the patent; and that afterwards, on the 7th of February 1754, a deed of partition, reciting the patent and the title of the heirs, was executed between the children and devisees and heirs of Frederick Philipse, by which the portions severally belonging to them were set apart and divided to each in severalty, one portion being allotted to Mary Philipse; the land in controversy being included in the land surveyed

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and held under the patent and deed of partition. The part allotted to Mary Philipse in the partition, was No. 5.

The plaintiff then offered to read in evidence a deed of marriage settlement, dated 13th of January 1758, intended to convey all the land in No. 5, between Mary Philipse, of the first part, Roger Morris of the second part, Joanna Philipse and Beverly Robinson of the third part; on the back of which deed was indorsed a certificate in the following terms: 'Be it remembered that on the 1st day of April 1787, personally came and appeared before me, John Sloss Hobart, one of the justices of the supreme court of the state of New York, William Livingston, Esq., governor of the state of New Jersey, one of the subscribing witnesses to the within written indenture, who being by me duly sworn, did testify and declare that he was present at or about the day of the date of the within indenture, and did see the within named Joanna Philipse, Beverly Robinson, Roger Morris, and Marry Philipse, sign and seal the same indenture, and deliver it as their and each of their voluntary acts and deeds, for the uses and purposes therein mentioned, and I having carefully inspected the same, and finding no material erasures or interlineations therein, other than those noted to have been made before the execution thereof, do allow the same to be recorded. John Sloss Hobart.' Upon the back of the deed was also indorsed a certificate of the recording thereof, in the following words: 'Recorded in the secretary's office of the state of New York, in deed book commencing 25th November 1774, page 550. Examined by me this 11th of April 1787. Robert Harpur, D. Secretary.' To which said evidence, so offered, the counsel for the defendant objected; upon the ground that the certificate was not legal and competent evidence to be given to the jury, and did not entitle the plaintiff to read the deed in evidence, without proof of its execution; and that the certificate was not sufficient, inasmuch as it did not state that William Livingston testified or swore that he was a subscribing witness to the deed. The parts of the deed of 13th January 1758 material to the case, are the following:

This indenture, made the 13th day of January, in the thirty-first

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year of the reign of our sovereign lord, George II. by the grace of God, of Great Britain, France, and Ireland, king, defender of the faith, &c., and in the year of our Lord 1758, between Mary Philipse of the first part, major Roger Morris of the second part, and Joanna Philipse and Beverly Robinson of the third part, witnesseth, that in consideration of a marriage intended to be had and solemnized between the said Roger Morris and Mary Philipse, and the settlement hereafter made by the said Roger Morris on the said Mary Philipse, and for and in consideration...

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