Baeder v. Jennings

• Decision Date: 18 October 1889
• Parties: BAEDER v. JENNINGS.
• Court: U.S. District Court — District of New Jersey

40 F. 199

BAEDER v. JENNINGS.

United States Circuit Court, D. New Jersey.

October 18, 1889

On rule to show cause why verdict should not be set aside, and a new trial granted.

This rule came on to be argued, by agreement of the parties before Mr. Justice BRADLEY, at his chambers, city of Washington, 11th February, 1889.

At the trial of the cause before Judge WALES, at Trenton, September term, 1887, a stipulation was made between the parties as follows:

'It is on this 28th day of September, 1887, agreed by and between the respective attorneys of the above parties that at the close of the testimony both parties shall rest; that a pro forma verdict shall be taken for the plaintiff; that an application for a rule to show cause why a new trial should not be had shall then be made by the defendant's attorney, which rule to show cause, by consent of plaintiff's counsel, shall be allowed; that the attorneys of the respective parties shall each furnish to the other side a brief of the points and cases relied upon at least 20 days before the argument of the rule, the defendant first presenting the plaintiff his briefs, to which the plaintiff shall reply; that the rule shall be argued at such time and place as shall be directed by the court upon the points raised by the record, and relied upon in the respective briefs above mentioned.

(Signed) 'I. W. CARMICHAEL, Atty. of Deft.

(Signed) 'Garrison & French, Attys. of Plff.'

The report of the proceedings shows that, after the evidence was closed, the judge, referring to this stipulation, charged the jury as follows, to-wit:

'Gentlemen of the Jury: Counsel on both sides have come to a stipulation which is a very convenient one for both you and the court. You observe that the case is a very intricate one, the testimony involving the examination of old records and ancient statutes,-- colonial statutes,-- which the court would have had to make itself familiar with, and give you an opportunity to investigate them; but counsel have come to a conclusion to let you render a verdict, and the matter will be argued hereafter on a motion for a new trial, and the court will decide whether your verdict will stand or be set aside.'

Thereupon the jury brought in a verdict for the plaintiff.

The motion was argued on the whole evidence in the cause, and the question was whether the evidence was sufficient to sustain the verdict in favor of the plaintiff; in other words, whether the rule to show cause should be made absolute or discharged.

Garrison & French and P. L. Voorhees, for plaintiff.

I. W. Carmichael and B. Gumere, for defendant.

BRADLEY Justice.

The land for which the action was brought, as described in the declaration, is a parcel of 5 acres and 61 hundredths of an acre, situate on Long Beach, in the township of Eagleswood, in the county of Ocean, and state of New Jersey, being to the east of the line between East and West Jersey, bounded south-easterly by the Atlantic ocean, and north-easterly by the line between lots numbered 17 and 18 of the Cox patent, as divided by J. S. Earl and others in the year 1818, and being part of said lot No. 18. The plaintiff set up two grounds of title: First, by grant from the proprietors of East Jersey to Daniel Cox in 1691, and deduction of title to the plaintiff; second, by continuous possession under claim of title for a long period of time, to-wit, more than 20 years before the defendant took possession. The defendant claimed title under a warrant for 10,000 acres of land from the proprietors of East Jersey to Charles E. Noble, trustee for themselves, issued in 1884, and a survey thereunder to said trustee, dated March 18, 1886, duly returned and recorded, and a deed of conveyance from Noble to the defendant. Of course, the defendant relies upon his possession, and claims that the plaintiff must prove title in herself; but it is not pretended that the defendant acquired possession in any other manner than under the said survey of 1886, made for the use of the proprietors. The controversy is really with them. The links in the chain of documentary title on which the plaintiff relies are as follows, to-wit:

1. Certain deeds of conveyance vesting in Daniel Cox two shares of propriety in East New Jersey. These deeds are: First. One from Edward Byllynge, one of the original 24 proprietors of East Jersey, (see Leaming & Spicer, 73,) being a lease and release for one share, dated 19th and 20th of March, 2 Jas. II., (1685-86;) second, a deed from the widow and heir of William Gibson, another of the original 24 proprietors, to Thomas Cox, for one share, dated 6th April, 3 Jas. II., (1687;) and a deed from Robert West and Thomas Cox to Daniel Cox, for the same share, dated 4th December, 1 W. & M., (1689.) These deeds, if duly authenticated, show that Daniel Cox-- who, history tells us, was not only a noted person at court, being physician to the queen of James II., and to Princess, afterwards Queen, Anne, but a very prominent man in the affairs both of East and West Jersey-- was the owner of two shares of propriety in 1689. It will be seen that he disposed of them to the West Jersey Society in 1692. But in the mean time he made other deeds or mortgages affecting these shares. The records show that he conveyed the first share, purchased from Byllynge, to one Samuel Stancliff, in April, 1687, and that Stancliff got out a warrant for 10,000 acres of land upon it, but whether he ever procured surveys therefor is not shown. It would seem that this conveyance was by way of security or mortgage, and that the share was reconveyed to Daniel Cox; for, in January, 1690-91, Cox conveyed the same share to John Hyde and John Haskins by way of mortgage; and they joined him in releasing it to the West Jersey Society, in March, 1692, soon after the conveyance of his property in America to that association, as will presently be mentioned. The other share, derived from the Gibson estate, was also mortgaged by Daniel Cox to Robert West and Benjamin Wetton, by lease and release, dated 5th and 6th of June, 2 W. & M. (1690;) and these persons joined him in a quitclaim to the West Jersey Society, in March, 1692. The records and certified copies of all these conveyances were produced in evidence on the trial. The objections to their reception will be noticed hereafter. Meanwhile it is pertinent to observe here that they were recognized by the proprietors of East Jersey, as will presently appear.

2. The next link in the plaintiff's chain of title is a survey to Doctor Daniel Cox, returned and entered October 7, 1691, for 2,400 acres of meadow at Little Egg Harbor beach, which it is conceded embraces the premises in question. The plaintiff first introduced a resolution of the council of proprietors, adopted May 20, 1690, as follows:

'Forasmuch as this board is given to understand by the surveyor general that there is at least 24,000 acres of meadow at Barnegat, it is therefore agreed and ordered that each propriety have allotted to it 1,000 acres of the said meadow, and that warrants be granted to each proprietor, and such other person or persons, their equal quantity, according to each one's proportional share in a propriety as they now hold, when desired, and that all the upland adjoining to the said meadows be granted to such of the said proprietors as desire the same, provided it join their own meadow.'

Several of the proprietors availed themselves of this resolution, and took up lands at the Barnegat meadows and on Little Egg Harbor beach, and took patents therefor. Four of these patents were produced in evidence,-- one to Peter Somans, dated 24th May, 1690, for 6,300 acres, partly on the beach; one to A. Gordon, of same date, for about 4,000 acres, embracing 3 miles of the beach; one to Thomas Hart; and one to William Dockwra,-- all including portions of the beach in continuous tracts. The tenor of the survey to Dr. Cox is as follows, to-wit:

'By warrant from the proprietors of East New Jersey, dated May 20, 1690, surveyed and laid out for Doctor Daniel Cox, (in right of two proprieties,) two thousand four hundred acres of meadow and upland at Barnegat, in two tracts: The first on the beach of Little Egg Harbor, beginning at the north side of the mouth or opening of the harbor on the point of the beach, or the beginning of the partition line betwixt East and West Jersey, and running north-easterly, as the beach goes, six miles, more or less, to Peter Soman's line in length, and from the sea to the bay in breadth, including all the meadows and islands adjoining on the side of the main channel of the sound or bay, bounded east by the sea, south by Little Egg Harbor, west by the channel of the bay, north by Peter Soman's. The other tract on the main side of the bay, opposite to the last-mentioned tract, beginning,' etc., (describing the same.) 'Also, five hundred acres of land at Wickatunk, which is his lot there, being number twenty-three, beginning,' etc., (describing the same.) 'Also five hundred acres of Topenenny, which is his lot there, being number eleven, beginning,' etc., (describing the same.) 'Also a home lot, being 24 chains in length, and 12 chains in breadth, bounded north-west by land unsurveyed, north-east by Thomas Warne, south-east by Robert Barclay, south-west by a highway.

(Signed) JOHN BARCLAY

This survey has an entry in the margin, as follows, to-wit 'Entd. 7 Oct. 1691.' It is objected that there is no proof that John Barclay was a deputy surveyor in 1690 or 1691. It is hardly creditable that a man of his high position, a son of the then recent governor, Robert Barclay, himself identified largely and in many ways with the proprietary affairs, a member of the council, and afterwards appointed surveyor general, (April, 1692,)...