Clason v. Baldwin

• Decision Date: 02 March 1897
• Citation: 152 N.Y. 204,46 N.E. 322
• Parties: CLASON v. BALDWIN.
• Court: New York Court of Appeals Court of Appeals

152 N.Y. 204

46 N.E. 322

CLASON

v.BALDWIN.

Court of Appeals of New York.

March 2, 1897.

Appeal from supreme court, general term, First department.

Action of ejectment by Josephine F. Clason against Elizabeth S. Baldwin. From a judgment of the general term (23 N. Y. Supp. 50). affirming a judgment for plaintiff, defendant appeals. Affirmed.

Isaac N. Miller, for appellant.

George W. Stephens, for respondent.

O'BRIEN, J.

This action, brought to recover a parcel of real property situated at No. 42 Sheriff street, in the city of New York, has been twice tried, and as often reviewed at the general term, and once in this court. Clason v. Baldwin, 129 N. Y. 183, 29 N. E. 226. The present judgment awarded the possession to the plaintiff, with damages or mesne profits in the sum of $5,337.

At the trial, upon the close of all the proofs, counsel for each party moved that a verdict be directed in his favor. The court refused to direct a verdict for the defendant, and directed a verdict for the plaintiff, to which direction and refusal the defendant excepted. By these requests both parties waived their right to have any questions of fact submitted to the jury, and virtually submitted to the judgment of the court all questions of fact and law. Had the defendant requested to have the case submitted to the jury, even after the motions for a direction, she would have been entitled to have the jury pass upon certain material facts in the case that rested entirely upon the interested testimony of the plaintiff herself, and were not clearly established. The material facts, so far as they depended upon evidence not conclusive or upon inferences to be drawn from circumstances, must now be deemed to have been found in favor of the plaintiff by the court. This point is a sufficient answer to all that is said upon the brief of the learned counsel for the defendant, in which he contends that certain elements of the case should have been submitted to the jury.

The exception to the direction of a verdict for the plaintiff and the refusal to direct one for the defendant raises the question whether, upon the facts now disclosed by the record, it was the plaintiff or the defendant that was seised of the premises at the time of the commencement of the action. The premises are a part of a large tract of land formerly owned and possessed by James Delancy, who was attainted of treason in the year 1779 (Laws 1779, c. 25), and his property declared forfeited to the state. By a subsequent statute provision was made for the sale of all such forfeited land by commissioners. Laws 1784, c. 64. On the 24th of January, 1786, the commissioners sold the land so forfeited by Delancy to John Quackenbos. This method of divesting the title of the owner of lands, and transferring it to another, does not conform to our present notions with respect to property rights. There was no judgment of conviction and no judicial proceeding of any kind, so far as appears. The title was changed, if at all, by an act of the legislature. The constitutional and legal safeguards for the protection of private property in our day did not exist then. There was no question made at the trial in regard to the validity of these proceedings, and no question is made here. They were so remote in point of time that all questions growing out of them have ceased to be of any practical importance, and we will assume, for the purposes of this case, that the sale was operative to pass the legal title. From Quackenbos the title passed through various mesne conveyances to William Jones Clason, who died on the 6th of August, 1824, leaving a will, which was admitted to probate. By this will he devised the property in question to his three children, of whom the plaintiff was one, subject to an annuity to his widow. The two other children, brothers of the plaintiff, died, one in 1825 and the other in 1860, without issue and intestate. It is supposed that the plaintiff then came into possession of the entire estate as survivor, under the terms of the will, or under the statute of descents, from her deceased brothers. It is contended, however, by the learned counsel for the defendant, that the shares of the brothers would pass under the statute, upon their death, not to the plaintiff, but to her mother, if then alive, for life, and so the plaintiff would not become entitled to the possession of the estate until her mother's death, and that, since there was no proof of her death prior to the commencement of the action, the plaintiff has not proved title. The learned counsel for the plaintiff seems to admit the force of this point, and that there is a defect in this respect in the proof, which, he says, was a mere inadvertence, and, as no specific point was raised in regard to it at the trial, it should be deemed waived. He further states, upon his brief, that, in fact, the mother died many years ago, and, in view of the fact that it was shown that she was born 92 years before the trial, this is quite probable.

We think that there are several answers to the contention of the defendant's counsel. The plaintiff certainly took one-third of the estate in her own right under her father's will, and she could maintain the action to recover that, if no more. At most, the omission to prove the death of the mother was a defect in proof which could have been supplied if attention had been called to it at the trial; but the defense made no question and raised no point whatever in regard to it. On the former appeal we affirmed the title of the plaintiff to the property on substantially the same proof as to her chain of title. After three trials of the case, and as many appeals, with no specific...