Jackson ex dem. Fonda & Ogden v. Teele , 7 Johns. 28 ( 1810 )

[Kent, Ch. J.

An award in favour of the grantor must enure to the benefit of the grantee.]

Again, Teele entered, in 1793, without claim or right. To whom then did his possession enure ? To the right owner ; that is, to Ogden, from whom Teele derives his title. So there is a conjunction of possession and right. A possession, not originally adverse, may become so, by a subsequent purchase.^*

If a man makes a lease of land which is not his, and he afterwards purchase it; the lease will bind him, and he is estopped to say the land was not his.^† Ogden cannot set up any claim, under the award, against his deed ' j-w to Ely.

Cady, in reply, insisted, that by the third section of the act, the award is “ binding and conclusive against all persons,” except those who enter their dissent within two years. If this is not to be the construction, then the awards of the commissioners are never conclusive j but may be inquired into in all cases. Even if an award was obtained by fraud; yet the party aggrieved by such award must enter his dissent.

Gold said, fraud was an exception in all cases; and cited 1 Fonbl. 322. Doug. 630. Talbot, 61. 3 P. Wms. 844.

Cady observed, that if a person, knowing a judgment or decree, purchases, though for a full value, such purchase is void. (Devon v. Watts, Doug. 88.)

Per Curiam.

The award in favour of Ogden, the grantor, enured to the benefit of Ely, his grantee. It was an award in favour of that title. None but.the party aggrieved was to dissent. The act, appointing the Onondaga commissioners, applied only to interfering and adverse claims. It did not apply to grantor and grantee, when there was no dispute between them. The act would work monstrous injustice, on the construction contended for on the part of the plaintiffs, that the award concluded even an innocent, unsuspecting grantee under the party who procured the award, as a shield to his original title. Ihe award, even if considered as a newly acquired title in favour of Ogden, enured in favour of Ely 3-for Ogden cannot claim against his prior deed to Ely „• and Fonda, to whom he sold, is equally precluded. (Jackson v. Bull, 1 Johns„ Cas 31.) And, at any rate, the sale to him,was void; for there was, at the time of the sale, a possession in the defendant, adverse to any existing title in Ogden. Judgment ought, therefore, to be rendered for the defendant.

Judgment for the defendant.^(a)

* 2 Caines' Rep. 183.

† 1 Ld. Raym. 729. 6 Mod. 258. Wm. Jones, 459.

(a) See Jackson, ex dem. Dunbar and others, v. Todd, (6 Johns. Rep. 257.)