Jackson ex dem. Klock v. Richtmyer , 13 Johns. 367 ( 1816 )

Van Ness, J¿,

delivered the opinion of-the court. The lessors of the plaintiff having deduced a title* to an undivided’ portion of the-lands granted to Van Horne and others, by the letters patent of 1763, are entitled to recover, unless a valid partition has been made of these lands among the proprietors; and-the principal question presented by the case is,, whether sufficient evidence of such partition has been shown on! the part of defendant? It seems to be admitted that a- partition has been' duly made of all the lands described in' the letters patent, -except those Contained in the sixth allotment, comprehending the premises in question; but it is argued that, this allotment is still to be considered as undivided, I am at a loss to' discover any solid-ground for this distinction., The partition was made - under the colonial act of 1762, and all the proceedings to establish a,perfect partition under that act have been produced,-except the ballot book, which cannot, at this day, be found. From the proceedings that have been discovered, and which are set forth in the case, the commissioners* as well as the parties, evidently intended to divide the whole patent; and that they did so divide it, is expressly set forth in their field-book and map; and there’is not a single fact or circumstance, that I have been able to-discover, showing that the sixth allotment- was, not as much the subject of partition as any of the other allotments.. . -That allotment, as. well as the other fiye, .was laid out into lots* and upon the balloting,. No. 1. was drawn to the share df the patentee, Philip Livingston, No. 2. to that of dhraham Van Horne, No. 3. to •that of Mciry Burnet, ¿nd No. 4. (comprehending the premises in question) to that of William Prevosti. -After the commission-' ers had laid out the whole tract into six allotments; and subdivided the' four first allotments into eight lots, .and the remain>'ing two into four lots,' the parties to the' partitión met at the city of New-York, lo'proceed to a ballot pursuant tó the act. By- a written agreement between the proprietors,' and’ the par--. ties to-the partition, on; that occasion, dated the 27th of Novena bier,T764, dt appears that' their respective interests Were ascertained and settled as follows, to wit:1 George Flock, andJ.ellis''r' ■Fonda, owned one of the patentees'1 [shares, (Flock three fourths,, an&'Fonda one fourth there,of,) Philip Livingston three' eighths' of á 'sharé,.: John-Duncan five'eighths, William Livingston three eighths, W. Rutherford five eighths,'making three .fourths1 óf-the whole tract; Mary Burnet, or her heirs, holding the re-.-maining fourth'. The proprietors having agreed “todivide the said patent amongst "them1; into patentee shares, they accordingly drew for-the different shares, when Philip Livingston and John Duncan drew the patentee share that belonged to Ahráham' Van<Horne, William, Livingston and W-. Rutherford the that. belonged to William Prevost, . and George Klock and Jellis Fonda the share that belonged to Philip- Livingston; and they accordingly agree, that whatever lands.shall be drawn by the commissioners to the patentee rights above mentioned, shall belong to, and be the property of, the subscribers” (tó’ the said-agreement) “ in the shares .'above 'specified; and mutually' ágréé to sign releases accordingly.” . It was objected to this agreement, in the course of the argument, that there.was no evidence to show that Jacob G. Flock was authorized to sign the agreement in behalf of his father, George Klock. 1 It 'is true there no express evidence of this fact, but that he was duly empowered to représen! his father,; is most satisfactorily proved .by his subsequent ratifications of this act, to Which I will presently ad-. vert.' By'the map and field-book duly filed pursuant to the colónial partition act, it appears, that “ partition of the said tract. of land,-granted by the letters patent aforesaid, was. made by /:•, Vroman, 2?.- ' Mynderse^ and Joseph R-. Yates, commissioners appointed by. virtue .of the act of the late colony New-York, passed the 3d of January] 1762, and that the ' said map and field-book had been'filed as the law required, on the 9 th of October^ 1764; and that by the, said partition the said tract was,,pursuant to the directions of the said act, divided into six alióte iments, and each of those allotments subdivided into four or eight lots, and the said sixth allotment, each containing 850 acres, and numerically distinguished in such map and field-book from No. 1. progressively ; and that the whole of the said tract was balloted for to the patentee^ named in the said letters patents’’ It further appears by the case that the plaintiff, at the trial, u admitted that lot No. 1: of the sixth allotment, was drawn as and for the share of the patentee, Philip Livingston, and lot No. 3. as find for the share of tlie patentee, Mary Burnet, to which latter lot the plaintiff disclaimed all title.” It is thus clearly shown that a partition, in fact, was made of the whole tract contained in the letters patent; and that George Klock and Jellis Fonda owned* at thé time, but one patentees’ share, being one fourth of the whole tract; and I now proceed, as briefly as the subject will permit, to show that, whatever imperfection may exist in the evidence of a valid partition, under the colonial act, owing to the non-production of the ballot-book, (if, indeed, any such imperfection exists,) it is amply supplied by the subsequent acts of the parties, and particularly by those of George Klock.

It was admitted at the trial, or is proved either by the answref to the bill in chancery, or by other written of oral testimony, 1st; That the lands in the first five allotments always have been* and still continue to be, held according to this partition.

2d.' That all the lots drawn on the said ballot, to the share of the patentee, Philip Livingston, now are, and for a long time have been, held under a title derived from George Klock and Jellis Fonda,

3d. That William Burnet Brown* claiming to be heir at law of Mary Burnet, ratified the partition by selling and conveying to Adam Garlock and others, in 1765, and within a few months after the partition was completed, “ the lots drawn to the share of the patentee* Mary Burnet, in the aforesaid partition, in the five first allotments of said patentand, that Garlock and his co-grantees* the following year, made partition of these lots among themselves, all of which have ever since been held under a title derived from Garlock and his associates.

4th. That, in April, 1766, George Klock and Jellis Fonda entered into a written agreement to divide all the lots drawn by fhem on the general partition, and in strict and exact conform!* ly thereto. By this agreement, Georgetook, among Othei* lots, precisely three fourths-of lot No.'l. in the sixth allotment, and Fonda one fourth and, at this time, no right or title to any other'part of the sixth allotment was‘Suggested, or pretended, ' hy George -Klock -; nor, indeed, Was any such .claim made. .ixntil afteT the time the -Indians left it. . *• ,

- 5th. That, on the. 27th Of. February, 1761 fGe:órge' Klo'ck ■ lied the lastiinentioned agreement into effect,' by releasing té Fonda, bx% interest in the lots therein-mentioned and designated.; and describing the- lands- -released as- hewing been divided'and laid out into lots', in September, 1764, by .Isadc Vronian, Esq., ■One. of the commissioners,- and the surveyor appointed to make-, partition of the land'contained in the patent pf Fan tio'rne and Others, as 'appears'by his map and feld-book, fled in the clerk*® office, in the. county of Albany. ,

■6th. That. George Klock, in July;, 1788,' sold and conveyed ■three fourths of lot No. 1. in the ■ sixth allotment,-to Johanne'é Luke, turdet- which deed it -has been held ever since. Thesé áre some of the many unequivocal áct-s hy Which -the partitioii of 1764 is recognised - and ratified, not only by George Klock§ but by others-of -the' parties to it.. Many more might, be added,; equally explicit and important, were it necessary. From thosé Which have'been adverted to, the authority of Jacob-^G. Klach, to sign his fathers name to the agreement of November, 1767* is placed beyond all doubt. And it is equally clear, that George Klocle. not only admitted, the validity of -the partition of 1764, of the five first allotments, but, also, particularly, thát.of the sixth allotment. A partition thus made, acted, upon, and ratified, and under which rights have been acquired by purchasers, from, the parties to it, ought not how to be disturbed. The court is bound to presume that évéry thing has been done,'which was required to be done, to give it- validity. The partition-,, then, being .fully proved and established, .the lessors of ■ the plaintiff must, fail, inasmuch as the defendant has shown a subsisting title to be -out of them -; and it is, in this respect, chiefly, that the present casé is distinguished from that of Jackson, ex dem. Klock and another, v. Hudson, (3 Johns. Rep. 375.)

The counsel for the plaintiff, however, claims, that the lessors pf the plaintiff are entitled to recover upon their ‘possessory title; and it,- therefore, becomes necessary to say a fexv words, in relation to that point. The possession which has been-attempted to be shown, commenced some time after the revoluiioriary war. It was a mere naked entry, unaccompanied with 'any title, and, in fact, without the colour of title. It may well be doubted, whether this possession was of such a nature as would have conferred any right, even if it had endured twenty years, upon those who took it, or whether it would have taken away any right from the true owner. Within twenty years, however, an action of ejectment was commenced against the persons then in possession, tinder' some of the heirs of George Klock; and the lessors of the plaintiff, in that action, having obtained a judgment by default, turned the possessors out, and entered into possession under" a hab. fac, possessionem. The defendant is a bona fide purchaser, for a valuable consideration, from the persons who thus obtained possession under that judgment. Although it is true, as was said by this court in the case of Jackson, ex dem. Wright and others, v. Deiffendorf & Zoller, (3 Johns. Rep. 269.,) that no right is definitively determined by a judgment in ejectment; yet, it is equally true, that when, a party enters under such a judgment, and then conveys to a third person for a valuable consideration, who enters under his deed, that such an entry aiid possession afford as high and solemn prima facie evidence of right as can well be exhibited; and higher and better evidence of title than the mere naked occupancy of these lands, indisputably belonging to other persons, by the representatives of George Klock. The lessors of the plaintiff, in their answer to the bill in chancery, do not put their right to recover upon the ground of possession. They rely, exclusively, upon the title which they claim to be vested in them, under the letters patent, and that title having failed, they are not entitled to recover at all.

Spencer, J.,

having been formerly concerned for the lessors of the plaintiff, in a suit relative to the same title, did not sit to hear the argument, and gave no opinion in the cause.

Judgment for the defendant.