Brinckerhoff v. Wemple , 1 Wend. 470 ( 1828 )

'By the Court,

Savage, Ch. J.

" I will consider the objections in the order in which they were made. It was objected, that Seymour should not testify as to what lands were paid for, without producing the books of the appraisers. Mr. Seymour’s testimony contains an answer to the objection, to wit, that they had no books of entries. The counsel, however, still insists on the objection, and refers to the several acts of the legislature, by which it is made the duty of the appraisers to make regular entries of their appraisal, with a description of the premises appropriated to the canal, which entries are to be signed by the appraisers. The damages are xo be paid by the canal commissioners; and the fee simple of the premises so appropriated, shall be vested in the people of the state. (Statutes, vol. 4, 203 6.) Admitting that such a book had been in court, I do not see the necessity of producing it by the plaintiffs. Their title to the land being shewn, the defendant’s receipt admitted the receipt of the money, and it was shewn that the lands mentioned in the receipt and in the plaintiffs’ deeds, were the same. The plaintiffs’ right of recovery was made out without Seymour’s testimony, to half of the whole sum at least, prima facie. The object of Seymour’s testimony was, to shew that the plaintiffs were entitled to only half of $348, instead of $403. The book was not wanted for the purpose of specifying the lands paid for; that had been already done by other testimony : the book was, therefore, not necessary.

The next objection is, that the evidence did not support the declaration. In answer to this, it is only necessary to say, that the defendant had received from the state payment for a piece of property, which was owned half by himself and half by the plaintiffs»» Clearly, therefore, half the money which he thus received, was received to the use of the plaintiffs.

The remaining objection is, that they could not sue jointly. The answer to this objection is, that the plaintiffs, both as trustees, constituted but one person, as respected the property in question. They had no separate rights in relation to it, and could no more sue separately, than executors or administrators can sue separately for a debt due them in their representative capacity.

These objections were made upon the trial. On the argument, it was further objected, that both appraisers should have been produced. I have endeavored to shew, that it was not necessary to produce either of the appraisers, to prove either the payment of the money, or the land for which it was paid. The receipt of the defendant, with the explanation given to it, was sufficient to make out the plaintiff’s right of recovery. It was also further objected, that as the canal was finished before the conveyance to the plaintiffs by George Brinckerhoff, the plaintiffs had no right to the money; that George Brinckerhoff only had a right of action which could not be conveyed. The answer is, that the completion of the canal did not divest the former owner of the fee of his lands occupied for the canal. By the act already referred to, the payment of the money seems to be a condition precedent to the passing of the fee from the former owner to the people of the state. The language of the act is thus: “ And the canal commissioners shall pay the damages so to be assessed and appraised, and the fee simple of the premises so appropriated, shall be vested in the people tif this state.” The title of the plaintiffs bears date Aug. 3d, 1823. The payment by Mr. Seymour was Feb. 28thj, 1825. The fee simple of one half was, therefore, in the plaintiffs until the payment of the money, which was long after the title accrued.

Judgment for plaintiffs.