author: Kent, J.

text:
    Jackson, on the demise of G. T. Van Denberg, E. Van Vechten, and W. Elting, against J. L. Bradt.
    If a statute, -without any negative words, declare that all former deeds shall-have in evidence a certain effect, “ provided” such and such requisites are complied with, this does not prevent their being used as testimony in the same manner as if the act had never been passed. The law of the 8th of January, 1762, declaring that every former division of lands, of which there was a map or note in writing under the hands of the proprietors; should be a valid partition thereof provided such map or note be proved before a judge of the supreme court, and a true copy of such map be filed, and such note recorded, does not prevent an antecedent map or deed being read in evidence to prove a partition. Where a decree of the court of chancery has ordered partition, in consequence of rights claimed, the-title of the parties in favor of whom the decree is made, accrues on such decree, and a possession previous to that time cannot be urged as an adverse possession. A tenant at will is not entitled to notice to quit. Tenants in common may make a joint demise in ejectment.
    Ejectment for lands witbin tbe Hosick patent, in Kens-selaer county.
    Gerret Teunis Van Vechten, ancestor of Johannes Van Vecbten and Valkert Van Vechten, was one of the four persons to whom, in June, 1688, tbe Hosick patent was granted. In 1732, it was by tbe owners divided and laid out in lots. Johannes entered on one fourth, and on tbe 30th of October, 1741, by deed of this date, granted to bis three sons-in law, Bernardus Bradt, Hendrick Breese, and Barent Yan Beuren, as joint tenants in fee, one fourth of the undivided lands in the said patent. In 1749, Hen-drick Breese died, On the second of May, 1753, the proprietors of the patent executed a deed confirming the former division, and annexing to each lot the woodland behind it. In the beginning of 1754, Barent Yan Beuren died, leaving Bernardus Bradt the only surviving grantee, named in the deed of Johannes Yan Yechten, *executed in October, 1741. On the 27th of May, 1754, a division was made of the patent by one Bleecker, according to which lot No. 38 was allotted to the representatives of Gerret Teunis Yan Yechten, and a map of the patent made out according to this division, in consequence whereof, Bérnardus Bradt entered and exercised acts of ownership. To the map thus made, was subjoined a partition deed, dated on the 27th of May, 1754, executed by James Yan Cortlandt, Hendrick Yan Ness, by Cornelius Waldron, his attorney, Bernardus Bradt, and John Babtist Yan Rensselaer, the proprietors of the patent, in which, after confirming the divisions of 1732, and 1753, they fully establish the map of Bleeker, covenanting “ for themselves, their heirs and assigns, that the division so made and done, should, from thenceforth, and for ever after, stand and remain.” In 1759, or 1760, Bernardus Bradt authorized John W. Groesbeck to give permission, on his behalf, to persons who might apply to cut saw-logs on No. 38, in which the premises in question lie. In June, 1763, the partition deed was proved before Robert R. Livingston, one of the judges of the supreme court, and from the endorsement of Bleecker upon it, lot No. 38 appeared to have fallen to Bernardus Bradt as representative of Gerret Teunis, and had, together with all other allotments, gone from the time of the partition deed, in conformity to its provisions. In 1771, or 1772, Bernardus Bradt settled the defendant, his son-in law, John L. Bradt, upon the land in dispute, in lot No. 38, giving him leave to occupy and possess it. This be accordingly did down to the day of action brought. In 1786, or 1787, Bernardus Bradt died, leaving six children; namely, Daniel B. Bradt, John B. Bradt, Hendrick Bradt, Grerret Teunis Bradt, Elizabeth, the wife of John L. Bradt, and Mary, the wife of Thomas Lotheridge; who, in March, 1797, by a decision of the court of errors then made, were ordered to convey in severalty to Grerret Teunis Yan Yech-ten, Cornelius Yan Denberg, and eleven others, (the representatives of Yalkert Yan Yechten,) among whom were all the lessors of the plaintiff, one moiety held by them under the grant of 1741, according to the respective ^rights of the parties, and those claiming with them, as set forth in their bill of complaint, under the will of Yalkert Yan Yechten, one of the devisees named in the will of Grerret Teunis Yan Yechten. In pursuance of the order thus made, the parties therein directed did, on the 15th of February, 1798, convey one undivided moiety of the lands, which they, as the representatives of Bernar-dus Bradt, held under the grant of Johannes Yan Yechten, to the grantees named in the decree. In 1799, a partition was made under the act of the legislature, between the heirs of Bernardus Bradt and the representatives of Yal-kert Yan Yechten, on which lot No. 88 was drawn to the share of the representatives of Bernardus Bradt. In November, 1800, all the representatives of Bernardus Bradt, excepting the defendant and his wife and Hendrick Bradt, executed to the persons to whom the conveyance had been ordered by the court of errors, a conveyance for lots No. 1 an;d 2, in the eleventh allotment of lot No. 88 the grantees of which last-mentioned grant, on the 19th of May; 1801, by deed of that date, demised lots No. 1 and 2, in which the premises in question are contained, to all the lessors of the plaintiff excepting Lena Yan Yechten. At the trial of the cause, before Lewis, Ch. J., at the Bensselaer circuit, in May, 1802, the plaintiff gave in evidence the deed of Johannes Yan Yechten, &c. down to the partition and map of the 27th of May, 1754.

      To the admission of this tbe counsel for tbe defendant objected; 1. Because it appeared that Henry -Yan. Ness, one of the proprietors, signed by attorney, and no power of attorney was shown ; 2. Because the deed was a mere covenant, and did not contain tbe necessary granting words, to sever the eslate before held in common ; 3. Because it did not appear that tbe map bad been filed, or tbe certificate of proof recorded.
    These objections being overruled, tbe plaintiff went on and gave in evidence tbe possession, according to tbe map, tbe decision of tbe court of errors, the subsequent conveyances, and tbe possession of the defendant, who, on bis part, offered the partition of 1799, and that lot No. 38 was drawn to the share of the representatives of Bernardus Bradt: he also offered to prove his entry into possession of the premises, thirty-three years *ago, under the permission of Bernardus Bradt, his father-in-law, and a continuance of that possession from its commencement down to the day then present. This the court overruled, on the ground, that the plaintiff’s right of entry accrued only from tbe time of the decree in chancery, on which the appeal in the court of errors had been brought, and, therefore, the possession of the defendant could not run against it. The defendant then insisted, 1. That if his possession was not' allowed, notice to quit was necessary; 2. That he -was entitled to compensation for bis improvements ; 3. That there being only two demises in the declaration, one a joint demise from Gerret Teunis Yan Denberg, Ephraim Yan Yechten and William Elting, the other a demise from Lena Yan Yechten solely, the plaintiff had not shown such a title in his lessors as would entitle him to recover. These objections being also overruled, tbe jury found for the plaintiff a verdict for ten-twelfths of the premises in question. Application was now made for a new trial.
    Woodworth, (Attorney-General,) for the defendant.
    The map of 1754 ought not to have been received in evidence. By tbe 6tb section of tbe act of January, 1762, yol. 1; Colon. Laws, 408; Smith, vol. 2, p. 242, it is declared, that every former division of lands, of which there was a map, or note in writing, under the hands of the proprietors, should be a valid partition, provided such map, or note, be proved bofor'e a judge of the supreme court,'and a true copy of such map filed, and such note recorded. Neither provision was complied with, and therefore the evidence was improperly received. Had Bernardus Bradt been the plaintiff, notice to quit must have been given, as the entry of the defendant was under his permission. At the time this permission was given, Bernardus Bradt was the sole legal owner of the estate. The lessors coming in by the decree in chancery into his estate, must take it with all those equitable claims and rights to which it was subjectin the hands of Bernardus. Of these, notice was one. But if they deny any privity to his estate, then our possession must avail, for the right of the lessors did not accrue on the deree; they were only settled and ascertained by it. Indeed the contrary is the fact; .*the decree was founded on, and arose from, their rights, against which we show a possession of thirty-three years. That tenants in common cannot make a joint demise is a settled point. 2 Wils. 232. Heatherly, on the demise of Worthington and Tunnadine, v. Weston and others.

    Henry, contra.
    Had the statute referred to, contained any negative words, that “ without such recording,” &c. the map should not be evidence, the arguments on the other side would apply. The map and deed were not offered as testimony under the act; but in the same manner as an old terrier, or survey, having weight from its antiquity. This circumstance gives validity to the deed itself; for after such sucb a lapse of years, a power of attorney to execute must be intended, as possession bad gone according to the instrument. Doe v. Prosser, Cowp. 217.  On the point of our right of entry being tolled, it is sufficient to say the possession to effect that must be adverse. Here both parties derive under Bernardas Bradt, and our title did not accrue till the decree in 1797. Notice to quit was perfectly unnecessary. To be entitled to it, there must exist the relation of landlord and tenant between the parties, by reserving a rent. None such is shown here. Woodfall’s Law of Landlord and Tenant, 160. Besides, the offering to set up an adverse title did away all right to notice, had any ever subsisted. No force can be allowed to the objection against the demises. The action itself is a mere form. The court, therefore, will so direct it, as to be entirely conducive to the justice of the case.
    Woodworth, in reply.
    It is conceded, that had the statute contained negative words, the map could not have been received. We contended the proviso was equivalent; otherwise it is totally inoperative. As to the reservation of rent, it certainly is not necessary that it should be made, to create a tenancy at will; and what formerly were tenancies at will are now held to be tenancies from year to year. Notice, therefore, was indispensable.

       See Jackson, v. Bowen, 1 Caines’ Rep. 360, n. (a.)

       A further point was made on the subject of compensation for the ?m provements, but as the court did not nsake any decision upon it, and ordered a further argument on that question, :t is unnecessary now to detail what was urged on the subject.

         Thirty-six years’ exclusive possession by one tenant in common, held sufficient to warrant a presumption of ouster of the other. See Warren ex dem. Webb v. Greenville, on a recovery 40 years old, the court presumed a surrender of the life estate to make a good tenant to the praecipe. But in Goodtitle v. Chandos, 2 Burr. 1012, where the possession had not gone according to the deed, the court would not presume a surrender. The rule is, that where there is a fact to warrant a presumption it will be made; but there must be some circumstance oui of which the presumption is to arise. This rule rests on the maxim of ex nikilo, nihil sit. Van Dyck v. Van Beuren, 1 Caines’ Rep. 90, n. (a,) to which, after the principle for which Keen v. Earl of Effingham, 2 Stra. 1261, is cited, add, “ so where a will was adduced to prove a tenancy in common, but abandoned as prooij on account of the insanity of the testator being established, the door was shut against the presumption of any other title.” Jackson v. Vosburgh, 9 Johns. Rep. 210.

   Kent, J.

delivered tbe opinion of tbe court. IJpon this case several questions bave been raised on tbe part of tbe defendant, on a motion for a new trial. 1. It was contended tliat tbe map and deed of partition were not admissible, *because a copy of the map had not been filed, and the note of the division recorded. The act of tbe 8th January, 1762, s. 6, declares, that every former division of lands, of which there was a map, or note in writing, under tbe bands of tbe proprietors, should be a valid partition thereof, provided such note be proved before a judge of tbe supreme court, and a true copy of such map be filed and such note recorded. If the condition on which all such previous partitions were declared valid, be not performed, the transaction is left as it was before, and is to be considered independent of the act. The division, and the deed between the proprietors by which they covenanted to abide by it, and the separate possessions taken in pursuance of that division, were sufficient to sever the tenancy in common, which consisted in nothing but a unity of possession. The parties became concluded and bound by that act, and the map and deed being proved before a competent officer, and possession having gone accordingly, they were admissible as legal evidence in the case.

2. .Another objection taken was, that the defendant was entitled to notice to quit. It has been frequently decided by this court, that a mere tenant at will does not require notice to quit. The circumstances under which the defendant was placed on the premises, prove him to have been strictly a tenant at will. There were no terms prescribed. nor any rent reserved, or demanded, or paid. The defendant ivas merely directed to occupy the land, which gave him more the character of a bailiff than a tenant. There is nothing from which we can consider this to have been a holding from year to year. The reservation of an annual rent, is the leading circumstance that turns leases for uncertain terms into leases from year to year. This was, therefore, not a ease requiring notice to tbe defendant.

3. The last objection made by tbe defendant to the verdict was, that no title corresponding with a joint demise by three of the lessors was shown. The title shown proves that the lessors of the plaintiffs are all tenants in common. If this objection be well made, the plaintiff is still entitled to recover the proportion of the premises belonging to the lessor, who demised separately, and the recovery must be ^modified accordingly. The point has been frequently declared and adjudged, that tenants in common cannot make a joint demise, and yet the books frequently speak in terms inconsistent with this position. Littleton says, that two tenants in common may make a lease of their tenements to another for a term Of years, rendering rent, and may, in consequence thereof, have a joint action against the lessee for the rent. So it is said that théy may join in' a lease to a third person, and that lessee make a lease to try the title; and again, one tenant in common may make a demise of the whole premises, and under that demise may recover an undivided moiety. The case of Heaiherly, on the demise of Worthing' ton and Tunnadine, v. Weston and others, which was the latest and most solemn decision against the competency of a joint demise, assigns as a reason, that the estates of tenants in common are several and distinct, and there is no privity between them. But it appears to me, there is the very privity requisite in this case to make a lease — the unity of possession. The lease is only a transfer of the possession which is common between them. It is no transfer of the rights of property, which is distinct, and in which they truly have no privity. The action of ejectment is founded on the fiction of an ouster of possession merely, and I see no reason why tenants in common may not act jointly in disposing of their joint possession. If they can in any case make a joint lease, as-the books admit, tbeir joint lease in the present case is sufficient, because the fiction is answered, which only requires a lease competent to transfer the possession for a giren term of years. And since this is a r.ere fiction, and the whole action liberally considered, and the recovery, though it be lor the possession onljq yet it does, in effect, enure to each lessor, according to his title, we ought to give effect to the demise, if, by any possibility of law, it can be adjudged good. If the action of ejectment be considered distinct from the fiction of lease, entry, and ouster, two tenants in common could not join at all in the action ; for it is a general and settled rule, that in all actions real and mixed, tenants in common must sever, because they have several freeholds, and claim by several titles. They cannot, therefore, join *in a writ of right, or in an action of assize: each must have a separate assize for his moiety. Hence, Coke lays it down, that tenants in common shall not join in an ejections jirmce, nor in a writ of ejectment de garcl, or a quaere ejecit infra terminum &c., for these actions concern the right of lands, which are several; but since the introduction of a fictitious lessee, tenants in common have been permitted to join in an action of ejectment, and the practice has been-only to require a fictitious lease 'from each tenant in common. The old rule is already completely evaded by means of the fiction. In opposition to Littleton and Coke, it has long been the established practice to permit tenants in common to join in the mixed action of efec-tione firmae, and when that action has become in form only a mixed action, and in substance a real action, for trying the title of the fee. Having carried the fiction thus far, we ought not now to suffer ourselves to be entangled in this very fiction, and sacrifice substance to form. If two tenants in common are competent to join in the lease or transfer of their joint possession, it is sufficient; and for these reasons we must hold, even in opposition to several authorities, that it has now become immaterial whether tenants in common declare on joint or separate demises ; and accordingly we are of opinion, on all tbe points, tbat the defendant take nothing by his motion.

New trial refused.

         The English decisions do not seem to sanction the full extent of the position in the text, yet they avail themselves of the most trifling circumstance to obviate the formal objection of the demise being joint, when the title is several; therefore payment of one entire rent to the agent of two trustees, appointed at several times, estops the tenant from showing, in an ejectment on a joint demise, that the lessors are tenants in common. Doe v. Grant, 12 East, 221. Though several parceners constitute but one heir, and the entry of one for a condition broken enure to the benefit of all, she may, on her sole demise, recover her own share. Doe v. Pierson, 6 East, 113. For the sole demise of a joint tenant to the plaintiff in ejectment severs the joint tenancy, and entitles to a recovery for the lessor’s proportion. Denne v. Judge, 11 East, 287; Roe v. Lonsdale, 12 East, 39. If all the joint tenants make several demises to the plaintiff, he is entitled to recover the whole, for all the estate is vested in him. Doe v. Read, 12 East, 57.

       As to notices to quit, cases on the subject collated and compared in Jackson v. Miller, 1 Cow. 747. As to tenant at will, see Nichols v. Williams, 8 Cow. 13; Jackson v. Vincent, 4 Wend. 633; Jackson v. Salmon, 4 Wend. 617; Rowan v. Lytle, 11 Wend. 613; Bradley v. Covel, 4 Cow. 349; Phillips v. Covert, 1 J. R. 1; Joes v. Joes, 13 J. R. 235; Young v. Ellis, 13 J. R. 118; Jackson v. Aldrich, 13 J. R. 106; Jackson v. Babcock, 4 J. R. 418; Van Alen v. Rogers, 1 J. C. 33; S. C. 2 C. C. E. 314; Jackson v. Bradt, 2 Cai. R. 169; Jackson v. Wilson, 9 J. R. 267.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Clinton against Porter.
    If on demand of oyer, that given he different from that set out, the plaintiff cannot, without rule or notice after service of a true oyer, sign judgment by default. If it be done the court will set it aside, with costs.
    In debt on a bond, the plaintiff set out the real oyer of it. The defendant then demanded oyer, which was given to him variant from that set out, on which the defendant pleaded non est factum. The plaintiff then, without any rule or notice, served a fresh oyer, setting out the bond and condition truly; twenty days having elapsed, he signed judgment by default.

      Mmott, on affidavit disclosing the above facts, moved to set aside the default and subsequent proceedings.

      Van Vechten, contra,
    insisted that the case was within the eighth rulé of April, 1796, which allows of amending declarations, &c., and that all permitted by that rule might be done of course.
   Per Curiam.

Take the effect of your motion with costs.

Motion granted.

       Where the oyer varies from the instrument declared on, the defendant may set it forth in his plea and demur, or he may, without setting it forth, plead non est factum, and avail himself of the variance at the trial. Ehle v. Purdy, 6 Wend. 629. After twelve days demand of oyer by the plaintiff of a release pleaded by the defendant, he may treat the plea as a nullity and onter the defendant’s default. Field v. Goodman, 4 Wend. 214. A small difference between the oyer of a bond and the declaration is not regarded. Henry v. Brown, 19 J. R. 49. The defendant has the same time to plead after delivery as at the time of demand. Mu'holand v. Van Tine, 8 Cow. 132; see Varick v. Bodine, 3 Hill, 444.


author: Lewis, Ch. J.

text:
    *Jackson, ex dem. Quackenbush, against Dennis.
    The boundaries of the Hosick patent are according to the survey made by John-It. Bleeeker in 1154, S. P. 2 Johns. Rep. 29t; 5 Johns. Rep. 496 606; 9 Johns. Rep. 102.
    This was an ejectment for lands lying in the county of Washington, to which the plaintiff claimed title under a royal grant, dated in 1770, and the defendant under one of 1688, commonly called the Hosick patent. The only question between the parties was, what is the true construction of this latter grant as to boundary ? The description in the patent is: “All that tract of land situate, &c.v on both sides of a certain creek called Hosick, beginning at the bounds of Schackook, and from thence extending up the said creek, &c., being in breadth, on each side of the said creek, two English miles; that is to say, two English miles on the one side of the said creek, and two English miles on the other side of the said creek, the whole breadth being four English miles."
   Lewis, Ch. J.

delivered the opinion of the court. This creek is so situated that it is impossible to run parallels to it, which shall be always two miles distant from it in its whole extent. It becomes, then, a pretty nice question what' principle shall be adopted in the locating of the grant. Several ingenious ones have been proposed, all of which are liable to exception. For the plaintiff it is insisted that the most rational, correct, and advantageous one to the crown, would be to make a traverse of the creek and taking such line for a base, to run parallels at two miles distance on each side. The objection to this is, that such parallels would, in many points, approach nearer to, and in others recede further from, the creek than two miles.

For the defendant it is contended, that the principle adopted'by John R. Bleeker, the surveyor, who run out the tract in 1754, is to the full as correct, if not more so, than the former. The mode he adopted was, so to run the outlines as to be enabled, at every point in them, to strike the creek at two miles distance in some one direction, though he might be nearer to or further from it than two miles, in other directions. This mode was considered by three surveyors of intelligence, who were examined as witnesses on the trial, to be the most practicable, and bet* ■ ter calculated than any other to satisfy the words of the patent. These opinions *have considerable weight with us; and when it is considered that tbe lands in tbis patent have been uniformly settled agreeably to that survey, and that the premises in question have been so held for much more than 20 years, we think we ought to have stronger reasons than any that have been offered, to induce us to disturb such ancient possessions. We are, therefore, of opinion, judgment be entered for the defendant.

Judgment for the defendant.

       This decision was delivered in November, 1803, an I ought to have been reported as of that term.


text:
    Jackson, ex dem. Van Slyck and others, against Son.
    When a defendant cross-examines a plaintiff’s witness, he makes him his own. Therefore, parol testimony of a deed or will, disclosed by such witness, in the possession of the plaintiff, cannot be received without notice to produce it.

    Lsr ejectment on a motion for a new trial. It appeared that at nisiprms\ the plaintiff claimed by descent. On the cross-examination of one of his witnesses by the defendant, it came out that the ancestor had made a will, of which the judge, vho heard the cause, admitted parol testimony, without any notice to produce it having been given.

         The old rule in Westminster-hall, and which by a very learned judge has been called '‘the sensible one,” was, that of an instrument coming from the opposite side, after notice to produce it, proof from the party who called for it was not required ; the very circumstance of its being with, tho other side, being prima facie evidence of due execution, and from its being in such custody the probable ignorance, in the party noticing, of the names of the witnesses. Rex v. Middlezoy, 2 D. & E. 41. But in Gordon v. Secretan, 8 East, 548, it was ruled that a party calling for a deed from the opposite side, must prove it in the same manner as if it had come out of his own possession ; and the practice extends not only to sealed, but unsealed instruments. Wetherston v. Edgington, 2 Camp. 24 A notice to produce papers, extends to the time'of trial, and is not confined to the circuit or sittings for which the cause iias been noticed for trial. Jackson v. Sherman, 6 Johns. Rep. 19.

   Per Curiam.

A new trial must be awarded with costs to abide the event. "When the defendant cross-examined, be made tbe witness as much bis own as if be bad bimself called him. He, therefore, could not introduce through Him. any proof, which would not have been legal, had the witness been originally produced on his behalf. In Jackson, ex dem. Van Rensselaer v. Clark, April term, 1801, the same point was ruled. The judge, therefore, was clearly wrong in admitting parol proof of a will, as the party did not show any notice on the opposite side to produce it.

New trial.

PROMOTIONS.

Kent, J. Chief Justice, vice Lewis, elected Governor. Daniel D. Tompkins, Counsellor at Law, to the office of Judge.

         The English courts adopt another principle; they consider a witness called by the plaintiff as his witness, even after a cross-examinatioD, being dismissed, and called back by the defendant. Dickinson v. Shee, 4 Esp. Rep. 67.


author: SpeNCEr, J.

text:
    Lawton and others against The Commissioners of Highways for the Town of Cambridge, in Washington County.
    A certiorari lies to the judges of the common pleas, on an appeal to them, from the commissioners of highways. On a return by the judges to such a certiorari, not stating what nroceedings were had before the commissioners, the intendment of law ii, that they were regular. What is returned without being required and no* asserted as a fact, but merely as matter of belief and information, is irrelevant, ard not to be regarded If the return state a road to have been laid out, U will he presumed it was -of the proper width, unless the contrary nppect.
    On certiorari to three of tbe judges of the common pleas of Washington, to return an appeal to them from tbe determination of the commissioners of highways, for the town of Cambridge, “ and also the decision, judgment, process, and proceedings of tbe same, with all things touching the same,” the return stated tbe appeal to have been on tbe laying out-a public road or highway through part of tb * town of Cambridge; it then set forth the minutes, or memorandum, as it was termed, of the laying out, by precise courses and distances ; but the width of the road was not given, nor was it specified whether it ran through-improved or unimproved land; -neither did it mention that it was laid out on the request of twelve freeholders under oath. This memorandum was signed by the commissioners, and directed to the town clerk, requesting him to record the same as a public road, and to it another memorandum subscribed by the same commissioners was subjoined, in the following words: “ Likewise a piece of road south of Mr. William Hill’s dwelling-house,” &c. describing the courses and distances, but ^without specifying any request to record it, either as a public or private road. The return farther stated that the judges, according to the act of the 8th of April, 1801, (1 Rev. Laws, 588,) met on this appeal, and after hearing reasons for and against the road, affirmed the determination of the commissioners ; adding, however, that when this was done, they were n )t informed or advised that the highway was laid out though a garden, which had been cultivated as such for at least four years, without the consent of the owner (sec. 15,) thereof, which had been since communicated to them, and which they believed to be true.
    To this return the plaintiff assigned the following errors: 1. That it did not appear that twelve freeholders had certified, under oath, that the road was necessary; 2. That the commissioners had not caused the laying out to be recorded; 3. That it did not appear whether the road was laid out as a public or private road; 4. That from the return of the judges, it appeared that the road was run through a garden, improved as such more than four years; 5. That the width of the road was not stated, which ought to be done with definite boundaries.

      Foot, for the defendants.
    Before entering into the discussion of the errors assigned, it may be well to observe, tbat by the 2d section of tbe act, under which the proceedings complained of have taken place, the decision of the, judges of the common pleas is made conclusive. It may be questioned, therefore, whether this court, in the present instance, has j urisdietion.
    Kent, Ch. J. We will think of that matter; in the mean time let the argument proceed.

      Van Vechten, for the plaintiffs.'
    By the last proviso of the 15th section of the act to regulate highways, it is ordained, “ that no road shall be laid out through any improved land,-without the consent of the occupant, unless upon the application of twelve respectable freeholders of the town, certifying on oath that such road is necessary and proper.” This regulation, it appears from the return, has not been complied with. As the power by which it was to be carried into effect is a special delegated power, it must be strictly pursued, and so shown to the court.' The same observation applies to the 2d and 3d exceptions. The direction to record is confined to the first road, and cannot extend to the second; for as the whole proceeding is *in deregation of the rights of individuals, nothing can be taken by way of intendment. The importance of stating the nature of the road, whether private or public, is manifest from the 17th section of the act; the first are to be not more than three, the latter not less than five, rods wide. On the face of the return it appears that the road was laid out contrary to law. It is expressly stated that the judges knew not, till after confirmation of the acts appealed from, that the road went through a garden improved for more than four years. Had the requisites of the act been complied with, this must have appeared. It is plain, then, that without adhering to the' directions of the statute the commissioners have laid out a road, infringing on private rights, and contrary to the act For these reasons we contend tbe judgment must be reversed; besides, tbe commissioners’ proceedings are not returned.

      Foot, contra.
    Tbe return made by tbe judges oarriea a spirit of partiality.
    KENT, Cb. J. No imputation can be received against inferior magistrates, unless they stand charged with improper conduct. They are not bere to answer for themselves. Tbe only question is, are tbe proceedings regular or not ?

      Foot. Tbe judges are not bound to return any thing which was not before them ; therefore tbe -application of twelve freeholders, &c. and all that constituted grounds for the commissioners to proceed, need not appear. From tbe face of the return it is evident the road laid out is ordered to be recorded as a public road. Tbe direction for the latter is, that it shall be “ likewise,” which is as much as to say, in the same manner as the former. It cannot be intended from the record, that the road went through a garden. If the proceedings do not show intrinsic error, it will be presumed they are correct. The law prescribes the width of the road, and till the contrary appear, the infe-renceunust be, that the directions of the statute have been complied with.

      Van Vechlen, in reply.
    The reasoning of the opposite side is in effect this, that the court must decide on what is, from what does not appear; therefore a compliance with the act must be presumed, because it is not shown. This is contrary to every principle relating to inferior jurisdiction.
   SpeNCEr, J.

delivered the opinion of the court. It is made a question, whether a certiorari is grartable to remove into this court these proceedings, the statute baying declared the decision of the ^'judges of the common pleas, on an appeal made to them, to be conclusive.

It is a position beyond contradiction, that the king’s bench, in England, (and this court is clothed with the same common law authority,) has jurisdiction, and may award a certiorari, not only to inferior courts, but to persons invested by the legislature with power to decide on the property or rights of the citizen, even in cases where they are authorized by statute finally to hear and determine. 4 Hawk. 144.

A certiorari has been held to lie to commissioners of sewers. In the case of Cardiffe Bridge, 1 Salk. 146, and 1 Ld. Raym. 580, a certiorari was granted to remove certain orders of justices of the peace, made pursuant to a private act of the parliament, for repairing the bridge; and it was there decided, that wherever new jurisdictions are. erected, be it by private or public act, they are subject to the inspection of the king’s bench by writ of error, certiora/ñ and mandamus. The authorities to this point are so numerous and uniform, that it cannot be necessary to enlarge. The necessity of a superintending power to restrain and correct partialities and irregularities which may be com-, mitted by inferior officers, is so obvious and indispensable, that the court ought by no means to deny themselves a jurisdiction of such salutary influence.

Though the general power of the court is indisputable, there are cases where they will not interfere. In the case of a poor rate, they will refuse the writ; as also in the assessment of the land tax, from a regard to the public inconvenience. The King v. King and others, 2 D. & E. 235. In cases, too, depending wholly on the discretion of persons authorized to do an act, this court hath refused to interfere; I allude to an application made for a mandamus to the commissioners of highways of Rhynebeclc. There the court perceived that its interference would be nugatory, because the commissioners had a discretion to lay out, or refuse to lay out, tbe road applied for. The present is a different case; the regularity of the proceedings is questioned, and most certainly the court cannot want jurisdiction to inquire into it, when a freeholder shall apply to them not to be disturbed in his freehold, but by proceedings conformable to law. The answer to the first exception is, that the certiorari having been directed to the judges of the common pleas, the court cannot require or expect from them a return of any proceedings not before them. The application may have been made by *the twelve freeholders, and still the judges have no knowledge of the fact: in our opinion, their authority to hear the appeal was confined- to the merits alone — the fitness or unfitness of laying out the road. Hence, on this return, to intend that the proceedings before the commissioners were irregular, merely because the judges have not returned them, would be unreasonable and unwarrantable.

The return answers both the 2d and 3d objections; the road was directed to be recorded, and was laid out as a public road.

As to the 4th objection, the return made by the judges, relative to the garden, is not to be regarded, for two reasons : 1. It is not asserted as a fact that the road ran through a garden improved four years: 2. It is inserted, without warrant, not being ordered to be returned, and is not to be regarded. 2 Salk. 492.

As to the 5th objection, the 18th section of tne act requires that all public roads, to be laid out, shall not be less than four rods. Where the commissioners are silent with respect to the width, in our opinion the court ought to intend that the road is of that width. We think, therefore, the proceedings ought to be affirmed.

Judgment o” affirmance.

       See the ease of People ex rel. Woodward v. Covert, 1 Hill, 614; Allyn v. Commissioners of Highways in Schodack, 19 Wend. 342; see (sess. 36, c. 33, N. R. L. 232,) Commissioners, &c. v. Claw, 15 J. R. 537.


author: KENT, Ch. J. LIVINGSTON, J. Spencer, J.

text:
    Jackson, ex dem. Dunbar and Thorn, against Todd.
    A conveyance of lands adversely held is void, though the title under color of which the person holds may he bad.
    This was an action of ejectment to recover lot 25, in the town of Marcellus, and tried before Mr. Justice Thompson, on the 25th of June, 1803, at the circuit court held in Onondaga.
    The plaintiff deduced his title from "William Dunbar, one of the lessors, a soldier in the revolutionary army, and' to prove it, adduced, first, the patent from the state for the lands in question, dated the 8th July, 1790. Then a deed of the 8th March, 1784, from Dunbar to Zebulon Mercy; another of the 23d June, 1794, from Mercy to Zephaniah Platt; and a further deed of the 5th September, 179.7, from Platt to William Thorn, one of the lessors of the plaintiff, which last, like all the others, was duly acknowledged and recorded.
    • On the part of the defendant there was given in evidence a deed from William Dunbar, the soldier, to Isaac Brooks, for the lands in question, dated the 12th September, 1791, registered ^according to law, and proved at the trial by one of the subscribing witnesses. A conveyance duly acknowledged and recorded was then offered, dated the 10th of December, 1794, from the executors of Brooks to Benjamin Isaacs, in consideration of 240i. This testimony was objected to, but received. After which it was proved that the defendant entered on the premises about 8 years antecedent to the trial, (some time in 1795,) when one Cady was upon the lot in question, had made some improvements, and claimed possession. That the defendant purchased ■ of Cady the possession, excepting where the actual improvements were made, and that the places where those improvements were made are now held by one Taylor, who holds under William Thorn, the lessor of the plaintiff. Todd bad beld bis possession under Isaacs for about seven years, and bad made very considerable improvements.
    On these facts tbe defendant contended that bis possession being adverse to tbe title of Zepbaniab Platt, on tbe 5tb of September, 1797, no title passed by tbe deed of Platt to the lessor of tbe plaintiff.
    The judge, however, charged that tbe executors of Isaac Brooks showed no power or authority to convey real estate, and tbe inference of law would therefore be, that tbe title of Brooks (if be bad any) would descend to bis heirs, and that Benjamin Isaacs derived none from this deed, sufficient to qualify the possession of tbe defendant as adverse to tbe title of Zephaniah Platt, at tbe date of his deed to William Thorn, or prevent its operation to vest a title in him.
    Upon this charge tbe jury found for tbe plaintiff. Tbe cause now came up on a case made, subject to tbe opinion of the court: if it should be for tbe plaintiff, then tbe verdict to stand, if not, to be set aside and a new trial granted.
    Emott, for tbe defendant.
    In ejectment tbe plaintiff must recover on tbe strength of his own title. Tbe question, therefore, in tbe present case, will turn on tbe conveyance of Platt to Thorn, on the 5th September, 1797. For, if that be good and operative, tbe verdict is right. But at tbe time when it was executed Cady was in possession, and this possession purchased by tbe defendant who beld under Isaacs. It is plain, then, that anterior to tbe deed from Platt, there was a possession adverse to him; if so, bis conveyance did not pass any thing. Van Dyck v. Van Beuren & Vosburg, 1 Caines’ Pep. 90. It is not necessary to enter into tbe learning on disseisins, as our possession was adverse, But if it was, I*should contend we gained a fee; for whoever enters under color of title, by grant, acquires, against any other claimant* a fee by disseisin. Buckler’s Case, 2 Rep. 55.

      Harison, contra.
    There is no dispute respecting the doctrines of adverse possession, or disseisin. To effect the one, or create the other, there must be an adverse entry and ouster under claim of title and right of freehold; because a mere entry, without an idea of being considered as proprietor, is a holding under the rightful owner. Such, we say, was the entry of Cady, and such the possession gained from him by the defendant. The subsequent act of Todd, supposing him either by attornment or deed to have acknowledged the title of the executors of Brooks, as against us, in inoperative; for, after a possession under the lord of the fee, no act by the tenant and a third person, though claiming title, can affect the owner under whom the original entry was made. Blunder v. Baugh, Cro. Car. 808, 304.

      Mmott, in reply.
    Though no title is shown in Cady, yet the improvements were of a nature to evince a claim of property. This is sufficient to prevent the operation of Platt’s deed.
   KENT, Ch. J.

We are of opinioiMhat the evidence established an adverse possession in the defendant at the time of the execution of the deed from Platt to Thorn, The defendant was then' in possession, holding under B. Isaacs, who claimed title under a deed for a valuable consideration from the executors of Brooks. This was a claim under color of title adverse to the plaintiff’s title, and sufficient to destroy all presumption that the defendant was in possession under the plaintiff, or held in obedience to his right. His possession was the possession of Isaacs, who claimed the lot as his own. We have repeatedly decided that a conveyance of lands held at the time adversely was void. Brinkerhoff ads. Jackson, ex dem. Jones and others, April term, 1802. Also Caines’ Rep. vol. 1, p. 90, and that adverse possession was equivalent to 'ouster, and made the statute of limitations to run. Jackson, ex dem. Putnams, v. Bowen, November term, 1803, 1 Caines’ Eep. 558. Jackson, ex dem. Gansevoort and, others, v. Parker, April term, 1802. The verdict ought, therefore, to be set aside for misdirection, with costs to abide the event.

LIVINGSTON, J.

In determining this cause it becomes necessary to ascertain the nature of the defendant’s possession, on the 5th of September, 1797. If it were then adverse to the title of Platt, *nothing passed by his deed to Thorn, and a new trial must be had. To settle this point it cannot be useful to examine very minutely how or with what intentions Todd or Cady came into possession. If the premises were then vacant, and Cady came in as a mere occupant, or intruder, without any claim of title, this alone would not prevent, an alienation by the real owner, or be regarded as a holding adverse to his title; but, because Cady came in without title, why should not he, or his alienee, be permitted, .to acquire one as soon as it was discovered where it resided ? or, because they had entered as trespassers, were they always to continue such, and that against their own inclination? It will be better, and we shall be less liable to error, which unnecessary refinement too often produces, if, instead of inquiring how Todd first acquired possession, we confine our attention to his situation and the manner of his holding at the date of Platt’s deed. If he then held in opposition to him, or under a title different from, or hostile to, his, this conveyance was void, and Thorn could take nothing by it. However the defendant may have obtained possession, which, by the by, was fairly, that is, by purchase of Cady, it is certain that at the period we are speaking of he had also bought of Isaacs, who was a purchaser for valuable consideration of the executors of the last will of Brooks, who was the grantee of Dunbar, under whom the plaintiff likewise claims. Whether these executors were empowered to sell, or whether the title of Brooks had been legally transmitted to Todd, is very unimportant. It is sufficient that he claimed under a title which was opposed to the pretensions of Platt, which were founded on a deed from a different grantee of Dunbar. As the defendant, then, at this time, was not only in actual possession of these lands, but held them by title derived from the patentee, which be thought a good one, under him, that is, as his tenant, it is impossible, without perverting the most common terms, to give to such an occupancy any other appellation than that of an adverse possession. -He held by a title different from, and in defiance of, the plaintiff’s. If this be not an adverse possession, what circumstances can ever make one ? There must, therefore, be a new trial, with costs to abide the event of the suit.

Spencer, J.

A motion has been made in this case for a new trial, on a supposed misdirection of the judge who tried the cause. The only question arising is, whether the possession held by Todd, on the 5th of September, 1797, was such, as that, in ^judgment of law, the deed from Zephaniah Platt was operative to convey his title to William Thorn. It has been adjudged by our courts, that the mere possession of lands by a person claiming no title to them, is it not a disseisin of the rightful owner; and, consequently, that he might convey, or devise, notwithstanding the statute to prevent and punish champerty and maintenance. Such possession has been held as not adverse to, nor inconsistent with, the title of the true owner, because it was not taken in hostility to his rights; hence, the statute of limitations will not run in favor of such possessor, nor to the prejudice of the owner. These decisions are not only warranted by legal principles, but are highly important and necessary to be observed, in a country like ours, where there are such quantities of vacant lands, and where there exists a very extensive practice of taking up possessions without color of title, Cady’s possession was clearly, then, not adverse to that of the true owner, and Todd having originally entered by his permission, it follows that his possession, in its commencement, was not adverse. To constitute a possession adverse to the trae owner, which is synonymous to a disseisin in spite ol him, there need be no legitimate right, but it must be accompanied with a claim to the land; if, therefore, Benjamin Isaacs had entered under his deed, which, though not stated to be a deed in fee, must be considered as such, I can entertain no doubt that such entry, claiming.a right to the land, would have constituted him a disseisor, or adverse holder of the lands; and, consequently, during such disseisin, or adverse holding, Platt could not have alienated the land. Todd was in possession when Isaacs took his deed; or, when he took possession, it was not adverse to the true owner. This possession is now attempted to be retained against Thorn, who, independent of the objection of the adverse holding by Todd, when he received a deed from Platt, would have the undoubted right to recover. The case states that Tpdd has held possession under Isaacs for about seven years. In what manner, whether as a tenant paying rent, or by purchase, or agreement to purchase, does not appear. It was in the defendant’s power to have rendered his relation to Isaacs explicit; failing in this, the fact is too loosely stated to work the consequences which would result to Thorn, from an adverse tenure when he purchased. It is possible that the agreementbetween Todd and Isaacs was, that the former should hold until the title was ascertained, and this they might construe a holding under Isaacs. In a case like *the present, where the title under which the lessor claims is clearly good, I think the court should be astute in finding grounds to retain a verdict so just; and that, unless legal principles are violated, the court ought not to put the plaintiff to the expense of amending his declaration by making Zephaniah Platt a lessor, and again going to trial in- a case where no legal defence can exist. On the ground, therefore, that the defendant has not shown by what kind of tenure he held the lands from Isaacs when he could have shown this, I am of opinion the verdict ought not to be disturbed.

New trial granted.

       See Jackson v. Bowen, 1 Caines’ Rep. 3, n. (a.)

       As to how and when adverse possession operates to prevent alienation, by the legal owner, see Jackson, ex dem. Jones, v. Brinkerhoff, 3 J. C. 101; Jackson, ex dem. Lathrop, v. Demont, 9 J. R. 55; Williams v. Jackson, ex dem. Tebbits, 5 J. R. 489; Jackson, ex dem. Bryant, v. Ketchum 8 J. R. 479; Jackson, ex dem. Benson, v. Matsdorf 11 J. R. 91; Jackson, ex dem. Smith, v. Vrooman, 13 J. R. 488; Whitaker v. Cone, 2 J. C. 58; Jackson v. Halsted, 5 Cow. 216; Belding v. Pitkin, 2 Cai. R. 147; Jackson v. Waters, 12 J. R. 365; Jackson v. Gumaer, 2 Cow. 552; Clowes v. Hawley, 12 J. R. 484 Jackson v. Collins, 3 Cow. 89; Jackson v. Jackson, 5 Cow. 173; Keneda v, Gardner, 4 Hill, 469; Cole and Coe v. Irvine, 6 Hill, 634.


author: Kent, Oh. J. Livingston, J.

text:
    Frost, Cole, and Crosby against Raymond.
    The words “grant, bargain, sell, alien, and confirm,” in a conveyance In fee,, do not imply a covenant. It is implied by the word " dedi ” or “ gave.”'
    This was an action for breach of an implied covenant. The declaration, laying the venue in Dutchess county, stated that the defendant, in consideration of $750, did grant, bargain, sell, alien, and confirm unto the plaintiffs, in fee, lot No. 65, or 76, in Junius, in Montgomery,'(now Cayuga county,) the plaintiffs to elect, on or before a certain day, which of the lots they would have, with an averment that the defendant was not seised of either of the said lots, or had any estate in either, so that he could not grant, and hath broken his covenant. The case now came before the court on a motion in arrest of judgment.
    Slosson, for the defendant.
    We rely on the following, points: 1, That no covenant arises on the words contained in the declaration; 2. That an eviction ought to have been stated; 3. That the plaintiffs should have averred an election of the lot they would take; 4. That the conveyance is void, as being of a freehold, to commence in futuro ; 5. That the venue is mislaid.
    There is no express covenant in the deed; if there be any, it must therefore be implied. For, allowing the grantor liad not any estate in the land conveyed, his merely selling a fee to which he was not entitled, will not create a covenant. This because the granting an estate in fee is not a warranty of the title in the grantor. None of the words used import a covenant; that can arise only on the word “ dedif and this purely on account of its original feudal acceptation. Co. Litt. 384 a, (n), 332; Touch. 181; *Perk. s. 124. In the conveyance of an inheritance, even the word “enfeoff,” though followed by “grant,” &c., does not imply a covenant. 2 Bac. Abr. by Gwillim, 66. The general principle is, that where there is a conveyance, no covenant shall be added to it which is not expressed or imported by force of the words used. Bree v. flolbech, Doug. 654; Grips v. Bead, 6 D. & E. 606. But allowing there was a covenant implied, the plaintiff has mistaken his remedy. On an eviction of the freehold, covenant will not lie either upon a warranty in deed .or in law, because the recompense is personal, and the plaintiff must have recourse to his warmntict chartce or voucher. 2 Bac. Abr. 76, citing Brownl. 19 ; Keb. 821; Hob. 4; Yelv. 139; Noy, 131. On this account, however, fhe plaintiff is not without remedy; for, if he has been deceived in his purchase he has his action on the case in the nature of a deceit, (n) 332, by Butler, on Oo. Litt. 884 a. At all events, an eviction ought to be shown, as the covenant relied on is one raised by implication of law. Touch.- 161, (n) 2, citing 2 Brownl. 161. On the third point it must be noticed, the conveyance is in the alternative, either of lot No. 65 or No. 76. An election was necessary to give a right of action. It was a condition precedent, and performance of it ought to have been averred. Goodison v. Nunn, 4 D. & E. 761; Kingston v. Preston, cited Doug. 689 ; Duke of St. Albans v. Shore, 1 H. £1. 270. The fourth point needs not any authority; and on the fifth the premises lie in Montgomery, and not in Dutchess; the action, therefore, even when transitory in its nature, if arising out' of the realty, must be where the lands are situated. 1 Com. Dig. 163; Bac. Abr. Yisne, pi. 27.

      G. B. Van Ness, contra.
    The question is, whether the words used in the deed, and set forth in the declaration, create, by implication, a covenant or warranty of seisin ? The cases cited against this, apply to conveyances by transmutation of the possession, and not such as operate by virtue of the statute of uses. The consideration paid on a bargain and sale, implies a warranty that the bargainer has a title to sell. As, therefore, the conveyance by bargain and sale is now substituted in lieu .of the old mode by feoffment, the words of the bargain and sale ought to have the same operative effect in creating a covenant, as the word “ dedi ” in a feoffment. This is necessary to make the analogy complete. The proceedings here are correct, because they proceed on privity of *contract. To support the position that an eviction must be shown, it would be necessary for us to first commit a trespass; for, as no title passes, in order to obtain one we must make a tortious entry. Holden v. Taylor, Hob. 12, is in point, to show that to avail of a breach of covenant in law, under words importing a warranty of seisin, entry and expulsion is not required, though, under a covenant for quiet enjoyment, it might be otherwise. It is contrary to reason to urge wé should elect, when the cause of action is that there was no estate out of which we could choose. The same observation applies to the grant being of a fee in futuro. With respect to the venue, it is sufficient to say, our suit is brought on privity of contract, not of estate; it may, therefore, be laid wherever we please. 1 Wils. 165 ; 1 Sell. 243.
    Sbsson, in reply.
    If the covenant be implied, it arises from privity of estate, and the locality of the action continues ; therefore, on the rendendum of a lease, it is local. 1 Saund. 241, (n) 5, ad fin. With respect to the distinction taken as to the applicability of the authorities cited, being only to cases not operating by the statute of uses, it is settled that conveyances taking effect by way of transmutation of use, receive the same construction as those at. common law. Tanner, ex dem. Peclcham and others, v. Mer~ hi, Willes, 180 ; Migden v. Vallier, 3 Atk. 734; Doe v. Mov gan, 3 D. & E. 765.

       A bargain and sale vests a use in the bargainee, to which the statute executes the possession. Now, as the use raised must be according to the estate out of which it arises, it follows, that a bargain and sale can convey no greater interest than the bargainer haa But a feoffment operates differently ; for, when in fee, it passes the whole estate, and vests in the feoffee ft fee, though perhaps a tortious one, and displaces other estates.

   Kent, Oh. J.

delivered the opinion of the court. Several objections are taken to the validity of the declaration. We shall, however, confine ourselves to the first and only important one, viz.: that here was no implied covenant of title. It is exceedingly interesting to the community that this question should be clearly settled, and well understood. We are to examine,

1. Whether a sale of an estate in fee, by the formal and apt words of conveyance, and for a valuable consideration, does of itself imply a warranty or covenant of title. The counsel for the plaintiff contended upon the argument that it did.

2. If it does not, then whether there be any particular word or words in the deed, that by settled construction, have been deemed to amount to such covenant or warranty.

1. It seems upon the first impression to be highly reason .able and just that every person, who, for a valuable con-Bideration, conveys land as bis own, should be held to warrant the title he so undertakes to convey, or that he should render back the *money upon failure of the title. This was the rule of the civil law in respect to the sale of both- real and personal property, concerning which that system scarcely made a distinction, an adequate price implying a warranty. Cod. lib. 8, tit. 45, c. 6; Dig. lib. 19, tit. 1, c. 11, s. 2; Lib. 21, tit. 2; 1 Domat, 79, 82, 83 ; 1 Ersk. Inst. 203. In the early ages of the feudal law, it seems also to have been considered as an obligation upon the lord to give his tenant an equivalent in case of eviction. This appears clearly from the book of feuds, which gives the report of a cáse of an action by the tenant against the lord, for investing him with a feud belonging to another, and from which he was evicted. The lord was there held to restore him another fee of equal value, or the price of it in money. Feud. lib. 2, tit. 85, and 80. But, although the feudal writers speak generally of the lord’s obligation to give the tenant an equivalent in case of eviction, Craig, and after him Sir Martin Wright, thinks this obligation never could havé applied to pure feuds which were gratuitous donations for uncertain military services, without price or stipulated render; and that it could only have applied to improper feuds, where it was reasonable it should apply, as in those cases a price was given, or an equivalent contracted for. Inst, to the Law of Tenures, 27, 32, 39, 40. This very question, whether investiture alone, without any express promise, entitled the tenant on eviction to an equivalent, has, it is said, been much discussed by the foreign Civilians; that it is the prevailing opinion among them, that the seller, without any promise, is bound to give an equivalent, if the fief was originally granted for services done, or in the way of remuneration. Butler’s note 315, to Co. Litt.

But whatever may be our opinions on the point, as an abstract question, or whatever may be the decisions of the civil law, or the feudal and municipal law of other countries, we must decide this question by the common, law of England. It was decided in the case of Seixas and Wood, (Ante, 48,) that, upon a sale of goods without warranty and without deceit, the purchaser took the soundness and quality of them at his peril. We think it is evident that caveat emptor has been always recognized in our law books as a fixed maxim, applicable equally to the transfer of lands and chattels.

It is a settled position that an estate in fee may be created by the usual and solemn forms of convey-anee, without any '^warranty express or implied, and that a conveyance in fee does not ipso facia imply a warranty. If it does, our books would be inconsistent and unintelligible on this subject. “If a man,” says Lord Coke, (1 Inst. 6a, and also say the judges in Buchhurst's case, 1 Co. 1,) “ maketh a feoffment in fee, without warranty, the purchaser is entitled to all the charters and evidences incident to the lands, to the end that he may defend himself; for, as the feoffor is not bound to warrant the lands, he cannot be vouched to warranty and to render in value, but the feoffee is to defend the lands at his peril.” In the case of Boswell and Vaughan, (2 Cro. 196,) in the exchequer, Tanfield, the chief baron, said, “ that if one should sell lands wherein another is in possession, or a horse whereof another is possessed, without covenant or warranty for the enjoyment, it is at the peril of him who buys, and not reason he should have an action by the law, where he did not provide for himself.” So, in the case of Medina and Stoughton, (1 Salk. 211,) Lord Holt observed, “ that if the seller of goods have not the possession, it be-hoves the purchaser to take care, caveat emptor, to hare an express warranty, or a good title; and so it is in the case of land, whether the seller be in or out of possession, for the seller cannot have them without a title, and the buyer is at his peril to see it.” In a much more recent case of Bree and Holbech, (Doug. 654,) the action was brought to recover back money paid for the purchase of a mortgage deed, which afterwards turned out to be a forgery. Lord Mansfield, and the court of king’s bench, ruled for the defendant on this ground, that the assignment contained no covenant for the goodness of the title, except only against the acts of the assignor, and that it was incumbent on the purchaser to look to the goodness of it. This case was afterwards cited and sanctioned by Lord •Kenyon, (6 D. & E. 606,) who said that he did not wish to disturb the rule of caveat em/ptor adopted in that case, and in other cases, where a regular conveyance was made, to which other covenants were not to be added.

The case in Douglas may perhaps be thought to have the less weight as there was a covenant against the grantor’s own acts, and it is a rule that an express covenant will do away the effect of all implied ones. 4 Co. 80, 86; Vaugh. 126; Cro. Eliz. 674, 675; Butler’s notes on Co. Litt. 832; 2 Bos. & Pull. 26 ; 2 Cha. Cas. 19. But the court do not intimate that *they proceeded upon that ground. This they would have done had they relied upon the extinguishment of the implied covenant by means of the express one. They adopted the old rule, that if there'be no covenant of title in a deed, the purchaser takes, at his own risk, the goodness of the title.

After this rule has been so long understood and practised upon, it would be of the most mischievous consequence to establish a contrary doctrine. The parties to deeds know that a covenant is requisite to hold the seller to warrant the title, and they regulate their contracts accordingly. If there be any fraud in the sale the purchaser has his remedy. If one sell land, affirming he had a good title, when he knew he had no title, an action on the case for a deceit will lie. Com. Dig. tit. Action on the Case for a Deceit, A. 8. 1 Fonb. 366.

2. We are next to examine whether there be any particular words in the granting clause of the deed which im ply a covenant.

Grlanville, lib. 7, c. 2, says, generally, that the beirs of donors are beld to warrant their gifts, “ donationss ;” and Braclon, lib. 5, fol. 388, b. 389, a, says to tbe same effect, that “ warranty belongs to all charters of simple donation, and that the donors and their heirs were held to warranty unless the deed expressed the contrary.- But a charter of' confirmation did not include a warranty, unless it contained a gift, and if the grantor say, do et confirmo, or the charter uses the words dare, vendere, &c. such a deed contained a warranty. So if homage was imposed, a warranty was implied.” It is a little singular that the old writers make the gift (donatio) the reason and ground of the warranty. It is the gift by the operative words do or dedi that creates the warranty. Accordingly, Lord Coke, 2 Inst. 276, says, that although dedi and concessi be coupled together, as in the statute de bigamis, yet these words rations donigorogori do appropriate the warranty to dedi only.

It is our duty to acquiesce in the law as we find it, but we are very naturally tempted to agree with Sir M. Wright, that warranty, instead of being attached to a fee, which was a pure gift, ought more justly to have accompanied a fee, which was created for a valuable consideration.

The statute de bigamis, 4 Edw. 1, c. 6, is very material to ascertain the ancient law on the subject, since it was only declaratory of the common law. 2 Inst. 274. It says “ that *in deeds wherein is contained dedi and concessi without homage, or without a clause of warranty, and to be holden of the givers and their heirs, by certain services, it is agreed that the givers and their heirs shall be bound to warranty. And where is contained dedi and concessi, &c. to be holden of the chief lord of the fee, and not of the feoffors or their heirs, reserving no services without homage, or without the aforesaid clause, their hoirs shall not be bound to warranty, notwithstanding the feoffor during his own life by force of his own gift shall be bound to warrant.”

By this statute, then, dedi is declared to amount to a Warranty for the life of the feoffor; 4 Oo. 81, a, and this is the word that Coke considers, (2 Inst. 275, b,) as the real operative word to create a warranty in law, and it hath this effect whether the conveyance in which it is found operate as a feoffment, release, or confirmation.

The statute of quia emptores, 18 Edw. 1, which followed soon after, prohibited all subinfeudations, and put an end to homage, which was, in those days, parcel of the tenure reserved to the feoffor, by declaring that it should be lawful for every freeman to sell his own lands, and that the feoffee should hold the lands of the chief lord of the fee by the same services that the feoffor was bound to before. This statute accordingly changed, in a great degree, the operation of the word dedi, by confining the implied covenant it contained to the life of the feoffor, according to the directions of the statute de bigamis, except in cases of gifts in tail and leases for life. 2 Inst. 275. Since that time it has been well understood and declared through all the books, that the word dedi, in a deed in fee, amounted to a warranty in law to the feoffee and his heirs only during the life of the feoffer. Co. Litt. 334, a; Touch. 180, 182; F. N. B. 134, H; 2 Bl. Com. 300.

This word do or dedi, which is the apt word of feoffment, as that conveyance was anciently called a donatio, is not, however, the word used in the deed before us. The only word, in the present case, that can be considered as implying a covenant, is grant; (concedo ;) Co. Litt. 9, a, b, and that word is carefully to be distinguished from the other; for it is well settled that concessi, in a feoffment, or estate of inheritance, implieth no warranty. It only creates a covenant in a lease for years. Co. Litt. 384. a; Bac. Abr. tit, Covenant, B; 5 Co. 17, a; 2 Roll. Rep. 399; Palm. 388; Carth. 98; Pincombe and Rudge, Hob. 3; Yelv. 139; Cro. Eliz. 674. Sir Geoffry Palmer’s opinion, Butler’s *note 332, and 2 Col. Jur. 437; 3 Keb. 188, 617. Brown v. Haywood, Hoy, 131; Saunders' on Uses, 406, 407, note.

We are not able to assign a very solid reason for this distinction between the force and effect of the words “give," and “ grant." It arose from artificial reasons derived from the feudal law. The distinction is now become merely technical, but it is sufficient that it clearly exists, and we are certainly not at liberty to confound the words, or change their established operation.

The other words in the deed, “ bargain, sell, alien and confirm,” have never been considered as implying any covenant whatever in any case. The only dictum that appears to oppose the law as now laid down, is that of Lord Eldon, in the case of Browning and Wright, 2 Bos. & Pull 21. He there says that the words grant, bargain, sell, enfeoff and confirm, import a covenant in law. Wo admit and have shown that the word grant imports such a covenant in an estate for years, and so also does the word enfeoff. But in the case referred to they were used in a deed in fee; and if he means (as it would seem that he did) that they there also imported a covenant, we cannot agree to that opinion, however respectable it may be, as it is opposed to the whole stream of the book authorities. We accordingly conclude that in the present case the motion in arrest of judgment ought to be granted.

Livingston, J.

Though I concur in the opinion delivered, yet as some further reasons influence my own, I shall beg leave to state them. The principal question, and on which I shall decide this cause is, whether the term grant, in a modern deed or conveyance, implies a covenant of warranty or seisin, so as to entitle the grantee to his action of covenant for damages against the grantor, in case the latter, at the time of its delivery, were not seised of the premises, or had no estate or title therein?

The attempt to recover damages for a breach of covenant on a deed containing nothing more than the granting words common to almost every instrument of this kind, and in which no express covenant was to be found, struck me aa novel, and in its consequences highly important. In prac» tice, every purchaser of land, who intends to have recourse in case of eviction against the former proprietor, takes care to have inserted in the instrument of conveyance the necessary covenants for that purpose, thereby ascertaining the precise extent of his liability. When purchases are made upon an understanding *that the same are tobe at the risk of the grantees, who are to have no remedy in case of defect of title, (which cases are very common,) these express covenants ara omitted, and deeds of the present form are used; with a full knowledge of this practice, it could not escape me, that to imply a covenant of this kind from any of the granting words of such a conveyance, would he to subject many persons to damages contrary to good faith and the understanding of all the parties to the contract. To such an interpretation, therefore, which was in my opinion to be avoided if possible, I early determined not to give my assent, unless constrained by decisions from which it would have been a dereliction of duty to depart. I could not perceive any magic in the word grant, nor why it should import a covenant any more than the other words with which it was connected. They are all inserted for the single purpose of transferring the premises to the grantee, and neither collectively nor separately convey, to professional or other minds, an idea of a particular covenant or obligation on the grantor’s part. When, in addition to the practice which has been mentioned, it is recollected that the price of land depends as much on the nature of the grantor’s title as on its intrinsic value, it is unreasonable that he should, for an eviction, make compensation in damages to a purchaser, who was apprized of the uncertainty of his estate, and for that very reason gave a smaller consideration for it, upon the express condition, perhaps, of taking a deed without any covenant whatever. If, however, the law be otherwise, the defendants must submit, however contrary to their expectations, or to the understanding of the plaintiff himself. But after a careful attention to the authorities cited, I can discern nothing in them from which the present demand can derive any support. On the contrary we shall discover that this “ famous monosyllable,” as Butler terms it, may be used without any imminent danger to a grantor, and may be frequently omitted without prejudice to a purchaser.

From Littleton it appears that the word warrantizare alone would create a warranty in deeds, and that neither defendere nor acquietare, although both of them more significant terms than concederé, would have that effect. His expression “ mil autre verbe en nostre ley” is very strong. Sir Edward Coke, in his commentary on this section, distinguishes between warranties annexed to an inheritance, and to a chattel real — of the former some are warranties in deed, and some in *law — á warranty in deed, or an express warranty, is created only by the word warrant, but warranties in law are created by many other words: dedi is a warranty in law to the feoffee and his heirs during the life of the feoffor; but concessi, or I have granted, in a feoffment or fine implies no warranty. The word exchange doth also imply a warranty ; this is also the case on a partition. Butler, in his note on this passage, remarks, that from what is here said, “ it most clearly appears that the word grant, when used in the conveyance of an estate of inheritance, does not imply a warranty.” This also is the opinion of Sir G-eoffry Palmer. ■“ The word grant,” says he, “ in a lease for years, is a covenant in law, or a general warranty. But in an estate of inheritance, where the fee passeth, the word grant is neither a covenant in law nor a warranty.” So also in 3 Keb. 188, the court inclined to “ think that the words concessi and feoffavi” did not make a warranty in a case of inheritance; and Sir William Blackstone, in his Commentaries, after speaking of a feoffment, informs us, that “ in other forras of alienation, gradually introduced since the statute of quia emptores, no warranty whatsoever is implied — they bearing no sort of analogy to the original feodal donation. And that, therefore, in such cases, it became necessary to add an express clause of warranty to bind the grantor and his heirs, which is a kind of covenant real, and can only be created by the word warrantizo or warrant.” The same author observes, that after warranty usually follow covenants, whereby either party may stipulate for the truth of certain facts, or may bind himself to perform something to the other. Thus the grantor may covenant that he had a right to convey, or for the grantee’s quiet enjoyment, or the like.”

The language of all these authorities, and of several others, which are not here noticed, is uniform, and too intelligible to be misapprehended. Without, therefore, in traducing a new rule of law, or considering as constructive, or implied warranties, or covenants, wrards which in deeds in fee have never yet been received in that sense, it is impossible the plaintiff can recover. Nor is there anything hard or inequitable in denying- to the word grant, and to all the others here used, a sense which, ex vi termini, no one of them imports, and which it is a hundred to one was not contemplated by either party. In conveyances of real estate, there must always be danger in implying anything that is not. stipulated *in clear and precise terms. This is the safest way of determining the extent of the grantor’s responsibility. Whether he is to defend the property against particular encumbrances, or against those who claim under him, or against all the world, ought not to depend on the equivocal or ambiguous meaning of terms used in the granting clause, but on plain and express covenants, which are now therefore uniformly inserted, where it is intended to render the grantor or his heirs liable in case of eviction or defect of title. The de^ fendant must, in my opinion, have judgmenta

Judgment arrested.

       What makes a covenant, see Bull v. Follett, 5 Cow. 170; Hallett v. Wylie, 3 J. R. 44. As to express and implied covenants, see Barney v
        Keith, 4 Wend. 502; Kinney v. Watts, 14 Wend. 381; Grannis v. Clark, 8 Cow. 30; Barnum v. Childs, 1 Sandf. 53; Cole v. Hawes, 2 J. C. 203; Vanderkan v. Vanderkan, 11 J. R. 122; Kent v. Welch, 7 J. R. 258.


author: Spencer, J. Thompson, J. Livingston, J.

text:
    Jackson, ex dem. Nellis, against Dysling.
    A possession of 40 years on an acknowledged, though erroneous line, is f good bar to a recovery in ejectment. A parol agreement, to abide by a certain division line, will be sufficient, ut semble, to prevent either party from claiming in ejectment contrary to it, though it will not pass the lands; but such agreement may, it would seem, be revoked or modified by a subsequent parol agreement.
    In this case, which was submitted without argument, a verdict had been taken for the plaintiff, subject to the opinion of the court on these facts:
    The lessor of the plaintiff owns lot No. 12, and the defendant lot No. 13, in Harrison’s patent in Montgomery. About 40 years ago, the persons from whom the parties derive title employed a surveyor to run a division line between them, which was done, without any. allowance for the variation of the needle from the year 1725, when the partition deeds of the patent-were executed. Possessions, however, were taken, according to the line thus run, and have so continued to the present day. In the year 1789, two surveyors were employed by the lessor of the plaintiff and Jacob Klock (under whom the defendant comes in) to ascertain the boundary between them. The surveyors ran a lino from the place of beginning, which was shown by the parties, making an allowance for the variation of the needle, from the date of the partition deeds. According to the line described by them, this line, thus struck, ran upon lot No. 13, and took part of it into lot No. 12. Jacob Klock, the then proprietor of lot No. 13, agreed to give up the possession to the lessor of the plaintiff, and to remove his fence, agreeably to this last line, so soon as a crop of corn then on the ground, should be removed. After this agreement the lessor of the plaintiff told a witness, sworn on the part of the defendant, that it had been furthei agreed, between him and the defendant, that if a certain cause, at that time depending between John J. *Klock and George Wills, should be decided in favor of Klock, then the defendant was to give up possession without a suit; but if Wills prevailed, the lessor of the plaintiff was to abandon his claim. No evidence was given what had been the isssue of the action between Klock and Wills.

       See Stuyvesant v. Dunham and Tompkins, 9 Johns. Rep. 61, S. P.

   Spencer, J.

Three questions have been made on the above facts:

1. Whether the possessions, according to Jacob. G. Klock’s line, for forty years, are or are not conclusive against the plaintiff’s right of recovery in this action ?

2. Whether the agreement, in 1789, is or is not binding, it being by parol, and no part of it having been carried into execution, according to the survey then made ?

8. Whether, if this last agreement was obligatory, it has or has not been rescinded by the subsequent agreement ? and whether it was not incumbent on the plaintiff to entitle himself to a recovery, to have proved that the cause between Klock and Wills was decided, and had eventuated in favor of Klock ?

The line run by Jacob G. Klock, forty years ago, was run at the instance of the then proprietors of lots No. 12 and 18, by a person acting under their mutual employ. This line was assented to at the time, and, independent of the subsequent acts of the parties, would, in my opinion, be conclusive upon them, after such a lapse of time, and possessions of such antiquity. It was competent to the parties to waive that line, and it appears that they did agree to waive it, and abide by the line run in 1789. An agreement by parol, to the settlement of a line, appears to me effectual, and not liable to any objections on the score of the statute of frauds and perjuries. This agreement was, however, executory, and might itself be annulled by the parol agreement of the parties. The subsequent agreement placed the settlement of the line on the issue of the cause then depending; this agreement, I think, controlled and modified the former; hence, in my opinion, it was incumbent on the plaintiff to have shown that the suit between Klock and Wills had terminated in favor of the former; not having done this, I think the verdict should be set aside, and a nonsuit entered, pursuant to the stipulation of the parties.

Thompson, J.

The submission to two surveyors, made by the lessor of the plaintiff and Jacob Klock, and their decision thereupon, cannot be considered as extending to the title of the land, or to have the operation of a conveyance. This *principle I think fully recognized in the case of Jackson, ex dem. Morris, v. Rosser, 8 East, 15. The title to lot No. 12, is admitted to be in the lessor of the plaintiff, and the submission was of a mere matter of fact, to ascertain where the line would run on actual survey, begining at a place agreed 'on between the parties. I cannot consider this agreement in any way affected by the statute of frauds. But, admitting it to have been void in its origin, that cannot make void the acknowledgments of Klock, subsequent to the determination of the arbitrators. After the line had been ascertained, and he knew where it run, he agreed to give up the possession and move his fence. Here, was, then, a full and complete recognition of the extent and boundary of lot No. 12, to which it is admitted the lessor of the plaintiff has title. It is immaterial in what matter this line was ascertained, whether by a joint submission to one or more surveyors, or by an ex parte survey : it is enough that Kloelc, after it had been ascertained, recognized it as the true line. This would preclude him from denying the plaintiff’s right, and must also have the same effect at rp> spects the claim of the defendant, who hold under Klock. The defendant, however, sets up a subsequent agreement made between himself and the lessor of the plaintiff, which he contends is to do away the acts and acknowledgments of Klock. This agreement, as stated in the case, I do not think can in any way affect the plaintiff’s right. If it is to have the operation of rescinding or waiving any right previously acquired, it was to have that effect on condition that a certain cause then depending, between John Klock and George Wills, should terminate in favor of the latter, and it was incumbent on the defendant to show that than suit had terminated favorably to Wills; nothing, however, -appears to show how that cause had been decided, or whether any decision had taken place. The plaintiff had shown enough to entitle him to recover, and if anything had occurred to take away that right, it was incumbent on the defendant to show it. And besides, this second agreement is not free from difficulty, on the ground of the statute ■of frauds. The title to the premises is acknowledged to be in the lessor of the plaintiff, and if the second agreement is to have any operation, it is to devest him of that title. Neither agreement can have the operation of changing the title; the first must be viewed as a waiver, by Klock, ■of all benefit resulting from length of possession, and opening the question as to the *true line of 'division between the"two lots, and the plaintiff’s title to the premises in question is- shown, independent of either agreement. I am therefore of opinion that he is entitled to recover.

Livingston, J.

But for the new line run in 1789, and the parol agreement then made, it is not pretended that the plaintiff can recover; for the parties claiming these lots, having no less than forty yeas ago determined on the true line between them, by running the same, and having held their possessions accordingly ever 'since, no court would permit either of them, at this late day, to disturb the other. The defendant’s possession is not only adverse to the lessor’s claim, but commenced with his, or his ancestors’ consent, and therefore ought not now to be questioned, merely on the ground that a mistake was made in the first survey. The defendant’s title must be regarded as complete at the time of the second survey, and to continue so still, unless he or his devisor has done anything to defeat it. The agreement to abide by the line to be run in 1789, being by parol, was not binding on either. No memorandum of it was signed by the parties, or their agents. It is, therefore, within the act for the prevention of frauds and perjuries. If the defendant, or Klock, had removed his fence accordingly, it might have bound him, and those claiming under him, as to the extent of his pos-^ session ; but never having carried the contract into effect, we cannot enforce a performance in this way, without violating a plain provision of the act. It is an agreement to put the lessor of the plaintiff in possession, which is equivalent to a sale of certain lands, then held by Klock, and to which he had a good title, provided they fell according to a line then to be run, in lot No. 12. I can perceive no difference between this condition, or proviso, and any other which the parties might have thought of. If Klock had promised to remove his fence so many feet, or, in other words, to give the lessor so many feet of his land,- provided he would pay him a sum of money, or do any certain service, it would not have been obligatory, unless it had been in writing. Why, then, should this agreement be valid ? If parties will confide in each other’s word, where the law requires a more solemn form of contracting, they cannot complain if courts adhere to the posi • tive directions of an act of the legislature, one object of which is to prevent parol contracts of this kind, or, at least, to put an end to judicial controversies about them. The court of chancery, with *a view cf preventing frauds, has gone far by its decisions, to render this act a dead letter: but we are not sitting in that court, which would probably have done' as well, not to depart from the literal provisions of the law, which are to explicit to be misunderstood, and to salutary not too be strictly enforced, As the defendant, then, has shown a perfect title to the premises, independent of the agreement in 1789, which not being reduced to writing, must be regarded as a nullity, I am of opinion, without considering the other points, that he must have judgmenta

Judgment of nonsuit.

       See Jackson v. Bowen, 1 Caines’ Rep. 360, n. (a.)

       See Jackson v. Defenderf 3 J. R. 269; Jackson v. Lunn, 3 J. C. 109; different authorities in case, Britter v. Phelps, 17 Wend. 642; Jackson v. McConnell, 12 Wend. 421, 12 Wend. 127, 12 Wend. 130; see Adams v. Rockwell, 16 Wend. 286; Van Wyck v. Wright, 18 Wend. 157; Bradstreet v. Platt, 17 Wend. 44; Jackson v. Woodruff, 1 Cow. 276; Dibble v. Rogers, 13 Wend. 536; Lamb v. Coe, 15 Wend. 642; Jackson v. Van Antwerp, 8 Cow. 273, 10 Wend. 109, 7 J. R. 283, 17 J. R. 29, 7 Cow. 723, 1 Cow. 101, 6 Wend. 467, 10 Wend. 104, 12 Wend. 421, 12 Wend. 127.


text:
    Schuyler against Russ.
    On a written warranty that a negro is sound, parol proof is admissible to show tha:. at the time of sale, the vendor informed the vendee of a defect. A warranty does not extend to defects which are visible.
    Case on a written warranty, upon the sale of a negro, that he was in good health, and in all respects sound.
    At the trial, parol evidence was admitted to establish, that at the time of sale the plaintiff communicated to the defendant the defect in question, which was in the left arm, offering to show it, and that it was clearly visible, the arm being thin and crooked. It was without argument submitted to the court to determine whether this evidence was admissible or not ?
   Per Curiam.

The proof was admissible. A warranty •does not extend to things which, from the senses, may ba discerned tobe otherwise. Finch's Law, 189 ; 1 Salk. 211. ’Here the defect was not only visible, but the plaintiff told the defendant of it truly and explicitly, nay, even directed his attention particularly to it. The defect in question was not, therefore, within the purview of the contract, and the parol proof being admitted, the verdict was agreeble to-the weight of evidence and the justice of the case.

       See Jackson v. Putnam, 1 Caines’ Rep. 358, and note here.


text:
    The People against Poyllon.
    To warrant the granting a copy of an indictment, to ground an action for a malicious prosecution, the malice should appear from circumstances at the . trial, declarations out of court, or certificate from the judge that he thinks it ought to be granted, which he may give though he be off the bench and has signed one which proves insufficient.
    Goldek, in order to ground an action for a malicious prosecution, moved for a copy of the indictment in this cause, on a certificate from the judge, before whom it had been tried, that the acquittal was satisfactory to the court.
   Per Curiam.

Every acquittal must he satisfactory. The malice ought to appear from what passed at the trial, or from *some circumstances, or declaration, out of court. The judge ought to say he thinks a copy ought to be granted.

Colden. The judge who presided at the trial is not now on the- bench, and thinks he cannot now amend the certificate.

Per Curiam. That is no impediment. It may be done |nine pro tunc.

M. B. The certificate being altered according to the direction of the court, the copy was ordered accordingly.

Motion granted.

*#*A counsellor, who has been a judge of this court, is entitled to a seat at the table with the attorney-genera] and officers of the people, or, as the English lawyers would express it, within the bar.