author: Tkumbcu,, J. Swift, Ch. J. IIosmek, J. Gould* J.

text:
    French against Gray.

      New-Haven,

    November, 1816.
    THIS was an action of ejectment brought to recover the seisin and possession of a lot of land and a dwelling-house ⅛ Huntington. The action was commenced in Jlpril, 1815.
    \ acal of unrc’coi-dcd, is noevi-dence ot title, except as against the grantor and his heirs, nor of any efficacy to enable the grantee to enter, and recover seisin and possession ;against a stranger.

      The cause was tried at Danbury, September term 1816, before Trumbull, Smith and Baldwin, Js.
    On the trial, the plaintiff claimed title to the land in question, by virtue of a mortgage deed, executed by David Stratton to William Bennett, dated July 1st, 1786 5 and also, by virtue of a. quit-claim deed of the same land, executed to the plaintiff, by Bennett, together with one Samuel Curtis, whose claim or title, if any, did not appear, dated January 19th, 1789. The last mentioned deed was recorded indue season, but the deed from Stratton to Bennett was not recorded until the 9th day of February 1811.
    It w as agreed, that Stratton, at the time of executing the mortgage deed to Bennett, was the lawful proprietor of the premises.
    The defendant, denied the plaintiff’s right of recovery, on the ground that he, and also Stratton the mortgagor, had been ousted and disseised of the premises, for more than fifteen years previous to the commencement of the action.
    In support of this defence, the defendant offered evidence to prove, that one Seth Gray, in the year 1789, entered on the premises, consisting of a small house and about two acres of land, and that he continued in possession until the year 1810, when he abandoned the premises, and that his son Joseph, the present defendant, had held the possession ever after-wards. To oppose this claim, the plaintiff offered evidence to prove, 1. That in the year 1796, Seth Gray moved off all his effects, and totally abandoned the premises, for the period of about one year and a half. 2. That one Zachariah Lyon held an execution in his favour against Stratton, the return-day of which had elapsed, w hich, prior to the year 1800, he caused to be levied on a part of the premises, as the property of Stratton ; that the plaintiff also held an execution in his favour against Stratton, under like circumstances, which he caused to be levied on the residue of Stratton’s supposed right in the premises ; that immediately afterwards, Lyon, by deed of quit-claim, conveyed all the right acquired by his levy, to one Jared Beardslee, but the deed was not recorded ; that Beardslee agreed with the plaintiff for the purchase of his right acquired by virtue of his levy, but no deed was executed by the plaintiff to Beardslee, in pursuance of such agreement : that Beardslee, in Jpril 1801, entered on the premises, bv virtue of his claims before mentioned, and gave notice of such claims to Seth Gray, v.ho was then i» possession ; and (|lat p w aH thereupon agreed between Beardslee ami Seth Gray, that Beardslee should hold the exclusive possession of a certain lot containing about two acres, parcel of the premises, and that Gray should retain the possession of a small dwelling-house, and garden, also parcel of the premises, as tenant at will of Beardslee; that Beardslee plowed and sowed the two acres of land, but that before the time of harvest, he was so molested in his enjoyment of the premises, by the family of Gray, that he did not reap the grain sown ; and that thereupon, the deed from Lyon to Beardslee was delivered back, and the contract between Beardslee and the plaintiff was rescinded.
    It was also proved, that in the year 1803, in pursuance of an agreement between Lyon and the plaintiff, Lyon, claiming title by virtue of the levies before mentioned, and in behalf of himself and the plaintiff, entered upon the premises then in the possession of Seth Gray, and demanded the surrendry thereof; with which demand, Gray refused to comply.
    Upon this state of the case, the court charged the jury, that the possession and ouster of the owner must have con-tinned without interruption, for the term of fifteen years. If during any part of the term, no person is in possession, holding out the owner, this is an interruption, and the owner is revested with the possession. If the owner, by himself, or an agent authorized by him, enters on the land, for the purpose of taking possession, claiming it as his own, and demands of the tenant to deliver up the possession, or having so entered, takes possession and exercises acts of ownership, of which the tenant has full knowledge, in either case, the possession is interrupted, and no right or title is gained by the tenant.
    The court also instructed the jury, that no act done or performed, either by Lyon or Beardslee, in relation to the premises, nor any entry claimed to have been made by either of them, could have any effect upon the cause, as it appeared from the facts conceded, that they had no title to the land, nor any authority from the owner, to make entry, or take the possession.
    The court further charged the jury, if they should be of opinion, that there had been a continued and uninterrupted possession of the land, for the term of fifteen years, by which the owner had, during that period, been ousted and holden out from the land in question, that they should find for the defendant: but if they should be of opinion, that there had not been a continued and uninterrupted possession and ouster the plaintiff, and those under whom he claimed, for the term of fifteen years, that then they should find for the plaintiff, The jury returned a verdict for the defendant; and the plaintiff moved for a new trial, on the ground of a misdirection ; which motion was reserved for the consideration and advice of the nine Judges.
    The case was argued elaborately, by Sherman and B. S. fíaldwin, in support of the motion ; and by I. Mills and fFules, contra.
    But as the Judges, in delivering their opinions, reviewed the principal topics of argument urged, and the authorities cited, on both sides, it has become unnecessary to detail them here.
   Tkumbcu,, J.

This case depends chiefly on the construe tion of the statutes of this state respecting the conveyance of title to real estate, and the limitations of time, within which a right of entry remains in the grantee against actual settlers and cultivators.

The case is briefly this. One Stratton, who had the legal estate of the land in question, by his deed, dated July 1st.. 1786, mortgaged it to William Bennett, in whose hands the deed lay unrecorded, for the space of about twenty-five years. On the 19th day of January 1789, Bennett, together with one Curtis, (whose claim or title, if any, does not appear,; executed to the plaintiff a deed of quit-claim, which was recorded in due season. By this deed, the plaintiff’s claim commences. In the same year, one Seth Gray entered into the premises, and w ith his family remained in possession till in the year 1810, when he removed and left them in the pos session of his son Joseph, the present defendant, who held the possession ever afterwards. About the year 1800, one Zac ha-riah Lyon had an execution in his favour against said Stratton. the return-day of which had expired ; the plaintiff had also an execution in his own favour against Stratton, under the same circumstances •, they caused each of these executions to be levied on the premises, as the property of Stratton. Both of these levies are agreed to he void. However, in (hr* year 1803, Lyon, by agreement with the plaintiff, entered or the premises, claiming them by virtue of said levies only, and demanded of said Seth Gray, to surrender them to himself and the plaintiff; but he refused to comply with the demand. This is the only demand ever made by the plaintiff, or on his behalf, previous to the commencement of this action. On the 9th day of February 1811, the original mortgage deed from Stratton to Bennett, was looked up, and recorded. On the 4th day of April 1815, the plaintiff brought this action against the defendant. On the trial, the defendant rested his defence on the ground that the plaintiff, and said Stratton» the mortgagor, had been disseised, and ousted of possession of the premises, for more than fifteen years before the commencement of the action, rt& from the year 1789. ISy the statute of this state respecting the possession of houses, lands, Ac. which was passed in the year 1684, it is enacted, ⅛< That no person or persons shall, at any time hereafter, make entry into any lands, tenements, &c. hut within fifteen years next after his or their right or title, which shall hereafter first descend or accrue to the same; and in default thereof, such persons so not entering, and their heirs, shall be utterly excluded ami disenabled from such entry after to be made.35 In the construction of this statute, it has been uniformly holdcn by our courts, that it respects those cases only, in which the person, who owns, or claims title, has been ousted and kept out of possession, for the term of fifteen years, by the entry and possession of some other person or persons, holding the lands adversely to his claim ; that this adverse possession must never have been interrupted or abandoned, during any part of said time ; that the owner thus disseised is deemed in law to have lost his rights by his own laches and negligence, and the person in actual occupation and possession of the land, at the expiration of that term, has acquired a title by possession ; that it is not necessary that such actual occupant should have been in possession during the whole period, but that it is sufficient to prove, that the original owner, or claimant, has been, during the whole time, ousted and divested ; that he who has thus lost his right of' entry, has with it lost ail right of action for the recovery of the lands ; and that, after a title is gained by such adverse possession, no enquiry can be had, respecting flic original rights of the first proprietor, or claimant, and m> question made, whether he, who first seized Use possession, entered by right, or by wrong, had an equitable claim, or was a mere trespasser, wrong-doer and disseisor: for the statute puts an end to all researches for prior titles, after an adverse possession for fifteen years. See 1 SwifL’x System, odr. of title liy possession ; in w hich the principles of law on this point are laid down with the, greatest precision ami perspicuity. So 2 /Hack. Comm, 19b. il Possession may, by length of time, and negligence of him who has the right, ripen into a perfect and indefeasible title.” By the. statute 21 Jac. 1», possession for twenty years bars the owner of all right of entry, but leaves him to ids writ of rigid. In this particular, our law differs from the English. On a writ of right, the question is, whether the. plaintiff has a good, prior title, and. whether the possessor for twenty years or more, entered at first, and still holds, as a wrong-doer and a trespasser: but in a possessory action, the only question is, whether the defendant can prove an uninterrupted, adverse possession, during the whole term required by statute. Tins point, whether he enteied and detains the premises rightfully', or by disseisin, can never be brought forward on a plea of title by possession : nor can it ever be enquired of, upon sue!) a defence, in our action of disseisin. The fact of fifteen years quiet possession, is decisive in favour of the defendant, and our law allow s no writ of right.

From the record and motion in the present case, it dearly appears, that the plaintiff is barred of a recovery, unless his rights have been preserved, and the adverse possession legally interrupted In his favour, by the acts of Lyon or ISeardslee.

It must be remembered, that neither Lyon, nor French, who levied separate executions on the premises, as the property of Stratton, gained in them any rights thereby, as their levies were absolutely void ; and that Lyon had no other pretence of title. ISeardslee claimed only by a conveyance from Lyon, by which nothing passed ; and his subsequent negotiations with Seth Gray are totally irrelative, as to the rights of French.

Lyon entered in 1803, and demanded of Seth Gray the surrender of the premises to himself and the plaintiff, by virtue of the tille, they supposed to have been gained by their levies, lie denied inch* right, ami refused !o deliver up the possession on that demand. It seems, that they then disco* - ere(j that their levies were void ; — for Beardslee gave up his deed from Lyon, relinquished all pretensions to the land, and we hear no more of any claims, until seven years after, when, upon Bennett’s deed from Stratton being found and re corded, the plaintiff claims anew on that ground.

This entry and demand is the only act, by which it is claimed, that the possession of Gray was interrupted. No entry was ever made by Stratton or Bennett, or any person claiming under their rights.

But waiving these considerations, of which I do not deem it necessary to take advantage, let us suppose that French had actually entered on the premises at that time, and demanded the surrender, by virtue of his claim under the deed from Bennett,* and then enquire, whcihcr such an entry would enable him to recover seisin and possession, w ithout procuring the deed from Stratton to be recorded.

A deed of lands, unrecorded, is no evidence of title, nor can be produced as such in court, against any other person, but the grantor and his heirs. By the statute, tit. 162. c. 1. s. 9. it is enacted, “ That no grant, or deed of bargain, sale or mortgage, made of any houses or lands within this state, from and after the first day of March 1709, shall he aero unted good and effectual in law, to hold such houses and lands against, any other person or persons whatsoever, but the grantor or grantors, and their heirs only ; unless the grant, deed or deeds thereof, he recorded at length, in the records of the town, where such houses and lands do He." Such arc the express words, and such has been the universal construction, of this statute. Vid M'Donald & al. v. Leach, Kirby 72. Willet v. Overton & al. 2 Root 338. Doolittle & ux. v. Blakesley, 4 Day’s Ca. 265.

The enquiry is made, who is the owner of the soil, as all agree that it does not lie in abeyance. I answer, Stratton still has the fee, his deed to Bennett notwithstanding, until that deed is put upon record ; and any suit for the recovery of the land must be brought in his name. If he sell It a second time, to a bona fide purchaser without notice, who procures his deed to be first recorded, the fee passes by the conveyance. This proves, that the fee is still in him.

By virtue of his deed, though unrecorded, Bennett had right to enter, and hold the premises against Stratton, by force ot the statute ; and asno other person liad any legal title or claim, he could maintain that right against all mankind ; or, as is stated by Blackstone in another case, “ the conveyance gives him a good right against the grantor, and possession or occupancy confirms that right against all the world besides.” ¾ Black. Comm. 10. For whoever should sue him in an action of disseisin, must fail, for want of proving a title. This right Bennett never exercised.

Admit that French from his deed acquired all the rights of Bennett. In 1789, we find Seth Gray, with his family, in actual possession and occupation of the house and land, holding adversely to all mankind. He had disseised the owner, whoever that might be. He remained in possession, unmolested, till the year 1803. The question is, how should French put him out of possession ? Should he enter and attempt to hold by force. Gray, having been in quiet possession for more than three years, had right, by the statute against forcible entries, to detain his possession against him. French is put to his action of disseisin. Could he maintain it in his own name i He must show that he has the complete legal, title in himself, or he cannot recover, let the claim of Gray be ever so defective. Ho could produce a valid deed from Bennett and Curtis, but the title on record is in Stratton. The deed from Stratton to Bennett must be resorted to, in order to complete the chain of conveyance. Had he procured that deed, and recorded it, his title to the land would have been perfect : but the deed, unrecorded, was of no validity to recover and hold against Gray. It could not be produced as evidence in tiie case, as hath been often decided in our courts.

French might, perhaps, have brought the action in the name of Stratton. Stratton liad a clear title on record, and could recover the premises from Gray. On that recovery, The way would be open fur French to enter and possess. His own deed gave him right to hold against Bennett, and Ben-,xtt’s deed, though unrecorded, was good evidence against Stratton. Such was the practice in the case of a purchase of land, by a deed, which proved void, because it was found that the vendor was out of possession at its date. The purchaser brought his action against the disseisor, in the name of the vendor, recovered possession, and held it by force of the covenants in his deed. 1 Swift's Sysf. 301.

So the assignee of a bond, or a note, not negotiable, must sue in the name oft lie assignor; and if the bond be secured by mortgage, the action for recovery of the lands must be in the name of the mortgagee. The assignee has rights in law against him, but none, except in equity, against the mortgagor.

The case of the granice of an unrecorded deed in this state is the same, in this respect, with that of the bargainee in England under the statute of enrolment. Before enrolment, the fee of the land is in the bargainor; but if the deed be duly enrolled within six mouths from the date, the bar-gainee is thereupon, by relation, considered in law, as in ah inilio, for the purpose of avoiding all intermediate conveyances, and (according to tbe better opinion,) of ratifying bis own previous leases and grants. 2 Inst. 671. Co. Litt. 147. b. Isham v. Morrice, Cro. Car. 109. Flower v. Baldwin, Cro. Car. 217. Bellingham v. Atsop, Cro. Jac. 52. Berry v. Bowes, 1 Ventr. 360. 4 Leon. 4. Hynde's case, 4 Co. 71. it is argued, that enrolment is not required in England, to enable the. bargainee to bold tbe laud against a wrong-doer. To prove this point, it is said, that a deed not enrolled is valid against a subsequent purchaser with notice. But this assertion is not true, in the sense in which it is applied, if Ji. purchases by deed of bargain and sale, and before he procures bis deed to be enrolled, B. with full notice, obtains a second deed, and has it enrolled previous to ihc enrolment of the deed to .2., in that case, if J. after-wards, within tbe six months, has his deed enrolled, lie shall hold the land against 11.; and B.’s deed shall be adjudged, fraudulent and void : Worseley & al. assignees, v. de Mottos & al. 1 Burr. 474. ; but if omit to enroll bis deed within the six months, according to the statute, nothing passes to him by bis deed, and he has wholly failed of gaining any title. Stat.27.Hen. 8. c. 16.

So it is urged, that with us a first grantee, who neglects to record his deed, will hold the land against a second purchaser with notice, who puis ids deed upon record; and therefore, recording is not necessary to gain title against a a wrong-doer. But cases of this kind are decided wholly on the ground, that the second conveyance, though first recorded, is fraudulent and void against a prior grantee. V or ihe grantor is clearly guilty of intentional fraud; and if the second purchaser have notice of the first conveyance, he is a party in ihe fraudulent combination, and equally guilty , This is evident, because, if he. had no notice, his deed, if first recorded, is valid against the prior purchaser, who lias not used due diligence in recording . but in the other case. Ids «leed being void for the fraud, is as though it had never been executed, and the first grantee shall hold the land. Such was the case of Trustee of Vamp’s estate v JVilford, decided by the superior court at JVeTV-Have.il, February term, 1.T82, of which I have a note taken at the trial.

I believe that one may safely assert, that no case can be found, in which botii deeds were not put upon record before the trial. Wherever the point is mentioned, the question is, whether the deed first on record shall hold, — which implies the recording of the other; and 1 am confident, that no lawyer, during the period of my practice, would have advised his client, the first grantee, to risk his cause, w ithout recording his deed.

The case may be fairly stated in tins manner, Jl. executes his deed to /?., who neglects to put it on record. C., having knowledge of this omission, obtains from A. a second deed of the same land to himself, and procures it to be immediately recorded. I}., the first grantee, makes a subsequent record of his deed. On trial, the question is, who shall hold tin-land. B. produces his deed, duly executed and recorded. This shows a clear title, prima facie, in B. To oppose it, 6'. offers his deed from A., subsequent in date, hut first pla eed on the record. This must be fatal to the claim of B., unless he can remove this objection out of the way. For this purpose, he proves, that V, had notice of his prior conveyance, and avers, that the deed of C, is fraudulent and void, as respects his title. The court: so adjudge it. It becomes now as inoperative, as though it had never existed, and B. recovers the land on a clear title, by his deed duly recorded, and as to which all obstructions from the intermediate claim are now completely removed.

Such is clearly ihe course when the first grantee brings tin-suit : yet if the question could he brought up by him, without recording bis deed, and perhaps it might by way- of defence, in case he should have got into possession of the land after the execution of the second deed, and thereon the subsequent grantee should sue him in ejectment, I should say, that the SCCOrid deed was fraudulent in its making, and so it must always continue ; that courts of law will recognize and protect equitable rights, as well as legal; and that the second grantee could never recover against the first, by a title found - ed on a fraudulent deed. Vid. Bulkley & al. v. Storer, 2 Day's Ca, 531. 1 Swift's Syst, 309. Allen v. Holkins, 1 Day's Ca. 18. Willet v. Overton et al. 2 Root, 345.

But such a case never did, and probably never will, occur; for no man, when sued in an action of disseisin, would omit any longer to place his deed upon record.

It is agreed, that the words of the statute expressly declare, that a deed gives no right in the land against any other person or persons whatsoever, than the grantor and his heirs, unless it is recorded. But it is contended, that Ais cannot have been the meaning of the legislature, who passed it; and it is now to be explained away, by a construction, never till within a few years heard of in our courts, and never as yet sanctioned by any decision ; — and it is said, that this is necessary to prevent it from operating in favour of trespassers and wrong-doers.

Vc always tread on unsafe ground, when we undertake to conjecture that the intention of the legislature, in passing an ancient statute, must have been different from its plain and literal meaning, and arc very liable to mistakes, in deciding what was the old law, the mischief, and the remedy, unless when we are aided by a cotemporaneous, or at least an early, construction, put upon it by the courts. This act was passed in the year If 08, and its origin may be traced to 1650. Wo have no reports before 1786, excepta few scattered cases, noted at the beginning of Root’s Reports. I can speak from my own knowledge since the year 1774, only. It was, at that period, considered as settled law, that a deed unrecorded gave no right in the land against a stranger, and was no evidence of title, except against the grantor and his heirs ; but that when duly recorded, it put the grantee into immediate seisin and possession of the land, superseded the necessity of livery of seisin, and enabled the grantee to sustain actions of trespass and disseisin, without making proof of his actual entry : i. Swift’s Syst. 307, 308. — but that, until recorded, it had no legal effect, except between the parties, and then operated as a bar to flic claim of the grantor, and by force of the cove-yarns it contained. No lawyer then thought of offering to the court an unrecorded deed, for any other purpose ; and it was the first direction to a client, to see that his title deeds were duly recorded.

At that time, the only disputed noints, relative to this suh-ject, were these ; first, what should be accounted a reasonable time for recording a deed, beyond which, if it were neglec ted, the record should he of no avail, unless its being recorded was prevented hv fraud — as the statute had omitted to fix the period, as was done in England in the statute of enrolments ; the second point arose out of the tenth section of the statute, and it was then doubted, whether the record was completed in law, from the time, when the town-clerk minuted on the deed, that it was entered for record, or only from the time, when it was in fact recorded at length in his hooks ; the third question was, whether the deed, being complete on the record, should have relation to its date and delivery, so that the grantee should be considered by law as in ab initio, for the purpose of maintaining an action brought, or confirming a conveyance given, before the recording of the deed. Hartmyer v. Gates, 1 Root, 61. Ray v. Bush, 1 Root, 81. Moore v. Watson, 1 Root, 388. Franklin v. Cannon, 1 Root, 500. M'Donald et al. v. Leach, Kirby, 72. St. Andrews v. Lockwood, 2 Root, 239. Welch v. Gould & al. 2 Root, 287. Willett v. Overton & al. 2 Root, 338.

I cite these cases, as uncontrovertible authorities, to show that from the year 1774, when Hart layer’s case was tried, to the year 1797, when the case of Willett v. Overton was decided, it was the settled construction, that no person could support an action for the recovery of land, by force of any deed, unless that deed was duly recorded before the trial. In some of these cases, the principle is directly laid down ; in most of the others, no doubt could have arisen, had the courts supposed the recording unnecessary : in Willett v. Overton, the question was, whether, as the recording of the deed at length had been totally prevented by fiaud (although it had been lodged with the town-clerk, and minuted upon as entered for record, before it w as taken away and destroyed) a court of law could give the remedy in that particular case, notwithstanding this defect in the title, or whether the party claiming must he driven to seek his onlv relief in chancery. In the year 1780, before the superior court in Neto-Haven county, at an adjourned session in December, tvm cases were decided, which depended on the application of the doctrine of relation. By the advice of the court, special verdicts were found, and the point elaborately argued by the ablest counsel-lors at the bar. All the English authorities relative, to the doctrine, which were then extant, were produced. I took copious notes of both cases, at the trial, from which I am enabled to state them with precision. The first case was

Kimberly against Leavenworth.

Leavenworth had an execution against Henry Williams, On the llth day of April, he caused it to he levied on the land of Williams, and on the same day, conveyed the land by deed to James Ji. Ilillhouse Esq., and look back a lease of it to himself. This deed was immediately put on record, On the 14th day of said April, Leavenworth completed his levy, by appraisement, return and recording, agreeable to law, As soon as the levy was thus completed, Kimberly levied an execution in his favour against Leavenworth on the land, and brought his action of disseisin. The court decided, that the property of the land weli passed to Ifillhovsc, by the deed; that Leavenworth was in, by relation, from the first, act of levying; and gave judgment for the defendant. ■■

The report of the other case, is as follows.

Joshua í'kanhleragainst Vare Bishop.

On special verdict, the case was this. Chandler purchased the land in question of Bishop, by deed duly executed and recorded, but suffered Bishop in remain in possession. Then Chandler gave a deed of the land lo James Jauncy, which war, also • duly recorded. Afterwards, Jauncy executed a deed of quitclaim to Chandler, Bishop still continuing in possession, Chandler sued him, in this action, for the surrender of the. land. After the action brought, and just before the trial, Chandler put his deed from Jauncy on record.

ft- was agreed, both by the court and the bar, that Chandler could not have maintained his action, without recording his deed ; and the sole question was, whether his deed from Jauncy, being now recorded, should have relation to the time of its date and delivery, so as to make him in possession ah initio, and capable of bringing an action, immediately after the deed was executed- For the defendant it was argued. '•hat the doctrine of relation takes place only as between the parties, to prevent, any mesne incumbrances by the grantor, but cannot affect the interest of a third person ,’ much less shall it be carried so far as to make one a disseisor, who was not privy to the transaction,,

Sed per Curiam. The deed, after recording, has relation to the delivery, and the plaintiff was in ab initio, for the purpose of bringing his action of surrender.

J udgment for the plaintiff.

These actions were tried before the Honourable Matthew Griswold, Chief Justice, and Dyer, Sherman* and Pit-kin, assistant judges. The principle was considered as finally settled, and was afterwards constantly recognized by the courts. Kirby, 72.

As to the importance of this statute, and its operation on our titles to land, 1 shall cite some passages from Swift’s Sijsl. our first elementary treatise of acknowledged authority ; vol. 1. page 307. After stating that it is one of the requisites of a deed, that «it-must.be recorded,” and reciting the words of the statute, the writer proceeds thus : « The regulation adopted by this statute is founded in the highest wisdom and policy, and has a most effectual operation to reduce the titles to things real to certainty, and lessen the sources of litigation. The records and files of the towns will shew to every person, that is pleased to enquire, in whom is vested the legal title to lands, and inform him whether he can purchase with safety. This renders all conveyances of lands a matter of much more public notoriety, than the antient method of livery and seisin, or corporeal investiture ; ami as it makes that practice wholly unnecessary, it is probably the reason of its disuse.” The author pursues the same subject in page 313. « In this state, the law requiring the recording of deeds, superseded the necessity of an actual delivery of possession of the premises. For as this is a much more effectual mode to make the transaction known and public, it would be superfluous to continue the common law practice of delivery of possession.” See Chalker v. Chalker, 1 Conn. Rep. 87. & seq.

The intention of the legislature was to oblige every man-to record his deeds, by tiie risk of losing his title under them by bis neglect. But by the construction now contended for, instead of being founded in the highest wisdom, it would become one of the most nugatory statutes in our code,, The clause, which declares an unrecorded deed valid against the grantor and his heirs, would be useless, for such a deed would he equally valid, if the statute had never existed ; and the operation of the law would be confined to the solitary case, where an insolvent swindler endeavours to defraud, by giving a second deed to an honest purchaser, without notice of the first, which happens not to be recorded, — a case that is not heard of in our courts ten times in a century, and which there is little reason to suppose was ever in the contemplation of the legislature, who first passed the act.

The necessity of recording long leases, according to the stat. tit. 162. c. 2. in order to complete the title, was never doubted, nor that of recording the levy of an execution, to enable the creditor to hold the land set off by it : yet 1 see not why those statutes are not equally liable to be explained away by a similar construction.

It is still contended, that our acts concerning possession of lands, and for quieting of men’s estates,” however plain and express their language, must never be so construed, a® to protect trespassers and wrong-doers.

But a person, who has held possession of lands, during the period required by the statute of limitations, is not, in the eye of the law, a wrong-doer or a trespasser. Even before that period has fully elapsed, according to Blackstone, his mere possession is prima facie evidence of his right, and his title, though yet imperfect, is gradually ripening to perfection. 2 Black. Comm. 196. When that period is completed, lie has acquired a good, indefeasible title, by possession, — a title by which our estates are quieted from suits at law, and the greater part of the lands in this state are secured j for few landholders can trace their titles to any original grant, and fewer still can make their present lines, boundaries, and number of acres, compare with their antient surveys.

By a statute of this state, passed in May 1667, it was enacted, that all persons who then stood possessed of lands, claiming them in their own right in fee, and who should not be interrupted by some other person, laying claim thereunto, and prosecuting such claim, sometime betwixt the publication of that act and the last of November 1668, should have right to enter and record the same to themselves, their heirs, apd assigns, and by that record should have good title to hold the same firm to themselvés, their heirs and assigns forever. Our statute giving title by fifteen years exclusive possession, and ouster of the owner, was passed in May 1684.

In tracing out the origin of these statutes, we find that the legislature of Massaclmsetts, in 1657, passed an act, confirming an absolute title in fee simple, to all persons, who had possessed and occupied, as of their own right in fee, any houses or lands, from the year 1652, and should so continue, without suit or disturbance, for five years from and after the 20th of May 1657 | and a second act in 1697, confirming the title in fee to all persons, who had possessed lands in the same manner, exclusively, from the first of October 1692, and should continue so to possess, without molestation, till the first of October 1704. See Acts and Laws of Massachusetts, Green’s edit, in 1726, p. 90, and 91.

These statutes directly grant and establish an indefeasible title by possession in the actual occupant (or disseisor, if you please) against any legal owner, by original grant or deed, who shall have suffered himself to continue ousted and dispossessed, and shall not make his entry, or prosecute his claim to effect, within the times specified in the several clauses of limitation.

Our statutes concerning the possession of lands, and the necessity ¡of recording deeds, in order to secure the title, were enacted at an early period, and designed for the encouragement of actual settlers. Lands uncultivated were then of little value, as is the case in all new settlements ; and the man, who, without previous legal title, entered unmolested, cleared, cultivated and enclosed a new farm in the wilderness, rendered it productive by his labour, or tenantable by the erection of a comfortable cottage, was justly considered as having a greater equitable right in the land, on account of his betterments and improvements, than he who had merely obtained a title to it, by grant or purchase, in its wild state, and had never taken any steps towards its clearing and cultivation. The spirit of the times was on the side of the actual settler j and our ancestors could no more endure, than the shepherd in Virgil, that a mere grantee should demand their possessions, enjoy the fruit of their labours, and proclaim with authority, — Tíme mea sunt; veteres migrate Coloni!

I am of opinion, that no new trial ought tobe granted.

In this opinion Edmond, Smith, Brainard and Baldwin, Js. severally concurred.

Swift, Ch. J.

In this case, it is agreed, that if the plaintiff, when entry and demand were made, had title to the land, this would prevent the defendant from acquiring title by possession : so that the question is, whether a title to land can be acquired by an unrecorded deed. The court on the circuit were of opinion, that no title was acquired till the deed was recorded. This must depend on the construction oF the statute respecting deeds.

This statute requires, licit all grants of lands should be in writing, subscribed by the grantor, attested by iwo witnesses, and acknowledged before an assistant or justice of the peace, before they shall he accounted to be complete. When this is done, such deeds are complete, and the title passes, unless some'-hing further is required by statute.

This statute further enacts, that no grant, unless recorded, shall be accounted good and effectual to hold the land againsi any person but the grantor, and his heirs only. This is a most explicit provision, that a deed, though unrecorded, is good against the grantor and his heirs, and, as it respects ¡hem, renders unnecessary the recording of it. But the question still remains — against whom is an unrecorded deed void? It is admit ted, that a literal construction would render it void against every body, excepting the grantor and his heirs. Bui why should a deed unrecorded be declared void against strangers and trespassers, who have no colour of right ? Is there any reason for this provision, except for the benefit of subsequent purchasers or assignees, who may have an interest ?

To ascertain against whom deeds not recorded were intended to be void, we must consider the object and the design of the legislature, the evil that existed, and the mischief to be remedied.

The common law does not require a deed to he recorded : and one that is prior in date will operate against a subsequent one, on good consideration, and without notice. It will readily be seen, that this opened the door to the practice of many frauds. Heeds were, therefore, required to be recorded, to give notice to purchasers, and prevent imposition. They might have valuable rights to he affected. Bu’ strangers mid trespassers, having no colour of claim, can have no lights to be protected; and not the shadow of a reason can be given, why an unrecorded deed should be valid against; the grantor, and void against a trespasser.

Courts, therefore, in the construction of this statute, considering the sole object to be notice to purchasers, have decided, that a deed unrecorded is void only against the assigns of the grantor; for they alone can want notice,— they alone can have interests to be affected. It has also been repeatedly, and uniformly, decided, that an unrecorded deed is valid against a subsequent deed, though recorded, if the purchaser had notice of the existence of the prioi1 deed. This conclusively settles the point, that a deed not recorded is good against every body but the assigns of the grantor : for if it is good against a subsequent purchaser with notice, it must a fortiori be good against a trespasser, who can have no possible claim of notice.

Our statute is different from the statute of enrolments in England, 27 Hen. 8. c. 16. There it is declared, that no land or hereditaments shall pass, whereby any estate of inheritance or freehold shall be made, or any use thereof, by reason only of any bargain and sale, except the bargain and sale be made by writing, indented and enrolled in one of the courts of Westminster, &c. within six months after the date of said writing. But notwithstanding the positive requirement of the statute, it has been there decided, that a deed not enrolled is valid against a subsequent purchaser with notice.

In Massachusetts, it is required by statute, that a deed must not only be signed, sealed and acknowledged, but also recorded, to pass the land | yet it has been decided, that the provision for registering conveyances is to prevent fraud by giving notoriety to alienations; but if the second purchaser has notice of the first conveyance, the intent of the statute is answered, and his purchase afterwards is a fraudulent act. This clearly shews, that courts have never held, that the recording of the deed is essential to the transfer of the land, Nocross v. Widgery, 2 Mass. Rep. 506.

But where the deed is unrecorded, a subsequent purchaser, without notice, shall Isold the land, not because the grantor had a title, huf because the inireeorded deed is then rendered void, to prevent a fraud and imposition upon such subsequent purchaser.

If the fee of the land docs not vest in the grantee, when the deed is unrecorded, it may be asked, where is it i It cannot be in the grantor ; for the deed is valid against him and his heirs : and the grantee could maintain disseisin against him, without recording it. If it be said, that the deed is good against the grantor and his heirs, and not any body else, then the consequence is, that the grantee has a good title against the grantor, who once had right, but not against strangers, who never had any rights; and that the grantor has no title against the grantee, but a good one against strangers. Here would be two distinct, co-existent titles in fee-simple in different persons. If the fee passes from the grantor, and does not vest in the grantee, then it would be in abeyance.

To avoid these absurdities, it is held, that the fee does not pass from the grantor till the deed is recorded ; but as it is conceded to be operative against him, it is said, that it is good by way of estoppel; that is, the grantor is estopped to deny that he has conveyed the estate to the grantee. But the statute explicitly declares an unrecorded deed to be valid against the grantor and his heirs. How, then, can it he said not to pass the title, but only to operate as an estoppel against the grantor! It may, with equal propriety, be said, that deeds, when recorded, never convey the estate, but only operate as an estoppel on all the world to deny the estate has been transferred.

An estoppel is where, by record, contract, or some act, the party is estopped from alleging the truth. If a man should execute a deed of warranty of land, which he did not own, and should afterwards purchase the same land, he would be estopped, by his deed, to say he did not own the land when he made the conveyance. But how can a man, by executing a deed, be estopped from saying, that the grantee did not after-wards procure it to be recorded ? Sir Edward Coke says, where the verity is apparent in the same record, then the adverse party shall not be estopped to take advantage of the truth ; for he cannot be estopped to allege the truth, when the truth appeareth of record.” Co, Litt. 352. b. If the grantee should claim the land of the grantor, he would be bound to produce his deed and if unrecorded, the fact would be apparent; and by the same reasoning, the grantor could not be estopped from alleging the truth, that the deed had not been recorded ; and if that was essential in law to convey the estate, iie might then say no title had passed.

But admit an unrecorded deed to be good against the grantor, and his heirs, by way of estoppel; this removes no difficulty. The grantor will then have the record title, and can maintain actions, and hold the land against strangers, but not against the grantee. The grantee will hold the land, and can maintain actions against the grantor and his heirs, but not against strangers ; nor can he make entry on the land to prevent a trespasser from gaining a title by possession. No construction ought to be given to a statute, which will involve such manifest absurdity. On the other construction, that an unrecorded deed is good against every body, excepting the assigns of the grantor, all is plain and consistent. The grantee has a complete title ; but if he neglects to record his deed, then the statute declares it to be void against a subsequent purchaser without notice. The fee is in the grantee till the time of such second conveyance j and then, by operation of law, he is divested of his right, and it is vested in the subsequent purchaser.

But it is said, that this is repugnant to the letter of the statute, and that we are bound to give statutes a literal construction. No proposition is more incorrect than this. It is impossible that the legislature, in framing general laws, should be able to foresee all the consequences of their regulations 5 and it is well known, that a literal construction would often produce effects very different from their intention and calculation. To obviate this, courts have been obliged to adopt certain rules in the construction of statutes very different from a literal meaning, but consonant to the real intent of the legislature. These rules are become a part of the law of the land, and are as much to be regarded as statutes. Among a great number, I will only mention the statutes of limitation; against frauds and perjuries ,• and against fraudulent conveyances. Courts, pursuing the object and intent of the legislature, have, on the basis of these statutes, created a system of principles, highly conducive to the public good, many of which would vanish on a literal construction. If such a rule is io be applied to the statute in question, it must be applied to every one ; and there is no innovation that would produce a more extensive and mischievous effect upon our jurisprudence. But it is too late to contend for this. We are bound to take the law as we find it; and decisions upon statutes have the same obligation as the statutes themselves. We are not now at liberty to say, that a second purchaser having notice of the prior deed, can hold the land against it, because it was not recorded. If we depart from this decision, we break down first principles. If w e abide by it, we sanction the doctrine for which I am contending; for if the first deed be valid against the second, it must be on the ground that the title to the land passed by it, though unrecorded.

Further, this case proves the injustice of a literal construction of the statute. It is now to be decided, that the entry of the plaintiff, because the deed to his grantor was not recorded, did not save his right against the possession of the defendant 5 and thereby a stranger anda trespasser is enabled to cheat the honest proprietor out of his land.

I am of opinion that a new trial ought to be granted.

Goddakd J. was of the same opinion.

IIosmek, J.

If the plaintiff has a right of entry, it is perfectly clear, that the defendant has obtained no title by possession. The entry of Beardslee, with the assent of the plaintiff, in the year 1801, interrupted the continuity of possession ; and thus divided, there was not a sufficient length of occupation to give titie under the statute. The entry of Beardslee was, in legal construction, the entry of French. Co. Litt. 245. b. 258. a. Crowther v. Ramsbottom & al. 7 Term Rep. 650, 654. If the person last named had the right of entry, the entry of Beardslee gave him seisin, put him into the immediate possession, and made him the complete owner of the premises. 3 Black. Comm. 175. Co. Litt. 15'.

Whether the unrecorded deed to Bennett prevented the acquisition of title by the plaintiff, is the only disputable question.

It is provided by statute, that no grant shall be effectual to convey title, except against the grantor or his heirs, unless it is recorded at length. Stat. tit. 162. c. 1. s. 9. The defendant contends for the literal construction of this law. If the act is remedial, it must be expounded, not according to its totter, but in suppression of the mischief, and promotive of the object at which it was aimed. The intention of the lawmaker must be accomplished. On this principle it is, that, a matter declared by statute to be •void, has, in some instances, been considered as voidable only : and leases which the law * literally prohibited to be made for more than twenty-one years, when made for a longer period, have been adjudged valid. Lincoln College’s case, 3 Coke, 59. 60, 1 Black. Comm. 87, On a subject so familiar, it is alone necessary to observe, that in pursuing the object of a law, the construction sometimes enlarges the letter, sometimes restrains it, and sometimes is contrary to it. Stowel v. Lord Zouch, Plowd. Rep. 365. Eyston v. Studd, Flowd. Rep. 465, 467. 1 Black. Comm. 87. Heydons case, 3 Coke, 7. The King v. The Inhabitants of Everdon, 9 East, 101. Of the construction which goes beyond the letter, it may be observed, that the statute of 9 Edw. 3, against executors, by an equitable exposition, has been held to comprise administrators j and the act of 13 Edw. 1. respecting the bishop of Norwich, has always been extended to the bishops generally, because they were equally within the reason of it.

Instances of a restrictive interpretation, narrowing the literal operation of a statute, have been frequent. The act of West. 2. regards, in the terms of it, all bailiffs and receivers, but it is held not to extend to an.infant j and criminal laws of the most comprehensive expression, are not considered as including idiots or madmen. At the same time, a drunkard, whose powers of mind are, for the moment, utterly extinct, is embraced by the law.

By 1 Edw. 2. the breaking of a prison, by a prisoner confined for felony, is made felony $ but if the prison is on fire, and in order to save his life, the prisoner breaks it, this act, though directly contrary to the letter, is deemed to be no violation of the statute. Reniger v. Fogossa, Plowd. Rep, 13, All who have been abettors of an appeal, on w hich the party has been acquitted, by the statute of West. 2. c. 12. are made liable to damages; but the son who abets his mother, although within the words of the act, is not within the law. Partridge v. Strange & al. Plowd. Rep. 88. 2 Inst. 84. And in The King v. The Inhabitants of Everdon, 9 East 101. an order of removal, in opposition to the plain words of a statute, wst« affirmed. The letter of the statute” says Grose, J. “ is sufficiently plain, according to the common understanding of the words; but that would militate so strongly against the spirit and object of it, that we cannot be governed by the letter, w ithout entirely defeating this very wholesome lav, ,35 On the same ground, though in pointed opposition to the letter of the law, it has been established, that the treasurer of a state, a collector of taxes, or an executor, may sell an estate which is in the possession of others.

In fine, the most universal and effectual way of discovering the true meaning of a law, is, by considering the reason and spirit of it, or the cause which moved the legislature to enact it. For when the reason ceases, the law itself ought, likewise, to cease with it- 1 Black, Comm. 61.

It cannot, with any fairness, be pretended, that the law-under discussion is a mere arbitrary regulation : a positive institution, without any reason. It must he admitted, then, to be a remedial act, and the letter of it cun only sc far govern the construction, as it comports will» the intention of the legislature. What, then, was the cause w hich moved the legislature to enact it ? It has been said, that the statute intended to give a substitute for livery of seisin ; and that the record ing of the deed is the equivalent. I cannot, at all, accede to this position. So far from this, there is not, in point of legal operation, any difference between unrecorded deeds, whether there was, or was not, livery of seisin. A plain fact will produce conviction on this subject. The subsequent purcha ser, with notice of a prior grant for a valuable consideration; although the first deed was not recorded, acquires no title, ami the prior grantee is the legal owner. Willed v. Overton & al. 2 Root, 3.58. It has been determined, that a court oí law, on the strength of these facts, will recognize the title of the first grantee. This is in perfect accordance with the decisions in chancery, in relation to deeds required by law to be enrolled or registered. ‘⅛ The rule under the si.at, of Hen, 8. c. 16. ever has been, that enrolment., by a subsequent bargainee having notice of a prior bargain, for a valuable consideration, whether by actual agreement to pass immediately, or by articles, is not material, for he is equally affected with that notice as if his conveyance was by feoffment, lease and release.” t Ves. 67. To the sanie effect are the deci - sions under the acts of parliament for the registering of deeds and wills. The purchaser with notice of an existing, unregistered deed, is barred by it; and the prior grantee will be relieved against the subsequent purchaser, whose deed is enrolled. Sugd. 437. It follows, then, that the statute concerning the recording of deeds, was not in lieu of livery of seisin, if it were, notice of a prior grant unrecorded, would affect a subsequent purchaser, just as much as the knowledge of feoffment without livery at common law, would affect a subsequent feoffee with livery ; that is, it would have no manner of operation* But it has an important effect. As to the subsequent grantee with notice of a prior deed unrecorded, this notice has the same operation, as if the prior deed had been put on record. It is, therefore, unquestionable, that the substitution of a matter of publicity by record, was not for the supposed reasonthat is, the provision of an equivalent for livery of seisin.

It has been contended, that until the deed is recorded, nothing but the use passes by the bargain and sale, and the freehold is still in the bargainor. This is incorrect, lie who has the use, is entitled to the possession, except so far as he is restrained by positive law, 2 Black. Comm. 337. Bacon v. Taylor, Kirby, 368,. This principle necessarily results from the stat. Hen. 8. c. 10. for transferring uses i-nto possession ; the law of which was brought over by our ancestors, gave birth to the deed of bargain and sale, which has been generally ⅛ use, and has been confirmed by judicial determinations. Bacon v. Taylor, Kirby, 3G8.

The only impediment to the seisin of the bargainee, is the law requiring deeds to be recorded. The record is not indispensable to the transmission of the freehold. If this were not true, notice of a prior grant could make no difference to the subsequent bargainee. But it does make an essential difference. The prior grantee, as against the person purchasing with notice, although his deed is unrecorded, has a complete title. It is, therefore, incorrect to say, the recording of the deed is necessary, to transfer the freehold to the bargainee, and until this act, that the use remains in the bargainor. This proposition takes for granted, that the recording of a deed is the legal substitute for livery of seisin, and lias been refuted before.

The cause which moved the legislature to enact the law for recording deeds, has, in my opinion, been much misapprehended.

The law for transferring uses into possession, in lieu of the notorious transfer of property by feoffment, and delivery of possession in a public manner, had given rise to secret forms of conveyance. The greatest estate might he granted In a private room, by the deed of bargain and sale, lease and release, and other forms of transmission, and no person, except the parties to the transaction, would have the most remote suspicion of the fact. It would obviously result, that the person who had once sold his estate, might sell it again, and the unprincipled would be under the temptation of committing a fraud, which could be perpetrated with ease and success. Ilencc, arose the statutes concerning the enrolment, registering and recording of deeds. They were intended to prevent fraud, and protect the bona Jidc purchaser of real estate, from prior secret conveyances, Sugil. 471. But, in respect of those, who had knowledge of previous grants, they were in no danger of fraud. They were not in the view of the legislature. They wanted no protection. Of consequence, they are left as they were before the law was enacted. Tf they know of a grant, they have all the benefit that a rcc-ord could give j and as to them, the deed is considered as if it had been recorded.

Such a construction, however, it is now contended, shall be put on the statute, as shall protect disseisors and. trespassers, who have no higher plea than this, that they have wantonly entered on the property of some person, without the shadow of right. In respect of such persons, it is said, that an unrecorded deed, of which they had no notice before thrir transgression, cannot b gally operate. Then it must; be insisted, that they are within the, protection, deliberately and intentionally provided for them, by the law-makers. This supposition is next to impossible. To pass an act for the protection of such persons, would be for the encouragement and reward of transgression. No law-maker can justly be considered as having done this, unless he regarded torts with a favourable eye, arid sympathised will) the wrong-doer. The construction contended for, in my judgment, is wholly inadmissible. I am, therefore, of opinion, that the protection of the statute for recording deeds, must be restrained to the bona fule purchaser, w ithout notice of a prior grant.; am! that, as against the defendant, a mere tort-feasor, the plaintiff has a legal title. This, I believe, is a construction of ihe -'.uuuti* in reference to its object, and complying precisely with the legislative-intent.

I would advise a new trial.

Gould* J.

I am perfectly satisfied, that the direction to die jury was wrong. Indeed, I have not been able to bring my mind to doubt upon the subject, for a moment.

As the deed from Stratton was recorded, before the suit was brought, the plaintiff’s title is complete, according to any view that has been taken of the case, on either side, unless he is barred by the statute of limitations. In my judgment, his right, as against a tort-feasor, would stand upon the same ground, if that deed had never been recorded : but it being actually on record, his right of recovery is, confessedly, established, unless he has lost his title.

Is he barred, then, by the statute of limitations ? This seems iinposssible : for he not only entered, but held possession, for a considerable time, within fifteen years before the action was commenced. It is contended, however, that this entry and possession cannot avail him, 1st, because he had, at that time, no right of entry — the first deed being, then, unrecorded ; and, Sndly, because, if he had, he still actually entered under a distinct claim of title, which he then supposed to be good, but which has proved defective. How the latter consideration can make any difference in the case, I am unable to comprehend. For the ouster was equally interrupted, and the act of taking and holding possession, by the plaintiff, w as the same, under whatever claim lie entered. And where the possessory right to property is united with the actual possession, courts of justice are not to enquire whether the party reasoned correctly, or not, as to the preferable evidence or ground of his title, or as to the comparative strength of his different claims. And hence it is, that a defendant in trespass, may justify under any sufficient title, though he entered, claiming under a different one. Crowther v. Rams-bottom & al. 7 Term Rep. 650.

To return, then, to the first objection : — had the plaintiff a right of possession, at the time of his entry ? If he had not, it is difficult to understand, how he can he barred by the adverse possession of the defendant, or others. That he should have had a right of entry, for the purpose of being barred bv disseisin, but none, for the purpose of making an available entry, to preserve his title, is to me wholly unintelligible. But to state the argument, as I suppose it is intended to be understood, (for I am disposed to give it its full effect,) it stands thus: Stratton’s deed, while unrecorded, did not transfer the title, even as against wrongdoers 5 and of course, the right of entry, even as against them, remained in him; but he was barred by a fifteen years’ continued mister t therefore, the plaintiff, claiming under him, is, by necessary consequence, also barred. This 1 believe to be a fair representation of the argument. But the main proposition, which lies at the foundation of it, I wholly deny, Por whatever may have become of the right of possession, it could not, after Stratton’s deed was given, be in him : since, by the very terms, as well as the plain reason and acknowledged construction, of the statute, his deed, though unrecorded, was “ good and effectual,5’ as against “ himself ímú his heirs.” Stat. tit. 162. c. 1, s. 9. And if the right of entry was not in him, it was, of course, in the plaintiff4 unless we adopt the absurd conclusion, (equally decisive, however, against the defendant,) that it was in no one. For it confessedly was not, then, in the defendant j and it is not claimed to have been in any stranger. And if the plaintiff had then the possessory right, he must have lost it, if ai all, by disseising himself I For the period of his own possession is computed, to make out the fifteen years’ disseisin, under which the defendant claims.

But it is urged, that we are bound down to the letter of the statute ; and that, therefore, a deed, not recorded, conveys no title even as against wrong-doers : because, by the terms of the act, such a deed is not good, except, as against the grantor and his heirs. This is, certainly, a novel rule, for the construction of remedial statutes ; and, moreover, directly opposed to an old one, universally recognised, as l have supposed, by courts of justice, in all times, (¿ni hard in litera, hard in curt ice, is a maxim, as ancient; as any rule of construction, with which 1 am acquainted. Statute law, it is to be remembered, is not penned in the language of special pleading: and in expounding remedial statutes, to adopt a construction, strictly literal, would be, in almost every instance, to defeat the plain intention of the legislature, and wantonly to abrogate ail the great, cardinal rules, preScribed in our books, for the interpretation of written law . míes, founded in the highest wisdóm, and approved by the experience of ages. The objection is, merely, that the exception in the statute, makes no express mention of wrongdoers. It would have appeared to me, I confess, very extraordinary, if they had been expressly mentioned. For bow could it be expected, that a legislature, in establishing a mere rule of priority, between different claims of title,, should formally provide, that a person claiming under the acknowledged owner of land, by a deed, confessedly valid, as against Aim, should have a right to hold against a stranger, having no pretence of title at all! Such a provision would have been as superfluous — I might almost say, as ridiculous —as it would be expressly to enact, that the true owner of property shall be, by law, entitled to hold it, against all persons, who have, confessedly, no colour of claim to it.

The reason and spirit of the statute are perfectly obvious. It is eminently one of those acts, of which the true construction is to be found by recurring to the old law, the mischief, and the remedy.” By the old law, (the law, as it stood, before the act was passed,) the first grantee held, to the exclusion of all subsequent purchasers of the same subject, either by deed or execution, though the latter bad no notice of the prior conveyance. The mischief was, that such honest purchasers were liable to be defrauded, by former secret conveyances, for want of notice. And the remedy intended was, to furnish them with the means of obtaining the requisite notice, through the medium of town-records ; or rather, to oblige the prior purchaser to furnish such means of notice, or run the risk of losing his prior title. To this end, it wap enacted, that no deed, kc. of houses or lands, should be good and effectual, against any other, than the grantor and his heirs, unless it were recorded. As between the grantor and grantee, then, a deed, not recorded, is confessedly good. It has, (¡f course, as between the 'parties, the same effect, since the, statute, as it would have had before ; that is, the grantee takes the place of the grantor, and has title against all per sons, against whom die gruid or would have had it, if lie had not given the deed. Against whom, then, could Stratton-have holden, if lie had never executed the deed in question i Why surely, against all wrong-doers, and indeed, against all persons whatever, except such, as might afterwards acquire *itle under him. Prerisub such, of course, were the rights of the plaintiff, at the time of his entry ; that is, his title ⅞¾ complete, except as against those, (if such (here were,) who might have acquired subsequent title, by deed, or otherwise, from Stratton, the original mortgagor 5 those, in other words, for whose protection the statute was made. Can any one suppose, that it was any part of the object of the statute, to protect mere professed trespassers against fraud, from prior unrecorded titles ? The supposition would involve a plain absurdity. As to them, the rights of all parties in interest, must remain, as at common'law. I am, therefore, clearly of opinion, that a new trial ought to be granted.

New trial not to be granted.


source: Caselaw Access Project

author: Swift, Ch. J. Smith, J. Gotjld, J.

license: Public Domain

text:
    Tryon and another against Hart :
    New-Haven,
    November, 1816.
    IN ERROR.
    THIS was an action, in common form, on a promissory note, executed jointly by Edward Tryon and Richard, Try* on, on the 18th of June 1813, for 152 dollars 22 cents# payable in one year from date, with interest. The defend ants pleaded in bar, <s that after the making of the promise and undertaking in the plaintiff’s declaration mentioned, and before the date and impetration of the plaintiff’s writ, via, on the 22d day of November 1813, at Saybrook, the plaintiff, by his certain writing of release, under his hand well executed, and for the consideration of 480 dollars, in a promissory note then and there given by the said Edward Tryon, and a mortgage of his real estate as collateral thereto, did release and forever quit-claim to the defendants the said promise and undertaking in the said declaration mentioned, and all sums of money then due and ow ing thereon, and all demands whatsoever against the said Edward Tryon, when the said as by the will ap-promissory note last mentioned should be paid, said release, in the words and manner folio win pear, via.

      “ Saybrook, 22d of November, 1813.
    « Received of Mr. Edward Tryon a mortgage deed for 480 dollars, which is predicated on a note of hand, dated 1st of October 1813, for 480 dollars, payable in two years from date, whicli, when paid, is in full of all demands of HU ska Hart and Hart <⅜ Sheffield.

      In a suit Brought by A. against B. and C. on their joint promissory note, the defendants pleaded in bar a writing executed by A., subsequently to the date of the note, acknowledging that he had received of B. a certain other promissory note secured by mortgage, and declaring that this note, when paid, would be in full of all demands: held, that such writing was no release of thé floté ⅛ suit.

      Elisha Hart.

      Hart ⅜ Sheffield.”'

    The ])lea then averred, that before the date and impctration of the plaintiff’s writ, the defendants paid the sum specified in the note mentioned in said release, with the lawful interest.
    To this plea there was a demurrer ; and the court adjudged the plea insufficient. To reverse that judgment the present writ of error was brought.

      Sherman and L. H. Clarke, for the plaintiffs in error,
    contended, 1. That the words of the release must; be so construed as to have some effect ,• that it was clearly against the intention of the parties to discharge the note recited, for the very object of mentioning it was to exclude it from the general operation of the discharge ; that it was absurd to suppose that they meant only to declare the future effect of paying that note j and that, of course, the general words of the release were unrestrained by the recital, arid must operate upon the note in suit. Lilt. sect. 508. They observed further, that in this case, there was no recital of the siibject matter of the release, but only of the consideration on which the release was executed. They then contended,
    2. That a release to one of two joint obligors, is a release io both. Bac. Mr. Release, (G.)

      C. Whittelsey, for the defendant in error,
    contended, 1. That where there is a particular recital in a deed of release, and then general words follow, the latter shall be restrained by the former. 2 Roll. Mr. 409. (A.) pi. 5. Bac. Mr. Release, (K.) -Knight ⅜ al. v. Cole ⅝ nx. 3 Mod. 277. S. C. Carth. 118. S. C. 1 Show. 150. Thorpe v. Thorpe., 1 Ld. liaym. 235. Butcher v. Butcher, 1 dS'evj Rep. 113. Lyman v, Clark ⅜* al. 9 Mass. Rep. 235.
    2. That although where there arc two or more obligors, and the obligee releases one from that obligation, it discharges all ; yet no case goes so far as to decide, that if there he a joint obligation, and a genera! release of claims against one, such release discharges the joint obligation,

      3. That at any rate, the plea is bad, because the non.therein stated is alleged to have been given on the 22d of November 1813, whereas the note mentioned in the release was dated list of October 1813.
   Swift, Ch. J.

It is a well established rule, that where there are general words, all alone in a release, they shall be taken most strongly against the releasor but where there is a particular recital, and then general words follow, the general words shall be qualified by the, particular recital., 5 line. Mr. 710. (Wils. edit.) As where there was a release of an equity of redemption, and of all actions and demands, it was holdcn that the equity of redemption only was released,. Thorpe v. Thorpe, 1 Ld. Raym. 235. This construction must have been founded on the presumption that such, was the intent of the parties j for though the general words would comprehend all demands, yet the particular recital shewed that nothing else was contemplated by the parties. This rule, when simpliiicd, amounts to this, that with respect to a release, we are not bound to give a construction according to the literal import of the words, when such con struetion would contravene the manifest intent and object oí the parties j and this results from the great rule, that contracts arc to be construed according to the intent of the parties.

This note is dated the 18th day of June 1813, payable in one year, and is executed by Edward and Richard Try on On the 1st of October 1813, Edward Try on gave a note to Elisha Hart, for 480 dollars, payable- in two years. At this time, both these notes must have been valid ; and there is no allegation that the note in suit was included in the last note.. On the 22d of November 1813, Edward Tri/on executed a mortgage deed to Elisha Hart to secure the note for 480 dollars, and Hart gave him a writing acknowledging it, and declaring that the note, when paid, would be in lull of all demands.

It appears, then, at the time of giving tine receipt set forth ¡n the plea in bar, there were two valid notes, which liad beet; previously given, of different dates, payable at different times, and against different parties, and that nothing was then done but to execute a mortgage deed to secure one oi them, and to give the receipt in question. Under these cir ⅛:instances, ir can never-be presumed, or supposed, to have been the undemanding and meaning' of the parties, that the taking of t he mortgage deed as a collateral security for one of these /Kites, should operate as a consideration for the discharge of the other. This would be the most preposterous thing imaginable. If, then, the general words made use of, would release the note in suit, on a literal construction ; yet such construction ought not to be given, because it would be against the plain intent of the parties.

But I apprehend, on a just construction of the writing itself, it does not amount to a release ; for there is no con sidcration to give it that effect. The only consideration expressed, is the reception of a mortgage deed predicated on a certain note. This could be no ground for a discharge of all demands ; nor is it so expressed ; nor is it expressed, that the note itself was received in full of all demands. The writing contains no words which express or imply a release. It is no more than a written declaration or ac knowledgment, made subsequent to the giving of the note, that when paid, it would be in full of all demands. It cannot, there foi e, be pleaded as a release ; but the defendant might have alleged, that at the time of giving the note, the parties came to a settlement of all demands, and that the note for 480 dollars, was given for the balance due in full of all demands; and then this writing would have been proper evidence as an acknowledgment of the fact by the plaintiff, in such case, however, it would not have been conclusive evidence : but it would have been competent for the plaintiff ro have shewn, that the note in suit was not embraced in the settlement. For though a complete discharge, on good consideration, is conclusive; yet the mere acknowledgment or declaration of the party respecting a fact, is not conclusive ; it is proper evidence, liable to be rebutted, or explained, like any other testimony.

I am of opinion that there is no error in the judgment complained of.

In this opinion Truhbuu, Edmond, Brainahd and Goddard, Js. severally concurred.

Smith, J.

We are presented with two questions in this ease : first, Is this a release of all demands against Tryon so as to bar a suit on this note, were it given by him solely l if 30⅜ then secondly, Docs a general release to one joint ob-ligor bar an action on a joint obligation ?

As to the first question, it would seem to me, that no person cou^ mi(l over fhe writing in question, without seeing in it a release of all demands. It begins by mentioning the mortgage, and then the note on which it is predicated. Had the note been first mentioned, and then the mortgage, the meaning would be the same; and by the terms “ which, when-paid*' the debt is intended, which is secured both by note and mortgage, Nothing to my mind is more obvious than that the parties must have made a full settlement of all their concerns, and that the note and mortgage were given to secure the balance that was due.

But it has been argued, that the general words in full of nil demands,” must be construed to mean nothing but the note and mortgage $ and the rule is relied on, that general words in a release may be restrained to the particular subject matter, which the parties appear to have had solely in view. That the thing received, however, as the consideration of a general release, should be construed to restrain the general words, is, 1 believe, quite novel; and in the release itself, no particular debt is mentioned, and nothing but a general release of all demands is to be found. The debt secured by the note and mortgage, mentioned in the release, is the only one not released by it : for that, by the express terms of the release, is to be paid.

It appears to me, therefore, that this is a release to Edward Tryon, one of the defendants, of all demands. Will then such a release to one of two joint obligors bar an action against them both i If it is a bar to a demand against Edward Tryon, it must, of course, be a bar to a demand against both j because judgment cannot be rendered against one, without including the oilier also.

Baldwin, J. was of the same opinion.

Gotjld, J.

In my opinion, the judgment is erroneous.— The exception, taken to the manner, in which the release is pleaded, was not much urged at the bar ; and I believe, not ultimately relied upon. But whether it was, or not, it is, in my judgment, not well founded. For, if the alleged repug nancy actually exists, it is wholly immaterial; and the words, i£ then and there,” may be treated as surplusage : the plea being good without them. But there is really no repugnancy in the plea, either substantial, or formal. The note, recited in the release, may have been dated on one day, and delivered on another ; and the fact is plainly averred to have been so, if the allegation in the plea is taken, as it must be, in connex-ion with the recital.

The only question, then, is, what is the true construction, and legal effect, of the instrument, pleaded in bar of the original action ? Upon this point, there can be no doubt, that a general release of all demands, made to one of two joint, or joint and several, debtors, is a complete discharge to both. Litt. s. 376. Co. Litt. 232. a. Hob. 10. Salk. 574. Nor is there any ground for saying, that the release, to have this effect, must refer, in terms, to the specific debt, or demand, in question. The rule of law requires no such reference.

But it is contended, that the general words, “ in full of all demands,” are restrained, in the present case, by the pre vious particular iecital. There are cases, in which such general words of release are thus restrained; but none, in which they are virtually erased, by being, as they are in the judgment before us, absolutely rejected. In all those cases, there is a particular duty, or demand, recited, upon which the subsequent general words arc left to operate, and in discharging which they have their full and proper effect, according to the apparent intention of the parties. Such was the case of Knight & al. v. Cole & ux. 3 Lev. 273. S. C. 3 Mod. 277. S. C. Carth. 119.; and such, without exception, has been every other case, in which general words of release have been restrained by a previous recital. In every instance of the kind, to be found in the books, it has been an acknowledged rule, that the release must be so expounded, as to give some effect to the general words. The single anomalous determination, cited by Tanjleld, 2 Rol. Abr. 409., I lay out of the question ; as the existence, as well as the authority of it, has been questioned,(1 Show. 155. Bar,. Mr. Release, K.) ; and as the case of Brace v. Catlin, 1 Day's Ca. 275. determin - ed in this Court, is directly opposed to it. Even in that determination, however, (if it was ever made) the same rule of construction was, according to Tanjleld’s statement, fully recognized, though evidently misapplied. But in the present case, there is nothing previously recited, upon which the general words can possibly operate. To restrain them, then, to the subject of the recital, would be, in effect, to strike them out of the instrument. For, as they, confessedly, do not discharge the note, or mortgage, previously mentioned — which, by the way, are the only subjects recited, and arc manifestly introduced merely as the consideration of the instrument, it follows, demonstrably, that unless they discharge demands not recited, they can have no effect whatever. To say, that by the words, “ which, when paid, is in full of all demands,” nothing more is meant, than that when the note, before referred to, is paid in full, such payment shall be in full of the note itself, would be but little short of serious trifling. It seems impossible, then, to restrain the general words, unless the object of construction is to defeat, instead of effecting, the intention of parties, and to destroy instruments, instead of expounding them.

Hosmbr, J. gave no opinion, having been of counsel in the cause.

Judgment affirmed,


author: Swift, Ch. J. Hosmkk, J. Coui.ii, .1.

text:
    Buck against Cotton.

      New-Haven,

    November, 1816.
    THIS was an action against the defendant as indorser of a promissory note, made by one ScovU, dated the 21 si day of February 1815, and payable ninety days after date.
    The cause was tried at Middletown, July term 1816, before Swift, Ch. J. and Goddard and Hosmer, Js.
    On the trial, the plaintiff offered evidence to prove, that he demanded payment of the note from the maker, on the 25th of May 1815 j and that he gave notice to the defendant, that the note had become due, and was not paid, and that lie should look to him, the defendant, for payment, on the 24th, The plaintiff also offered evidence to prove, that Scovil, at the time the note was executed, was utterly insolvent, and had no estate or means of payment, and so had ever since continued; that this fact was then well known to the defendant : and that the defendant, with such knowledge, indorsed she note, having no interest in it, merely to give it credit and currency. To the admission of the last mentioned evidence the defendant objected ; and the court ruled it out. In tin* charge to the jury, the court ins tended them, that if they should find that the plaintiff demanded payment on the 25!.h cl' May, and gave the defendant notice of non-payment on the 4th, they must, nevertheless, find a verdict for the defendant. The defendant having obtained a verdict, the plaintiff1 moved for a new trial, on the ground that the evidence offered hy him w as improperly rejected, and that the charge 1o the jury was incorrect. The questions arising on such motion were reserved for the consideration and advice of the nine Judges.

      " JL being' insolvent, made a promissory note payable to It. or order,which B. with full knowledge of such insolvency, and having given no value for it, indorsed, to give it credit and currency :
    Held, that notwithstanding these circumstances, the indorser was entitled to retóte notice.

      Jiassdl and Sherman, in support of the motion,
    contended, that Sard! being from first to last utterly insolvent, and this fact being known to the defendant, the latter was not entitled to notice. They relied upon Be Berdt v. Atkinson, 2 H. Black. 336. as an authority in point; and referred to the class of cases, deciding, that the drawer of a bill without funds in the hands of the drawee is not entitled to notice, as affording an analogical argument in support of their position.

      C. Whittelsey, contra,
    cited Nicholson v. Gouthit, 2 H. Black. 609. Jackson v. Richards, 2 Cuines 343. Pons’s executors v, Kelly, 2 llayw. 45. Esdaile <Sf al. v. Sowerby ⅝ al. 11 East 114. Smith ⅜* al. v. Becket, 13 East 1ST. Sandford v. Billaway, 10 Mass. Rep. 52. French?s executrix v. The bank of Columbia, 4 Crunch 141.
   Swift, Ch. J.

No one principle of the common law is better settled than this j that the indorsee of a negotiable note must make demand of payment of the maker, when it becomes due, and give immediate notice of non-payment, to entitle him to recover of the indorser. The only contradictory decision is De Berdt v. Atkinson, 2 H. Bla. 336. where it is said, that a known insolvency of the maker of the note will excuse demand and notice : but this case has since been overruled in England, and in this country ; and the contrary doctrine established.

This rule of law is founded in good reason, and results from the nature of the contract, it is the duty of the indorsee to use due diligence to collect the note : he ought- to make demand of payment from the maker, when it falls due; tor otherwise, it cannot be known but that it would have been paid. If riot paid, he ought to give immediate notice to the indorser, to give him an opportunity to withdraw his fund:-; from the hands of the maker, or to pursue his remedy on the note.

It is agreed, that if there be not a known insolvency, at the time of making the note, and continuing till it becomes due, demand and notice are necessary : but it does not follow from the insolvency of the maker of the note, that he will not pay it at the time ; or that the indorser cannot collect it, it he has seasonable notice of the non-payment. The maker of the note may have resources at command, though insolvent r, or he may have friends by which he would be able to pay, when demanded ; or special circumstances might exist, which would induce him to pay the indorser. As then insolvency is not conclusive evidence that the note will not he paid, the indorser is entitled to seasonable notice of the non payment, to enable him to have recourse to his legal remedy.

If the rule is adopted, that a known insolvency shall excuse from giving notice, this might lead to disputes ; as it would often he a fact difficult to he ascertained; hut if notice he required, this could easily be given, and easily proved j and frequent litigation might thereby be prevented.

The only case that bears any analogy to this, is that the want of funds in the hands of the drawee of a bill shall excuse from giving notice to the drawer of non-acceptancc. But if the drawer has no funds in the hands of the drawee, lie can never sustain a loss for want of notice, as he has no funds to withdraw, and can bring no action : it would, therefore, be useless to give him notice. In the case, however, of an indorsed note, the indorser has a remedy on the note, which makes the case entirely different from that of a bill of exchange where the drawer has no funds in the hands of the drawee.

I would not advise a new trial.

In this opinion Trumbull, Edmond, Smith, Brainard, Baldwin and Goddard, Js. concurred.

Hosmkk, J.

The notice in this case was an entire nullity. It was given the day before the note fell due, and before demand made of the maker; of consequence, before there had been any default. Wiffin v. Roberts, 1 Esp. Rep. 262. Jackson v. Richards, 3 Caines 344. Jones v. Fates, 4 Mass. Rep. 345.

It is. as a genera! rale, admitted, ihal a flee legal demand made on the maker, reasonable notice of non-payment must be given to the indorser. The reason is obvious. The contract of the indorser is not absolute, but conditional. It is merely this : “ If you use due diligence in demanding the money, and the maker refuses to pay it, and you, will give me reasonable notice of this, I will pay yon.” If the stipulation requiring notice were utterly useless, it might, with propriety, be disregarded. But if the maker of the note is insolvent, this cannot with truth be asserted. It would be in opposition to known possibilities, and repeated decisions. “ It is no excuse,” said Lord Mansfield, “ for not demand nig payment on a note or bill, or giving not ice, that the maker or acceptor has become bankrupt, as many ways may remain of obtaining payment, by the assistance of friends, or otherwise.” Doug. 515. 1 Term Rep. 408. 2 H. Black. 612. 11 East 117. “ The insolvency of the maker renders me indorser’s remedy less valuable $ it does not necessarily render it worthless.” Sandford v. Dillaway, 10 Mass. Rep. 54.

It was contended in the argunscnl, that as Scor'd was a known insolvent, and the defendant indorsed his note merely to give it credit and currency, the indorser must be considered as having waived notice, and become co-debtor with him. This conclusion is most unwarrantable.. If the defendant bad intended to bceome absolutely bound, he would have, given anote with Scovil, or, in some explicit shape, would have assumed the payment of the debt. But an in dorsement of a note does not import an absolute engagement. it is a collateral contract and conditional agreement : from its nature and frequency, perfectly intelligible : and always implying the same obligation. There is nothing in tiie form of the indorsement; nothing in the established usage of merchants : nothing in the demands of justice, which distinguishes the case under discussion from ordinary cases. The defendant appears in the well known character of an indorser ; and in that character he must be treated, or the court cannot escape the imputation of making, instead of constrain", the contract.

It has been urged, that this case is analogous to those where the drawer of a bill has no effects in the hands of his drawee. In those cases, he is not entitled to notice. I answer, that there is no analogy. His drawing the bill is a fraud ; he knows it will be dishonoured ; and in the last resort, he is answerable, without the possibility of recourse to any other person. 1 Term Rep. 405. 2 Term Rep. 713. But in relation to an indorser for the accommodation of another, the very reverse is true. He has committed no fraud ; he cannot know- that the maker of the note will not pay it: and he has a deep interest in notice of non-payment, that lie may call on him for satisfaction or security.

It is highly to be desired, that there should be a certain rule in these cases, which, in the event of the most hopeless bankruptcy, may be productive of benefit. But to render-notice unnecessary in the event of insolvency, is opening a door to expensive litigation, and much possible injustice Even in the instance of bills drawn on one who has no funda of the drawer in his hands, it has been the subject of regret « that the old rule requiring notice to be given, in all cases⅜ to the drawer, of non-acceptance of bis bill, was so far broken in upon.” “ But,” says Lord Ellenborovgh, “ I shall anxiously resist the further extension of the exemption.” 7 East 362.

There has been some inconsistency of decision concerning the liability of an indorser under the facts of this case ; bid the law is now well established. In the year 1794, a case occurred in the English court of common pleas, precise!} like the one under discussion. The court adjudged, that the defendant meant to guarantee the payment of the note” absolutely. De Berdt v. Atkinson, 2 H. Black. 336. In the succeeding year, Butter, J., one of the judges of the above mentioned courts again expressed the same opinion. Corney v. Da Costa, 1 Esp. Rep. 302. But in the year next sue reeding, the same court of common picas reversed their former decision x and on this subject the English courts have made no subsequent determination. Nicholson v. Gouthit, 2. H. Black. 609. The difficulty,” said the Lord Chief Jus tice, íÉ arises from the mode which the parties have chosen in which the guaranty shall take place, by the indorsement of a note. The question, then, is, whether, when the guaranty is taken in that shape, all the legal consequences do not follow* .... jo as to limit its generality l Upon consideration, I cannot say, that they do not follow | and they require a demand on the maker, and notice to the indorser, within a reasonable time.

In the states of New-Yark, Massachusetts and North-Carolina, the same question has been decided in a similar manner, Jackson v. Richards, 2 Caines, 343. Sandford v. Dillaway, 10 Mass Rep. 52. Pons’s executors v. Kelly, 2 Hayw. 45. In the case of Jackson v. Richards, Kent, Ch. J. said, When a person signs a note in the character of indorser, the presumption is, that he is to receive all the privileges of that character.” And in the case determined in Massachusetts, the court observe, « The indorser of a promissory note contracts, that he will pay the contents, provided the maker does not pay it, when regularly demanded of him, and seasonable notice of his refusal or neglect to the indorser. This dc-mand and notice he has a right to insist upon, for this reason, that upon payment by him, he may have his remedy over against the maker. And although the insolvency of the maker renders his remedy less valuable, it does not necessarily render it worthless.” I entirely concur in the reasons '-signed in both cases.

Coui.ii, .1.

According to the rule in the case of Be Berdt v. Atkinson, and that in Corney v. De Costa, which I consider as substantially the same, the evidence of the mak--r*s insolvency was improperly rejected. And I do not con-Isider those cases as over-ruled, or at all shaken, by that of Nicholson v. Gouthit, dr by any of the later English cases, ■\ cited at the bar. The grounds of determination, in the latter ⅜| cases, were essentially different, from those, which governed if die former; and were evidently so considered by the judges, ⅞ who decided them. And I cannot say, that I am actually | dissatisfied with the rule in Be Berdt v. Atkinson: For under the circumstances of that case, (which are substantially the same as those of the present,) the indorser may, perhaps, be regarded as a co-debtor, and his liability, according to the understanding of the parties, as primary. But, as a different rule has been adopted, by respectable authorities, in this country ; and as it is much more important, that a uniform rule be established, than that it he settled either way, rather than the other ; I am not inclined to dissent from the opinion of the Court. I will add, that Hie latter rule has, perhaps, one practical advantage over the former : It is more simple, and definite ; and its application, of course, less open to doubt and controversy, as being less dependent upon the particular circumstances of individual cases.

New trial not to be granted.