The People v. . Van Rensselaer

The material facts in this case are very simple. On the fourth day of November, 1685, in the first year of the reign of King James the Second, Dongan, the colonial governor, acting in behalf of the crown, granted in fee to two persons, both named Killian Van Rensselaer, and being, as it seems, cousins and descendants of another Killian Van Rensselaer, their common grandfather, a large tract of land, of which the premises in question are a part, to hold the same in trust for the right heirs and assigns of Killian Van Rensselaer, the grandfather, subject to a quit-rent of fifty bushels of good winter wheat.

About twenty years afterwards, in the third year of the reign of Queen Anne (Anno Domini 1704), the crown, by Lord Cornbury, then colonial governor, by patent under the seal of the colony, reciting the former patent and a great number of antecedent transactions tending to show that the Van Rensselaers were entitled to the land from the former Dutch government, and reciting also, that one of the former patentees had died without issue, whereby the other of them, described as the eldest son of Jeremias Van Rensselaer, became solely seized and possessed of the granted premises, gave, granted, and confirmed unto the surviving Killian Van Rensselaer, his heirs and assigns forever, the tract of land described in the former patent, to be holden of the Queen, her heirs and successors, in free and common socage, yielding and paying a yearly rent of fifty bushels of wheat in lieu and stead of all other rents, services and demands whatsoever.

The defendant, William P. Van Rensselaer, showed title under the last patent, by devise and inheritance from the last mentioned patentee.

The defendant's grandfather came to the title in 1747 and died in 1769, and during his time commenced conveying the premises in farms upon durable leases, which practice was continued by his successors in the title, so that in 1812, about eight-tenths of the lands had been thus disposed of. The premises for which the suit is brought are about one hundred and fifty acres, part of a parcel of two thousand acres of wild and unappropriated land. If either of these patents were operative grants, the defendant has shown title out of the people, and it is not important to inquire whether there are persons in existence, besides the defendant, who could make title under the heirs of Killian Van Rensselaer, the grandfather of the first patentees.

There is no pretence that the crown or the state has ever acquired title by forfeiture or escheat, or in any other way under the heirs of the first mentioned Killian, so that this case turns wholly upon the validity of the patents. The provisions which it is argued render the patent utterly void are those which profess to create a manor in the granted premises. It is declared in the first mentioned patent, and repeated in substance in the other, that the grantor makes and constitutes the tract a lordship and manor to all intents and purposes, to be called the Manor of Rensselaerwyck. The grantees are authorized in terms to hold a court leet and court baron, to award fines, have the customary writs, c., to have the waifs and estrays, deodands,c., and the patronage of any churches to be erected on the tract; and the freeholders of the manor are empowered to elect a representative to sit in the general assembly in the province of New-York. There is nothing in the patent, which, in terms, empowers the patentees to grant lands to be holden of themselves; but it is argued that the erection of a manor and the authority to hold the courts mentioned, which according to the English law are manor courts, necessarily implies the power to create suitors, who must of necessity be tenants holding of the proprietor of the manor, owing him suit and service. (Glover v.Lane, 3 Term R., 445.) This, it is said, is a violation of the statute, called quia emptores terrarum, passed in the eighteenth year of Edward first (Anno 1290). This statute, after reciting that the feudal tenants have sold their lands to be holden in fee of themselves, instead of the chief lord of the fee, whereby those lords have lost their escheats and other feudal perquisites to their "manifest disinheritance," enacts that "forever hereafter it shall be lawful to every freeman to sell at his own pleasure his lands or tenements, or part thereof, so nevertheless that the feoffee shall hold the same lands or tenements of the same chief lord of the fee and by the same services and customs as his feoffor held them before." A second chapter provides for an apportionment of the services in case of a sale of a part of the land out of which they issued. (Coke, 2 Inst., 500.)

The freedom of alienation thus conferred upon the military tenants was undoubtedly a very material amelioration of the severity of the feudal system, but at the same time the main object of the statute would seem to have been to secure to the great barons their profits arising out of these tenures. It is stated in the statute itself that it was ordained "at the instance of the great men of the realm," and it was clearly for their protection, though incidentally, and probably by its unforeseen operation, it proved a great relief to the inferior tenants. The evil was, that the chief lords were defrauded of the fruits of the tenures, and the remedy provided was, that every tenant, however remote, should remain the debtor of the chief lord instead of his immediate feoffor for the services incident to the tenure.

But as one may generally waive an advantage secured to himself, so it was held that the chief lord might forego the benefit of the statute by authorizing his tenant to make a subinfeudation, that is, grant lands to be holden of himself; but this could not be done by a mesne lord on account of the interest of his superiors. COKE, in commenting on the words, "so nevertheless, that feoffee shall hold, c., of the same chief lord," c., says: "These general words have a tacit exception, viz: unless all the lords mediate and immediate do assent thereto; for quilibetrenunciare potest beneficium juris pro se introductum." For this, two cases are referred to from the Year Books. In one of them the court holds this language: "But the king can license his tenant to make a feoffment to hold of himself; so can any one by the license of the lords mediate and immediate make a feoffment to hold of himself, notwithstanding the statute quia emptores terrarum; for this was made for their advantage, and therefore they can dispense with it." (Year Book, 27 H. 8, pl. 26, c. 5.)

As the king is lord paramount in all feudal tenures, no subject, since the statute, can, by his own authority, create a manor; and, as in England, all the land was granted at or soon after the conquest, it follows that English manors must have their origin prior to the eighteenth of Edward first. But as the king does not hold of any superior, he may grant land to be holden of himself, "for," says COKE, "hereby no man is restrained but he which holds over of some lord, and the king holds of none." (2 Inst., 67.) Therefore, if there are crown lands in England at this day, which have never been granted to a subject, they may, without doubt, be erected into royal manors. And cannot the king grant to his immediate tenant the right to make grants to be held of himself, the tenant, since thus there would be the assent of all the lords, mediate and immediate? The king's tenants in capite could not make such grants before the statutequia emptores without his consent. (Lewis on Perpetuities, 13, 14.) This was by force of the king's prerogative, and was an exception to the general rule which permitted subinfeudations by all lords except the tenants in capite. But I think that as well since as before the statute, the king could license his immediate tenant to alien to hold of himself, the tenant. In grants in frankalmoigne, the grantee necessarily holds of the donor, and not of the superior lord, because the services can only be rendered to the donor or his heirs, being generally to pray for his and their souls. (2 Bl. Com., 101.) LITTLETON, moreover, says that no common person can, since the statute, grant lands in frankalmoigne, because he cannot alien to be holden of himself, "but (he says) the king may give lands or tenements in fee simple to hold in frankalmoigne or by other services, for he is out of the statute." (§ 140.) In his observations on this section COKE says that a license of the lords mediate and immediate shall enure as a dispensation of the statute quiaemptores, so that as to lands already granted the consent of the king and all the lords mediate and immediate dispenses with the statutes; for "alienatio licet prohibeatur, consensu tamenomnium in quorum favorem prohibita est, potest fieri." (Co.Lit., 99, a; see Hargrave's note, No. 108, where it is shownthat the dispensation referred to is not the exercise of theunconstitutional prerogative of dispensing with statutes whichwas declared illegal at the revolution. 1 Thomas' Co. Lit., 363.) So also in the Natura Brevium, a book of great authority, at the place where grants in frankalmoigne are treated of, the author says, after declaring that the king may grant infrankalmoigne, "But it seemeth that another lord cannot grant such license to his tenant by reason of the interests of the lord paramount, but the king and all the mesne lords together may grant licenses unto the tenants paravail who have the fee of the lands, that they may alien the same to an abbot or prior to hold of him in frankalmoigne, or to grant the same unto a lay person to hold of him by certain services; because that the statute ofquia emptores, c., was made only for the advantage of the lords, and therefore they may all dispense with the statute." (Fitz. N.B., 211.) The principle is laid down in the same way in Bacon's Abridgment. "As the statute quia emptores was made for the advantage of the chief lords, the king may dispense with it and license his tenant to reserve any new service. No other lord can do this, by reason of the king's interest as lord paramount, but the king and the mesne lord or lords may together dispense with the statute and grant a license to the tenant paravail." (Tit. Tenure, B.) Assuming the law to be as in these authorities stated, and assuming further, as the respondents' counsel contends, that the grant of a manor and the right to hold manor courts, ex vi termini, implied an authority in the patentees to create manor tenants by means of grants reserving services to themselves, it still seems clear that the patents were no violation of the statute so often referred to. The patent so construed was itself a license to the patentee to make grants to be held of himself. On the making of such grants the patentees became the mesne lords, holding of the king, and the grantees of the patentees were the tenants paravail, holding, by license from the king as lord paramount, of their immediate lords the patentees. The statute would prevent any further subinfeudations by the freeholders holding under the patentees, unless, indeed, the king and the patentees should both consent.

That this was the understanding of the crown lawyers, who prepared the patents for lands in the colonies, is evident from the terms of several colonial grants. The charter of Pennsylvania empowered Penn, the patentee, to erect manors and to alien and grant parts of the lands to such purchasers as might wish to purchase, "their heirs and assigns, to be held of the saidWilliam Penn, his heirs and assigns, by such services, customs and rents as should seem fit to the said William Penn, c., and not immediately of the said King Charles, his heirs orsuccessors," with a non obstante of the statute quia emptoresterrarum. (Ingersoll v. Sargeant, 1 Whart., 348; Kirk v.Smith, 9 Wheat., 256.) It was stated on the argument, and not denied by the respondents' counsel, that the records of some ten or twelve patents exist in the office of the secretary of this state, issued respectively in the reigns of James II., William and Mary, Anne and George I., with powers respecting a manor and manor courts similar to those in the patents under consideration; and that the proprietary charters of several of the colonies authorize grants to be made to hold of the proprietaries. If the statute against subinfeudations was in force in the colonies, these proprietary grants were as much violations of its provisions as the grants in question in this action or any other grants from the king. The practice of making such grants for a long course of years is pretty strong evidence that the statute was never understood to apply to grants by the king.

But I think we are not without some evidence of the practical existence of the exception contended for in respect to lands in England. In Sir John Molyn's case (40 Eliz.) there had been an ancient manor of which the king was lord paramount, and there was a mesne lord and tenant; and it being forfeited to the crown for treason, it was again granted by King Edward third, to hold of him and other chief lords of the fee; and it was decided that this manor should be held of the mesne lord. (6 Rep., 6.) See also Bewley's Case to the same effect. (9 Rep., 130, a.)

The remarks of several writers cited in the opinion of the court below are readily reconcilable with the doctrine which has been stated, when read in connection with what precedes and follows the language referred to. It should be remembered that all the land in England was in tenure long before the statute of Edward first, and also that copyhold manors, to which the authorities relied on generally relate, do not arise out of feudal grants, but the tenants hold by the will of the lord according to the custom of the manor, time whereof, c., (Comyn's Dig., tit. Copyhold, A;) and that all copyholds are regularly parcel of a manor.

It is in respect to that species of manors, that it is said they cannot begin at this day. (Id., Q, 3.) So the note inPetersdorff's Abridgment says, "manors cannot now be created, not even by the king himself," but the reason is given which shows that the subject treated of is copyhold manors, thus: "length of time being of the very essence of a manor, and, as Sir EDWARD COKE expresses it, such things as receive their perfection by the continuance of time come not within the compass of a king's prerogative; therefore the king cannot grant freeholds to hold by copy, and cannot create a custom." (6Petersd., 309.) The general expressions of writers and judges to the effect that manors cannot have a commencement since the statute of Edward are quite correct, if we add the reason which is always understood, viz., that all the lands in England are already in tenure, and subinfeudations are forbidden by the statute. The remark was never applicable to the ungranted crown lands in the colonies, upon which the statute, I think, never had, any or only a qualified bearing. I have considered this question as though the statute was in force, and controlled the tenures in this colony in any case to which in England it might be applicable; and I do not think it material to deny the proposition, though it has been questioned by respectable authority. (Jackson v. Shutz, 18 John., 179;Depeyster v. Michael, 2 Seld., 467; Ingersoll v.Sargeant, 1 Wharton, 348.) Whether it was generally in force or not, it did not, in my opinion, apply to the ungranted crown lands; and in respect to these, the king, I think, was competent to authorize his immediate grantees to create tenants of a freehold manor by granting lands to be held of themselves. It will not be supposed that all the vexatious incidents of the feudal tenures could be engrafted upon these manor lands. If the feudal system ever prevailed in the American colonies, it had been shorn of its most severe features before either of the grants in question was made, by the statute 12 Charles II., ch. 24, (Anno 1664), which abolished the peculiar incident of the military tenures, and changed them, whether holden of the king or others, into free and common socage; and which was reënacted in this state soon after the revolution, with a retrospect to the time of the passage of the English statute. (1 Greenl., 359, § 2.)

But suppose all that we find in the patents about a manor and manor courts is inoperative on account of the provisions of the statute against subinfeudations, it by no means follows that the grant of the lands is void. It seems not to have been unusual, after the passage of the statute, for men still to alien their lands to be holden of themselves upon the same services on which they held them, and sometimes upon different services. The consequence was held to be that the alienee held of the chief lord by the old services, as the statute requires, and not that the feoffment was void on account of the tenure illegally attempted to be created. (Co. Lit., 502, pl. 7.) It is said that if a patent contains an allegation of untrue matter expressed to be suggested by the grantee, by means of which it can be affirmed that the king was deceived, the patent will be adjudged void; "but when the words are the words of the king, and it appears that he has only mistaken the law, then he shall not be said to be deceived to the avoidance of the grant," "and if the king is not deceived in his consideration, nor otherwise to his prejudice, but his intent was to pass the lands, only he is deceived in the law, nevertheless his grant shall be good." (Rex v. Kempe, 1 Ld. Raymond, 49.) InGledstanes v. The Earl of Sandwich (4 Man. Gr., 995), the principle which I have extracted from the case last cited is approved of and applied by the court of Common Pleas. It is argued in behalf of the respondents that the grant of a manor is inseparable from the conveyance of the lands. But it seems to me that they are easily separable. By the last patent the land is conveyed to the patentee, his heirs and assigns, to be holden in free and common socage. This is the ordinary language of a grant in fee simple by a lawful tenure. If what is said about a manor and manor courts implied a right in the patentee to convey to others to be holden of himself, and that was unlawful, there is no legal difficulty in declaring the patentee entitled to retain the lands, but holding that his alienee must hold of the crown and its successors, instead of holding of the patentee and his heirs. The case is similar in principle to Darling v. Rogers, decided in the court for the correction of errors. (22 Wend., 483.) An assignment of lands for the benefit of creditors authorized the trustee to mortgage as well as to sell, but the power to mortgage being a trust not authorized by the Revised Statutes, was void. The court, however, held that this did not avoid the conveyance, and they applied the maxim ut res magisvaleat quam pereat, that the instrument should rather be made available than suffered to fail, and held that the land passed by the assignment.

I am also of the opinion that the people are barred from maintaining this action by the statutes of limitations. The statutes which bar the right of the state contained in the revisions of 1801 and 1813 are, in most respects, if not altogether, mere revisions of the one passed in 1788, divested of its cumbrous phraseology. (2 Greenl., 93, § 1; Laws 1801,ch. 183; 1 R.L., 1813, 484.) I do not see, indeed, that there is any difference material to the case. The appellants' counsel supposed he had discovered in the language "unless the people of the state of New-York have or shall have been answered by force and virtue of any such right or title to the same, the rents, revenues, issues or profits thereof, or the rents, issues or profits of any manor or other hereditaments whereof the premisesin question shall be part or parcel within the said space of 40 years," a principle which would give the possessor of part of a manor, claiming title to the whole, the benefit of the statute in respect to a portion of it of which he had not possession. But a careful reading of it will show, that it is the people who are to be benefited by receiving the rents of part of a manor, as that circumstance will enable them to avoid the bar of the statute, as to the portions in respect to which they have been kept out of the rents. The question then is, whether the appellants can invoke the protection of the statute as to the lot in question, it not having been in actual occupation under their title prior to the year 1836 The tract patented was far too large, to make the possession of even a large part under a claim and color of title to the whole, a good constructive possession of the parts not occupied, under our decisions. (Jackson v. Woodruff, 1Cow., 286; Jackson v. Richards, 6 id., 617; Sharp v.Brandow, 15 Wend., 597. See also, 2 R.S., 294, §§ 10, 11.)

Nor do I think the right given by the leases to take wood for fuel and fencing from the ungranted lands, or the other acts of ownership which have been mentioned, are sufficient to make out a constructive possession of this lot. But there is another view of the case which I think renders the statute applicable. The crown of England conveyed these lands subject to the payment of a small rent in kind. This rent was claimed, and paid, down to 1806, when it was commuted, under an act of the legislature, by the payment of what was considered a fair equivalent. (1 Webs., 605, §§ 1, et seq.) This rent was claimed and paid as well for the unoccupied portions of the land as for the parts which were occupied. It was the conventional equivalent between the parties for the whole lands patented. It accrued annually, and if not regularly paid, it was ultimately liquidated upon the basis of an annual ground rent upon a grant in fee. There is no evidence, nor any reason to believe, that the liability to pay it was ever denied or questioned. Neither the crown nor the people were ever disseized of it. The relationship between the crown and the people on one side, and the patentees and their successors in the title on the other, continued in full activity until the quit rent was finally extinguished. This relationship was a perpetual admission and agreement that the parties holding under the patents were in the possesion and enjoyment of the subject for which the quit-rents were the equivalent, that is, of the actual fruits and profits of the soil. Its existence and constant recognition was entirely hostile to the idea that the grantors were in the perception of anything growing out of the land, except what had been secured to them by the contract contained in the grant. It concedes that the patentees and their successors were constantly enjoying all the rights which the patents professed to convey to them; and they were paying to the grantors and their successors the consideration for such enjoyment by them, which had been stipulated between the original parties to the grant. The exception which the people now set up is, that in judgment of law, they and the crown of England, to whose rights they have succeeded, have always been in the receipt of the rents and profits of this lot. This is made out by applying the principle, that unoccupied lands are, in law, considered as held in subordination to the true title. Assuming that the patents are void, it is argued that the government was always legally in possession of this unoccupied lot, and that as possession draws after it the fruits of the land, it was always in the receipt of the rents and profits. That this is the theory upon which the bar of the statute is answered when the defendant cannot make out an adverse possession, The People v. Arnold, (4 Comst., 508). The statutes, prior to the revision of 1830, do not say anything about adverse possession, and the reason why that was required of one setting up the statute, was that otherwise the land was deemed to be held in subordination to the true title. The owner was never, therefore, out of possession, but was constantly in the receipt of the rents and profits. It was upon this principle that it was held by this court, in the case just referred to, that a plea denying that the title accrued within forty years, and denying, also, the receipt of rents and profits by the people within that time, was a good bar. The proof in this case would establish such a plea. It is true the people have, in one sense, received the rents and profits. They have received the quit-rents; but the statute of 1788 requires that they should be received "by force and virtue of such right and title," that is, the right and title asserted in the action which is sought to be barred. The title by which the quit-rents were received by the government was the reservation in the patent which admitted the right to the general profits to be in the patentees. The title sought to be established by the action is not the title to the rent, which was never questioned, but the general and absolute title to the land in hostility to all rights under the patent. The distinction referred to is as old as the days of Lord COKE. In 3 Inst. (p. 188), there is an able commentary upon the 21. James I., ch. 2, the first nullum tempus act, which in the particulars under consideration, as in most others, is literally the same with our act of 1788. "In this branch of the act," he says, "these words (answered by force and virtue of any such right and title to the same, the rents, revenues, issues and profits thereof), were materially added; for otherwise if the king had been answered the rents, revenues, c., by reason or pretext of wardship, primer seisin, extent or the like, it might have made a doubt whether such an answering of the revenues, c., had been within the act: which doubt is cleared, that it must be by force and virtue of any such right or title whereby the king impeacheth the state ofthe subject." In other words, he must have been answered the rents and profits, that is, have received them by the right and title he asserts in the action; else it is not within the saving of the statute.

It is well settled that a grantee may hold adversely to his grantor. (Blight's Lessee v. Rochester, 7 Wheat., 535;Osterhout v. Shoemaker, 3 Hill, 518; The PropagationSociety v. Pawlet, 4 Pet., 506.)

I concede that an adverse possession is generally essential to enable a defendant to set up the statute in an action by the people, as well as where it is brought by an individual. (ThePeople v. Arnold, supra; The People v. Livingston, 8Barb., 253; The People v. Van Rensselaer, id., 189; LaFrombois v. Jackson, 8 Cow., 589.) The rule is absolutely necessary to protect the title of the state to its public lands. Possession being an act of great notoriety, it is required to exist before the statute can commence to run; for the reason that by it notice is conveyed that the right of the state is questioned. So in actions between individuals there must be a possession, and it must be hostile to the true owner, before the statute can operate, in order that the owner may be put on inquiry, that his rights are challenged. Now where the adverse holding is under a grant in fact from the party seeking to recover the land, though it may be inoperative in law, and there is a duty to be annually performed by the grantee and his assigns to the grantor, as a consideration of the grant, and this duty is recognized and performed for forty years, both parties being actually participant in its performance, though the grantee has not taken actual possession of the land, it seems to me preposterous to say that the grantor has been all the time, in judgment of law, in the possession of it and in the reception of the general rents and profits. On the contrary, it appears to me that the consent, recognition, payment and reception of the quit-rents is undeniable evidence that as between these parties the possession is in the grantee; certainly it is an admission that it is out of the grantors.

Under such circumstances the actual occupation is immaterial. If this view of the question is correct, the respondents were barred in 1800, when the first statute commenced to operate; and if not then, certainly in 1801, when the second statute was passed; for at either period the appellant could allege that the people's title had not accrued within forty years, and that within that time the people had not received the rents or profits of the land. Since the extinguishment of the quit-rents, the evidence of which was not objected to, and which was primafacie sufficient to prove the fact, the appellant has held in pursuance of the implied assent of the legislature, which has done no act impairing the effect of that transaction. Whether this commutation of the rents should be held to transfer a title, assuming that the patents were originally void, or not, it is clearly enough to disprove the allegation that the people have since been in the reception of the rents and profits of the land.

On each occasion of the repeal of a former statute of limitations to make way for the revised one, there has been a saving of rights accrued under such repealed statute. (Laws of 1801, ch. 189, § 1; 2 R.L. of 1813, 556; 2 R.S., 779, § 5.) Each of the statutes limiting actions by the state to recover lands, prior to the revision of 1830, contained a provision in effect conferring a title upon the party having or claiming manors or lands as against the state and against certain other patentees. I am of opinion, therefore, that whenever the parties holding under these patents were able, after 1800, to set up that they had been in possession of part of the granted lands, claiming the whole, for forty years, and during that time had been paying and the state had been receiving the quit-rents reserved by the patents for the whole land, such parties established a title as against the state by force of the statute of limitations, which could not be questioned except by the accruing of a new title by escheat or forfeiture, or a reconveyance to the people. And this defence the proprietors of the patent could make at any time after the act of 1788 took effect until 1806, when the quit-rents were extinguished, and I think at any time before this action was commenced. (SeeJackson v. Oltz, 8 Wend., 440.)

I have said that the evidence of the extinguishment of the quit-rents was sufficient. The statute (1 Webs., 607, § 6) declares that the treasurer's receipt or certificate of the payment of arrears of quit-rents, and of the commutation, countersigned by the comptroller, shall be a good discharge. The paper produced was the comptroller's certificate, stating the money to have been paid to the treasurer, and containing the matter required to be stated in the one which was to have been signed by the treasurer. The quit-rent reserved was fifty bushels of wheat; but the crown had afterwards granted the manor of Claverack out of the lands which were comprised in the patents to Killian Van Rensselaer, and the public officers concerned in the commutation apportioned the fifty bushels of wheat between the manors, charging the one now in controversy with forty bushels; and the arrears and commutation were reckoned on that basis; but there was no evidence of an actual agreement to that effect between the proprietors of the two manors. The bill of exceptions states that no objection was made to the form or sufficiency of the evidence, nor any question raised upon the trial or argument as to the payment of or commutation for the quit-rents on the whole manor; but it is stated that the cause was argued as if such commutation had been fully proved. After this it is too late to object in a court of review against the sufficiency of the evidence. It was the payment of the arrears and commutation which operated, and not the documentary evidence of it. The evidence, prima facie, established these facts, and if the documents were defective in form or any preliminaries were required to be shown, the presumption is that the defects would have been supplied if the objection had been duly taken. The principle is very familiar. In the opinion of the court below, it is said that if the commutation had been legally established, it would have been such a recognition of the title as would have precluded the state from disputing the defendant's title; but that operation is denied to it from a supposed defect in the evidence. It is clear that the court inadvertently overlooked that part of the bill of exceptions to which I have referred. I am inclined to agree with the court as to the effect of the transaction; but not having examined the point fully, I prefer to put the case on the other grounds.

I am of opinion also that the colonial act of May, 1691, which was approved by the crown, would protect the appellants against this action if there was nothing else in the case. (Brad. Laws, 7, 77; see also a transcript of the act in 8 Barb., 291.) It was passed subsequently to the patent of Governor Dongan. The answer to this defence is: First, that the act did not undertake to confirm individual grants, but only charters of corporations; and second, that it was only intended to prevent the government established at the revolution from repudiating the acts of the one which it superseded, and did not apply to defects which would have avoided the grants under the former government. (1.) The most prominent object, unquestionably, was to ratify corporate and municipal grants; but I think the language is large enough to embrace and that it was intended to embrace royal grants of land to individuals. The act is inartificially worded; manors were supposed to be corporations, and under that name it was intended to confirm them. "All the patents, charters, grants, made, given and granted, and well and truly executed under the seal of this province, constituted and authorized by their late and present majesties, unto the several and respective corporations, or bodies politic of the cities, towns and manors, and also to the several and respective freeholders within the province," are to be held valid against their majesties, their heirs and successors. (§ 1.) The second section ratifies and confirms the charters, patents and grants aforesaid, "made, given and granted as aforesaid, unto all and every the several and respective corporations or bodies politic of the cities, towns and manors;and also unto all and every the respective freeholders, theirheirs and assigns forever." The intent to embrace grants in fee to individuals, seems to me to be nearly as strong as language could make it. There are, extant, grants to the freeholders of towns as a sort of corporation (2 Wend., 110), but these could not have been intended, for it is to the several and respective freeholders within the province; and then it is not to their successors, as in these quasi corporate grants, but to theirheirs and assigns forever; and this language could not be applied to any subject with which I am acquainted, except the grants of land to individuals. The proviso to the second section, which declares that the act shall not bar any person or persons of their "former and just rights to any house, tract or parcel of land within this province," provided they make their claim in five years; and the saving of the rights of idiots, minors, persons non compos mentis, and beyond the seas, strongly confirms this construction. (2.) That the act was suggested by the change of dynasty effected by the revolution of 1688, is undoubted; and one object may have been to prohibit the new reigning house from revoking the grants of its predecessors; though there was no pretence that James was an usurper, and the revolution did not proceed upon that ground. But the principal thing to be provided against was the disturbing of chartered and vested rights under color of law. This is shown by the non obstante clause. The charters, patents, c., are to be deemed valid, "notwithstanding of the want of forms in the law, or the nonfeasance of anyright, privilege or custom, which ought to have been done heretofore by their constitutions and directions contained in their respective charters, patents and grants aforesaid." The reign of James II. was memorable for writs of quo warranto,scire facias and for judgments of ouster, and of repeal of letters patent, rendered by judges who complied too readily with the temper of the times and the wishes of the monarch. (2Macaulay's Hist., 311.) The statute in question was designed to secure the corporate and individual rights which the people of this colony derived from royal charters and grants, against all such arbitrary and corrupt proceedings, which, for anything which was known, might be resumed by the new or by some future government. It was a time for obtaining new guaranties for personal and proprietary rights, and the colonies were allowed to participate in this new order of things. The patent being confirmed by an act of the legislature, approved by the crown, was no longer liable to be set aside by the courts for want of form, or for non-user of privileges or breach of the conditions contained in it, or any other alleged illegality. If, therefore, this patent were void for the reasons which have been urged, it was ratified and confirmed by this act of the colonial legislature, and cannot now be impeached.

Upon the whole case, I do not think there was any ground for maintaining this action, and am of opinion that the judgment of the supreme court ought to be reversed.

The whole court concurred.

Judgment reversed.