The decision of this case turns upon the effect to be given to an ancient proceeding, now no longer in use, denominated a fine, which is set up by the defendant as an absolute bar to the plaintiffs' recovery of the lot in dispute.
James De Lancey, a name well known in the revolutionary history of the state, whose title the plaintiffs claim to hold, was attainted at any early period for adhering to the royal party. His estates, as a consequence, were disposed of by the commissioners of forfeitures, under the act of the state legislature in 1784. In 1795, John McGregor, who had then been naturalized only three years, became a purchaser of part of the forfeited estates, including the lot in controversy, then lying vacant, in the outer suburbs of the city. McGregor died in 1802. and the plaintiffs claim as his descendants.
Margaret Stuyvesant, it appears, more than forty years ago, but under what precise title the case does not distinctly disclose, paid the taxes on this property as her own; the same having been set off to her with other lots in the partition of her father's estate among his devisees in 1817. It would seem, therefore, that the defendant's claim of title, in its origin, dates back at least as far as that period, and that the lot in controversy was then treated by the devisees of Petrus Stuyvesant as part of the Stuyvesant estate.
Seven years after the partition, and after this assertion of ownership and assumption of its burdens, Miss Stuyvesant died and was succeeded by Winthrop as her devisee; who continued in the same practice till a short time before his death in 1832.
Five years, also, before that event, in order, it may be presumed to quiet any doubts arising from the De Lancey attainder, Winthrop, under the advice of his counsel, determined to levy a fine, and thereby to compel all persons who might consider themselves as having any rights under the attainder, to bring forward their claims within five years *Page 165 after public notice, as required by the then existing law; or be "forever barred." The proceedings for that purpose were accordingly instituted in 1827 and completed in 1828, and it is admitted in the case that the several instruments in writing produced on the trial constituted "complete documentary proof of the levying of said fine in due form." And yet, although thus solemnly summoned to assert their rights, and duly apprised of the limitation imposed upon them, the plaintiffs waited not only five, but more than fifteen years, before commencing their suit; leaving the Stuyvesant family, in the meanwhile, to bear the whole burden of the war of taxes and assessments to which the property was subjected — no ordinary struggle in a tax-ridden city like New-York — and then coming in at the close to carry off the fruits of victory.
The attempt certainly does not commend itself to our sympathy. If it be true that eternal vigilance is the price of liberty, a small portion of that commodity ought at least to be required as part of the price of property. Property, it has been well said, has its duties as well as its rights, and he that would enjoy the one should in some degree perform the other.
The plaintiffs rest their claim, notwithstanding the strong admission above quoted and another equally strong, upon a supposed defect in the levying of the fine. They insist that Winthrop inclosed the premises in order to levy the fine, and that the act on that ground did not constitute such a disseizin of the plaintiffs as to authorize the proceeding. The judge who tried the cause, on the contrary, held that the fact of the actual and exclusive inclosure of the premises together with the other facts proved, did establish such a freehold by disseizin in Winthrop as would sustain the fine.
It will thus be seen that the only subject of inquiry presented by the case is, what kind of inclosure did the law require to warrant a fine? *Page 166
To answer this question, we must first recall to mind the nature of that ancient mode of conveyancing.
A fine, says Lord COKE, is a feoffment (i.e., deed) upon record, called so because finem imponit litibus. It puts afinis or end to litigation. Its object is to quiet titles more speedily than by the ordinary limitation of twenty and twenty-five years. By means of this final proceeding, one of two contesting claimants of real estate could compel an assertion or abandonment of the pretensions of his adversary in one-fifth the usual period of delay. The practice of levying fines is as ancient in England, from which country we derived it, as any court of record, and dates back beyond the Conquest. It continued in this state as a mode of conveyancing from its earliest settlement by the English till the year 1830, when with other antiquities it was abolished by the legislature, and a simpler system substituted in its stead. (2 R.S., 343.) The repeal, however, having been subsequent to the date of the present fine can have no influence in determining the defendant's rights. As the law stood in 1828, a fine properly levied, after the lapse of five years, was an absolute bar "to conclude as well privies as strangers." (Laws of 1813, 358.) Hence it was that the most ample notice to all the world was required. This notice consisted of three parts:
First. An open, notorious taking of possession under claim of title adverse to all others.
Second. Public proclamation in open court at four successive terms.
Third. An advertisement in the state paper and one other journal for five successive weeks; also, a notice on the court house door and a record in the regular office for recording conveyances.
All these prerequisites, except in one particular, it is admitted, were in the present case duly and fully complied with; and even as to that one particular, it is also stated in the case, as another fact admitted, that Winthrop, at the *Page 167 time of levying the fine, had actual and exclusive possession of the premises. The only objection taken at the trial was, that the judge should have charged the jury that if they believed the premises had remained vacant until Winthrop was about to begin proceedings to levy the fine, and that he had then inclosed the same in order to levy the fine, they should find for the plaintiffs.
It is difficult to perceive, if notoriety is the great object, how a fence, put up not only as an inclosure but as a defiance and notice to all the world, can be less within the spirit of the rule than a fence put up as an inclosure merely. The fence was put up by Winthrop, as the case shows, to exclude all others. Violence was not necessary, because no one resisted, and no one was there to resist, the McGregors having, as it would seem, neglected the premises for a third of a century before. It is well settled that, in this country at least, there may be an ouster without force. (Clapp v. Bromagham, 9 Cow., 530;Hall v. Powell, 4 Serg. Rawle, 465; Small v. Proctor, 15 Mass., 498; Poignard v. Smith, 6 Pick., 172.) In the last case, it was said: "A disseizin may be effected without the actual knowledge of the owner of the land," and that "putting a fence around" is "constructive notice to all the world." In the English case of Davies v. Lowndes, decided in the Court of Exchequer Chamber (6 Mann Gr., 502), the twelve judges, on a writ of error, held that the court below was right in charging the jury that, to sustain a fine, all that was necessary was, that the party in possession should have entered upon the estate claiming the dominion of it and exercising the right to it as his own. And what is this but saying in other words that he must have entered, as Dr. Winthrop did, claiming "sole and exclusive possession?" And if a mere entry of one person, with claim of right to exclude all other persons, be sufficient to sustain a fine, how much more must an entry, followed by an actual, physical exclusion, in the form of a high fence surrounding the premises on all sides, and put up expressly as an open *Page 168 public assertion of right, and as a defiance to all other claimants?
According to the old doctrine of fines, no man could levy one, as against strangers, unless at the time "he had something" in the premises; quod partes finis nihil habuerunt was in such case an effectual plea. (2 Inst. 523.) He must have had, says CRUISE, "an estate of freehold in possession, either by right orby wrong, otherwise it might be in the power of any two strangers to deprive a third person of his estate by levying a fine of it." (5 Cr., 135; 4 Comyn, 310.) A rightful estate was not necessary. If it had been, the requirement would have involved the absurdity of a legal proceeding to quiet a title already perfect. The object of the law was to furnish a method of quieting titles without inquiring into their origin. Deeds might be lost, or, if not lost, the witnesses to their execution might be dead. Other testimonies, necessary, perhaps, to establish a rightful title, might become buried or obliterated in the lapse of time. Mistakes even might have been made, of either fact or law or both, and costly improvements erected under such mistakes. The party, as in the case of Lowndes, above cited, might have claimed the fee, under the idea that he was entitled to it, because there was, as he erroneously supposed, "no heir-at-law, not because he meant to oust him if there was." In such case, as the court said, the question was, and it was "simply a question of fact," not whether he had a good title as devisee, but "whether the devisee entered as being absolutely entitled to the estate as owner." It was the policy of the law, after five years undisturbed adverse possession, with a fine, and, after twenty-five years without, to deny to dormant parties the privilege, and to witnesses, jurors and judges, the annoyance of a legal strife. Fines were looked upon as matters of public concern. It was an established maxim that the interest of the commonwealth as well as the happiness of individuals, required that a finis, a fine, an end, should be put to lawsuits; ut sitfinis litium, *Page 169 finem imponere litibus. The quiet of titles and the consequent improvements on real estate were of more importance than the abstract legal right. Lawmakers and judges also saw that if titles, in all cases, without regard to time, were to be traced back to their original source, few, perhaps not even that of the De Lanceys, would escape the charge of "disseizin by wrong."
The statute of fines was a short statute of limitations; but although short it was not arbitrary. Unlike the present law, it was not content with a mere adverse possession. While it abbreviated the slumber it increased the solemnity and frequency of the warning. The case now before us, if the counsel learned in the law were right in their advice, illustrates these requirements. First, a special act of the legislature was procured in 1816. Next, a solemn partition in the following year took place by the commissioners designated in the act, succeeded immediately by a deed duly recorded in a public office, from the commissioners to the aunt of Dr. Winthrop, covering the precise lots now in controversy. Then the aunt, and her nephew after her, from year to year (others did not), paid the taxes and assessments imposed by the state and by the city. Next, the Doctor, as already stated, erected a fence around the entire premises — a high, substantial, board fence. A deed of feoffment, prepared no doubt after the most approved pattern, from Winthrop to Jones, and another back again from Jones to Winthrop, were duly executed. The parties, with a retinue of witnesses, then proceeded in solemn array to the disputed territory, where the deeds were successively read aloud on the land, and livery of seizin made by handing from and to each party, respectively, a twig, clod of earth and stone, "all picked up," as the witness says, "from the lot in question;" it being first ascertained by careful observation, that "no one was within the inclosure."
Having thus established, in due form of law, a seizin in fee, whether by right or by wrong is immaterial, the next *Page 170 step was to issue an original writ and get up a recognized fictitious suit, in which the one party in due form acknowledging the right of the other, and receiving from the court a license to agree, their "concord" was written down and read aloud and "proclaimed" in the hearing of the judges, and of a wondering, silent audience, from term to term during a whole year, and for five weeks in the public prints of the state. The other particulars it is needless to repeat. Taken together they constitute, it must be admitted, the most ample warning to all persons within the state and not under disability (no one else being bound), that their property, if they were in truth the strictly legal owners, had been openly seized by an adverse claimant, and that unless they reëntered and brought their suit within five years, the courts would not, as they could not, listen to their claim.
These particulars, it is presumed, or some of them, are "the other facts" alluded to by Judge Edwards, in his charge to the jury, as constituting with the actual and exclusive inclosure of the premises "such a freehold by disseizin in Winthrop, the defendant's lessor, as would sustain the fine," and authorize them, as they did, to find for the defendant; and which subsequently, on appeal, induced the general term to affirm his decision.
They are amply sufficient, as it seems to me, to warrant this court in affirming the decision of the Supreme Court.