The People against Van Rensselaer and others, 9 N.Y. 291

Willard, J. This was not an action brought by the people, under 2 R. S., 578, § 12, or under § 433 of the Code of 1849. to vacate either the Dongan or the Combury patents mentioned in the pleadings. Whether such action could be maintained at this day, to vacate patents granted by the crown a century and a half ago. it is needless now to inquire. {Peoples v. Clarke, 10 Barb., 120.) . The action, on the contrary, is in the nature of an ejectment, though not called by that name since the adoption of the Code of Procedure.

It is believed, however, to be governed by the principles which the legislature has established in relation to that action. By the Revised Statutes, it is enacted that no person can recover in ejectment, unless he has at the time of commencing the action a valid subsisting interest in the premises claimed, and a right to recover the same, or to recover the possession thereof, or of some share, interest or portion thereof, to be proved and established on the trial. (2 R.

S., 303, §3.) If the premises for which the action is brought be actually occupied by any person, such actual occupant must be named defendant in the declaration ; if they be not so occupied, the action must be brought against some person exercising acts of ownership on the premises claimed, or claiming title thereto, or some interest therein, at the commencement of the suit. (lb., § 4.) These principles are alike applicable to the people, when prosecuting an action to recover the possession of land, and to private persons.

The former as well as the latter must, to entitle them to a recovery, establish a valid and subsisting title in themselves, and right to recover possession at the time the action was commenced, and show that the defendants were in possession or claimed title to the premises in dispute. With respect to malting out the proof of title in themselves, the people have an advantage over an individual. By right of sovereignty, they are deemed the owners of all the lands within the state, except such as have been granted to others, or have been lost by lapse of time.

Hence, it is enough for the people to prove, in the first instance, that the premises in dispute were vacant and unoccupied within a period necessary to constitute an adverse possession against them, and that the defendants subsequently entered or made claim to them. ( Wendell v. The People, 8 Wend., 183 ; The People v. Denison, 17 ib., 312 ; 1 R. S., 718, § 1; Constitution, § 11, art. 1.) At the time the counsel for the people rested the cause in this case, there was no sufficient evidence before the court to entitle the plaintiffs to recover, or to require the defendants to be put upon their defence.

First, there was no proof that the premises had been ever vacant and unoccupied, or that they were prima fade without the bounds of any patent; and secondly, there was no evidence that the defendants were in possession, or that they claimed title. Although the defendants’ possession was asserted in the complaint and admitted in the answer, yet it was denied in the reply. The people are bound by the allegations in their pleadings, like individuals. Notwithstanding the reply was a clear departure from the complaint, and as such obnoxious to a demurrer, it is still binding upon the plaintiffs.

The pleadings and the whole case show that at the time the plaintiffs rested, they sought, without any evidence of title in • themselves, to. recover judgment against parties who, their reply asserts, never possessed the lands described in the complaint, and were never entitled to that possession. The judge erred, therefore, in putting the defendants upon their defence. The first exception was consequently well taken.

But as the cause was subsequently tried upon its merits, and has been fully and ably argued by learned counsel in this court, it will probably be more satisfactory to all parties that We pass upon one or more of- the questions which will be decisive of the action, not. only in this but in any future litigation upon the same subject. If either the patent of 1685, called the Dongan patent, or that of 1704, called the Cornbury patent, was sufficient to divest the crown of the title to the land embraced within its boundary lines, the present action cannot be sustained.

The people at .the revolution succeeded to the rights of the crown, and had the same right to repudiate public grants which the latter possessed, and no more. (1 Greenl. L. N.:Y., 31, § 14.) In considering this case, we must not lose sight of the fact already stated, that this is not an action to revoke those patents or either of them, and that the learned judge has found as a fact, that the patents were not, nor was either of them, obtained by any fraud, concealment or false suggestions, or recitals on the part of the patentees, nor was the king deceived in malting said grants.

This finding was, in my judgment, based upon sufficient evidence and arguments, and as it has tiot been appealed from by the people, it must be assumed as the law of the case, in the further discussion of the questions before us. Although this is not a direct proceeding to vacate the patents, it cannot be denied that objections showing that they were absolutely void from the beginning are open to consideration. In a collateral action they cannot be assailed for any other cause. (Jackson v. Marsh, 6 Cow., 281; Jackson v. Lawton, 30 John., 23 ; Jackson v. Hart, 12 John., 77; Bagnell v.

Broderick, 13 Peters, 436; The People v. Mauran, 5 Denio, 389.) The learned judge by whom the cause was tried found, as matter of law, that the grant of lands in both patents was illegal and void, because manorial privileges and franchises were by both conferred upon the lord of the manor. And in his learned opinion, furnished to the court on the argument, he holds the Cornbury patent to be also void, because the Dongan patent had already conveyed all the title of the crown to the grantees therein named.

If the reason for this latter opinion be correct, the plaintiff had not the slightest ground for a recovery, and judgment should have been given for the defendants. If the crown parted with all its title to the land in 1685, and that title had not been revested by. escheat, or otherwise, it had indeed nothing upon which the patent of 1704 could operate, and nothing to which the people at the revolution could succeed; and consequently the latter had no cause of action.

The important question, therefore, is, was the Dongan patent of 1685 operative to convey the title of the premises therein described to the grantees therein mentioned. In considering this question, we must call to mind the issue which has .been framed by the pleadings. The first issue on this point tendered by the plaintiffs is, that no such patent was ever granted ; and the second is, that if granted, it was obtained by fraud or upon false suggestions, or concealment of some material fact on the part of the grantee or grantees, and was and is therefore void and of no force, effect or validity.

The first issue is equivalent to nul tiel record, and is effectually disposed of by the production of the patent itself, or a legally authenticated copy. The learned judge did not overrule the defence on the ground that no patent, as described in the answer, ever existed. He concedes its existence, but asserts its invalidity on the ground of matter apparent on its face. The second issue, though loosely framed, was disproved on the trial, and was expressly found for the defendants by the learned judge.

The judgment of the court below, that the Dongan patent was and is null and void, was therefore based upon a ground not set up in the pleadings, or put in issue by them. It is not denied by the court below that the operative words of grant in the patent were sufficient to convey all the title of the crown of Great Britain to the land described therein to the grantees therein named in fee simple. .Had it not been for the grant of manorial privileges and franchises in the same patent, I do not understand that the sufficiency of the instrument to convey land would have been questioned.

We are then brought to consider whether a patent of land, granted by the colonial government in 1685, containing the appropriate words for passing the title in fee to real estate, is rendered void and inoperative, because' in the same patent a power is conferred upon the grantees to hold a court leet and court baron, and to enjoy the other manorial privileges specified in the Dongan patent. The court below held it to be void for that reason alone.

There are two answers which may be given to this question : First, it was within the competency of the colonial government in 1685 to grant a manor, with the usual incidents and franchises of an English barony; and second, if it had no such right, and nevertheless made such grant, in a patent which also, in a distinct part thereof, contained the usual grant of lands to the patentee, his heirs and assigns, the manorial grant alone will be void, and the grant of lands operative and effectual.

I do not propose to discuss the first question, although I believe the original grant to have been valid in this respect, and the acts of recognition by the colonial legislature to be of sucli a character as conclusively to estop the government from impeaching its validity in a collateral action. I shall leave this point, however, to be examined by Judge Denio.

Whether the manorial privileges were rightfully granted or legally enjoyed during the continuance' of the colony, is not indispensable to the proper determination of this action, unless, indeed, the inserting of those privileges in a grant of lands invalidates the grant. The latter, therefore, is the only point to be considered by me.

The two rules of most general application in construing a written instrument are i First, that it shall, if possible, be so interpreted that it shall be effectual, ut res magis valeat. quam pereat; and second, that such a meaning shall be given to it as may carry out and effectuate, to the fullest extent, the intention of the parties. (Broom's Maxims, 273, 414.) The principles which govern the construction of private grants are, with some qualifications, applicable to grants from the government.

If the king’s charter,' says Ooke, “.will bear a double construction, one which will carry the grant into effect, the other which will make it inoperative, the former is to be adopted.” {Rutter v. Chapman, 8 Mees. & Wels., 102, in the Exchequer Chamber, per Tendal, Ch. J.) In accordance with the same principle, where divers persons join in a deed, and some are able to make 'such deed and some are not able, this shall be said to be his deed alone that is able {Shep.

Touch., 81), and if a deed be made to one that is incapable' and another that is capable, it shall enure only to the latter, {lb., 82.) The same doctrine is applicable to the subject matter of a grant- If with respect to a part of the thing granted, the grantor have a right to convey, and with respect to the residue he has no right, the deed will be available as to the part to which the grantor had title, and void as to the residue. This rule prevails in relation to grants from the government. In

I) Danforth v. Weur (9° Wheat., 673), both parties claimed title to the land in controversy under grants from different states. The grant to the plaintiff was of land, to a part of which the Indian title had not been extinguished, and which, according to law, was not the subject of grant; yet this grant was held good as to the land where the Indian title had been extinguished, and void as to the rest. The same principle was again asserted by the same court in Patterson v. Jenks (2 Pet., 236). A similar doctrine was advanced by the English Common Pleas in Doe v.

Pitcher (6 Taunt., 359), where' a deed of land limited to a use within the statute (9 Geo. II., ch. 36), and therefore null, was held not to avoid other limitations in the same deed, not" within the act. The case ■ of ■ The People v. Mauran (5 Denio, 389) is to the same effect. By the act of 1813 (1 R. L., 202, § 5), all letters patent are required to contain an exception and reservation to the people of this state, of all gold and silver mines. A patent was granted in 1816, conveying the premises therein described to the grantee, without the exception required by the statute.

An ejectment was brought by the people to recover the land, and among other reasons in favor, of their recovery it was urged that the patent was void for not containing the required exception and reservation. But the court held that the patent was good for the land and void for the mines. The rule which makes a deed or contract illegal in part, void in toto, applies only to cases where the two parts are so inseparably - connected. that one cannot exist without the other. The acts of agents who do more than they are authorized to do, rest' upon the same principle.

They are good for that which is warranted, and void-for the rest.. (Co. Lit., 258; Story on Agency, && 166, 167; 5 Denio, 397.) In like manner, if a feoffment be made on • condition to do a thing which is malum- in se, as to kill or rob J. S., the estate of the feoffee is absolute, and a bond made on such condition is void. (Bac. Abr., tit. Condition, K.) In the present case, if it be admitted that a manor could not exist without a grant of land, it cannot be denied that a grant of land without manorial privileges is good.

Upon every legitimate principle of construction, the estate granted by the patent was good and vested in the grantee, even if the residue of the grant was void. ' It follows, from the foregoing reasoning, that the title to the premises embraced within the manor lines passed by the patent of 1685 to the grantees therein named, and is not shown to have ever reverted to the colony or to the people. The latter, therefore, had no right to maintain this action.

It is not necessary in the present action to establish the title of the present owners of this manor, nor would any further remarks be deemed necessary but to remove the doubts which the decision of the court below may be presumed to have cast upon the title of the Van Rensselaers to the unoccupied portions of the territory. The Dongan patent was granted to Killian the son of Johannes Van Rensselaer, and Killian the son of Jeremías Van Rensselaer, their heirs and assigns, in trust to and for the use and behoof of the right heirs and assigns of Killian Van Rensselaer, the grandfather, &c.

The recitals in the patent of 1704, show that at the time of the latter patent, Killian Van Rensselaer, eldest son of Jeremías, had become solely seized and possessed of the whole colony of Rensselaerwyck, with the hereditaments and appurtenances. The latter patent, reciting the former, and the various facts which showed the title vested in Killian, confirmed the same to him, and his heirs and assigns forever. It must be admitted that these recitals and this act of the government were not binding upon other parties.

The time which had elapsed since the patent of 1685, was long enough to have satisfied all the trusts contained in that patent, and they might well be presumed to have been satisfied, and the whole estate vested in Killian, the patentee in the last patent. Its effect was to vest in the patentee every latent interest of the crown, if any there remained. In an action to revoke a patent granted by the crown, the recital of facts not within the knowledge of the government are the suggestions of the patentee, and must, if material, be proved by him.

The king is not estopped by a recital in his patent, but the law will rather adjudge Mm to be deceived. (1 Co., 43; 5 ib., 55 ; 6 ib., 55; 10 ib., 112.) But in the present case the pleadings do not put the recitals in issue, and the learned judge has found as a fact that neither of the patents were obtained by any fraud, concealment or false suggestions or recitals on the part of the patentee; and the action moreover is not brought to revoke the patent, but to recover the land upon the ground that no patent ever existed, or if it did, that it was void.

A valid commencement of an estate is shown in the patentee under the patent of 1704, which, even if defective, ripened into a right more than a century ago, as against all the world. Either patent is sufficient to bar all right of the people to maintain the present action.

It 'remains to consider, though not very essential to the defence, some acts of recognition on the part of the government, of the existence and continued ownership of the patent by those in whom the paper title has been traced, and the acts of ownership which have been exercised without interruption by the ancestors of the present owners from the earliest day. These acts on the part of 'the proprietors consist of granting leases, collecting rents and paying taxes.

The acts of recognition by the colonial assembly, by the constitution of 1777, and by the legislature of the state since the revolution, are numerous, and have already been referred to. It has already been stated that a quit-rent of fifty bushels of wheat annually was reserved in both patents.

By the act of April 8, 1801 (1K. & R., 605, 6, § 4), it was enacted that any person seized of any lands, &o., as contained in any original grant of the same, charged with an annual quit-rent, might commute for the same by paying to the treasurer of this state, for the use of the state, 81-50 for every twelve and a half cents of such annual rent. The

section then points out the receipt which is to be given, describing the lands and tenements on which the said- quit-rent was chargeable, the date of the grant reserving it, the sum paid in lieu of it, the officers by whom it is to be countersigned, and the book in which it is to be entered, and enacts “that the said receipt or certificate being so countersigned and entered, or the entiy thereof, shall be a good discharge of such quit-rent forever.” The defendants’ counsel prove that on the 4th of November, 1752, all the quit-rents on the patent were paid from March 25, 1737, to March 25, 1752, being seven hundred and fifty bushels of wheat.

It was also shown by the comptroller’s certificate, that on the 26th of December, 1806, Stephen Van Rensselaer paid up all the arrearages of quit-rent on the upper manor, and commuted for the said quit-rent under the act of 1801. Two other receipts for quit-rent were given in evidence, one for fifty bushels of wheat, dated in March, 1687-8, and the other for three years’ quit-rent, and dated December 1, 1705. The form of the commutation receipt was not according to the statute, nor was the apportionment proved to have been made oetween the upper and lower patents.

The payment and commutation were made upon the upper patents, in which the premises in question are situated. The learned judge, in his consideration of the case, laid out of view the effect of these payments and commutations on account of the defect in the evidence by which they were sought to be established.

But it appears by the bill of exceptions that the evidence was not objected to, and further, that “no objection was made to the form or sufficiency of the evidence, nor any question raised upon the trial or argument, on the facts as to the payment of and commutation for the quit-rents on the whole manor, but the cause was argued as if such commutation had been fully proved.” Under these circumstances, the court below should have treated the cause as if the evidence had been conformable to the statute; and it should be so viewed by this court.

The objection that the rent was payable in wheat, and that the statute is silent as to the commutation of wheat rents, is without force. The statute is general, and applies as well to rents payable in wheat as rents payable in cash. It is well settled in this state that rents payable in wheat, stand on the same footing as rents payable in cash. (2 Barb., 643; 5 Denio, 121; 2 Comst., 135.) As the payment of rent by a tenant is a conclusive acknowledgment of the paramount title of the landlord, so the receipt of rent by the landlord is an unequivocal recognition of the estate of the tenant.

The effect of the commutation of the quit-rent is the same upon the rights of the parties as if the people had made a new grant of the patent, without' reservation. Such grant enures to the tenant by way of extinguishment of the rent. {Lit., & 543.) A grant of the rent to the tenant would have the same effect. {Lit., § 544.) The receipt of the sum which the statute prescribes as a commutation of the rent, works not only under the act as a discharge of the rent, but as a confirmation of the estate.

The reversion no longer remains in the people, and all the-remedies of distress, ■ entry and sale of the premises, provided by the statute in case of non-payment, are gone forever.

The plaintiffs cannot, after having received rent on the patent for above a century, and at last the commutation money under the statute, maintain an ejectment for the same land, founded upon a supposed defect in the original grant. ■ As the cause must go back for another trial, and will again be tried if the attorney-general shall so elect, it may be well to pass upon the question of the statute of limitations, interposed in the answer.

The people of this state have enacted that.they will not sue or implead any person for or in respect to any lands, by reason of any right or title of the people to the same, which shall not have accrued within the space of forty years before suit for the same be commenced, unless the people, or those under whom they claim, shall have received the rents and profits thereof within the space of forty years. (1 R. L., 184, § 1.) In the case of The People v.

Arnold (4 Comst., 508, 513), this court held that to constitute a bar to the right of entry of the people, there must be such a holding for forty years as would constitute a good adverse possession, if the land had been owned by an individual instead of the state. The court below held the statute applicable only to those parts of the manor which had been actually held under lease from the proprietors more than forty years prior to the commencement of the suit, and not available to the defendants with respect to this particular lot, because it had never been so occupied.

I differ from the court below in this respect, and without adverting to the earlier statutes, am of opinion that the claim of the people is barred by the act of 1801. (1 R. L., 184.) Although for the purpose of this question it must be assumed that both patents were void, still the defendants’ title is founded upon a written instrument purporting to be a grant from the colonial government embracing within its limits the premises in dispute.

The court below overlooked the fact that the defendants and those under whom they claim paid both rent and taxes upon the whole patent, and therefore upon the lot in question; employed agents to protect the latter from trespassers, and finally actually leased it to a tenant a few years before the action was commenced. Moreover, they leased out all the land surrounding it to actual occupants. Here was a sufficient possession of the lot, though no one resided upon it, to bring it within the rule required by the statute of limitations. (2 R.

S., 294, § 10.) The statute was designed merely to enact what had been decided by the courts. (6 Cow., 679, 623.) It was merely declaratory. If the defendants had such a possession as to enable them to be sued in ejectment, they had such possession as would, if continued long enough, ripen into a right. If they had such possession as to be liable to taxation, they ought not, in common fairness, to be treated as having no possession by the. government which both imposed and collected the taxes.

The remarks of the learned judge in the court below with reference to the improvidence of the grant of so large a territory to a single individual, would have been appropriate, if addressed to the colonial government by whom it was made. But the question for the courts is, not whether the mode of granting patents of large tracts of land to single individuals was best adapted for the good of the colony, but whether the grant in question was in fact made.

The one is a question of public policy, which the experience of modern times has wisely settled adversely to the practice which prevailed in the infancy of the colony. The other is a mere question of fact, which must be decided by the record of the grant, or acts of recognition by which its existence can be inferred. Many of the acts on the part of the state, and of the late colony of New-York, have already been noticed, and there are numerous others of the like character, tending strongly to confirm the title under which the defendants claim. But I have not deemed it expedient to dwell longer upon this subject.

The conclusion to which I have come, that the patents were both valid, and were effectual to divest the colonial government of all title to the land in dispute, is enough to dispose of the case upon its merits. . I think, too, a regular paper title has been deduced from the original patentee to the present owners, and that their title is good against all the world. The judgments of the supreme court and circuit court should both be reversed, and a new trial ordered with costs to abide the event. Demo, J. The material facts in this case áre 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 Jeremías 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 Qúeen, 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 Kew-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 empores terrarum, passed in the eighteenth year of Edward first (Anno 1290).

This statute, after reciting that thefeudal 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 quilibet renunciare potest beneficium juris pro se introchictum.” 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 ter ■ rarum ; 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 statute quia 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 quia emptores, so that as to lands already granted the consent of the king and all the lords mediate and immediate dispenses with the statutes; for u alienatio licet prohibeatur, consensu tamen omnium in quorum favorem prohibita est, potest fieri.” (Co. Lit., 99, a; see Hargrave's note, No. 108, where it is shown that the dispensation referred to is not the exercise of the unconstitutional prerogative of dispensing with statutes which was 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 in frankalmoigne, “ 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 par avail 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 Mm by certain services; because that the statute of quia 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 patenteesbecame 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 grant's.

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 he held of the said William 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 or successors, ” with a non obstante of the statute quia emptores terrarum. (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 ih 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 oí 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 Bewlefs 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 in Petersdorff’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.” (6 Petersd., 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 reenacted 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 difi-. ferent 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 he 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.) In Gledstanes v. The Karl 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 magis va'leat qnam pereat, that the instrument should rather he 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 seé, 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 Few-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 premises in question shall he , 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, 1 Cow., 286; Jackson v. Richards, 6 id., 617; Sharp v. Brandow, 15 Wend., 597. See also, 2 R. S., 294, §§ 10, 11.) For 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 nullwm 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 reve- , núes, &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 of the 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 Propagation Society 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. ( The People v. Arnold, supra; The People v. Livingston, 8 Barb., 253; The People v. Van Rensselaer, id., 189; La Frombois 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 'primó, facie sufficient to prove the fact',..the appellant has held in pursuance' of the implied assent o'f the legislature, which has doné no act impairing the éffedt of that transaction.

Whether this commutation of the rents should be held t'o 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 staté 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. (See Jackson 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 operationts 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, their heirs 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 their heirs 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 j ust 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 any right, privilege or custom, which ought to have been done heretofore by their constitutions and direc tions 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. (2 Macaulay'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.