The People of the State of New-York v. Caleb Brown and others, 1 Cole. & Cai. Cas. 284

Per Curiam, delivered by Lewis, C. J. This is an information of intrusion, filed by the late Attorney-General, and now prosecuted by his successor in office. It comes before the court on a case, which sets forth, that a royal grant, by letters patent, issued in 1770, to Leonard Lispemrd and others, for 9,200 acres of land,' now in the county of Otsego, but then in the county of Albany, on the annual quit-rent of 2s. 6d. sterling per hundred acres. The grant contains sundry conditions, on the non-performance of any of which it is declared to be void and of none effect.

Among the number, are the following: that the grant shall be registered and entered on record, within six months from the date, in the secretary’s ofice ; and that a docket thereof, shall be also entered in the auditor’s ofice. It is admitted, that though the letters patent were duly recorded, no docket was found in the auditor’s oEce ; but that a note of them is found, entered in a memorandum book of patents, kept in the oEce of the comptroller of the state, bearing date in 1797, and that the quit rents, on parts of the tract, have been paid to the existing government.

The defendant claims title under the said patent, and the question for the court is, Guilty or not Guilty. To decide this question, it is necessary to inquire whether an information of intrusion lies under the circumstances of this case. To sustain a prosecution of this description it is necessaiy that the crown formerly, and the government now, should be in the actual seisin or possession of the subject intruded on.

I shall lay down a few general principles or maxims, which I conceive incontrovertible, and which may be gathered from the twTo principal cases, relied on, that of Sir Moyle Finch, and of Sir George Reynel, as well as from the decision of the court for the correction of errors, in the case of the devisees of Van Schaick v. King. 1st. That the state can acquire seisin or possession, of lands, for breach of condition, by matter of record only. 2d. That generally where entry is necessary in the case of a' common person, an office is necessary to entitle the state, 3d.

Where entry and action are necessary to a common person, an office and sci.fa. are necessary to the state. It is true, there are cases where the crown may be in possession by seizure without office, but they are not cases of this description, they are confined to the forfeitures of the temporality of alien ecclesiastics, where the certainty of the matter appears in the exchequer. There is an important and striking distinction between the case of Sir Moyle Finch, and the one now before us.

The forfeiture .¡here was of a term; here, if any, of fee ; now a fee shall never be void, absolutely for condition broken, but voidable by entry only, though it is otherwise of a term. But even in Finch's case, as reported by Leonard, w. o states it much more at large than Croke, both- Fopham and Crake who argued for the plaintiff, and Mamvood, Chief-Baron, in giving judgment for the plaintiff, admitted, that, although the lease was void without office, it was void in interest and property only, but not In possession.

And that though the Queen without office, and a common person without entry, might grant it over, yet the former could not without office prosecute for an intrusion, nor the latter without entry for a trespass. These opinions, I think, decide the question ?, and that judgment must be accordingly for the defendants.