DELANCEY v. M'KEEN, 7 F. Cas. 371

WASHINGTON, Circuit Justice. The single question is, whether a conveyance of the land, to which Delancey and wife were entitled, under the deed from William Allen to them, was made by Delancey and wife, to him, any time, prior to the attainder cf Andrew Allen? If such conveyance was made, then the title of the defendant is unquestionable; since no person will doubt the power of this state to attaint Andrew Allen, and to confiscate his property, and none have been suggested, as to the regularity of the proceedings against him, and of the sales which took place under them.

If, on the other hand, no such conveyance was made, then the confiscation is out of the question, and the plaintiff must recover, if his evidence is regular; because, having shown an undisputed title to the land sued for, no objection is pretended, except that the land was sold to those, under whom defendant claims, as part of the confiscated lands of Andrew Allen. But, if Andrew Allen had no title to the land, previous to his attainder, the confiscation of his property, because of his offences, could not affect an innocent person, and thus deprive Mr. and Mrs.

Delancey of their land; who, claiming paramount to the attainder, were not bound to interpose a claim, in order to save their rights. In support of the defendant’s pretensions, that the land in question was conveyed, by Delancey and wife, to Andrew Allen, no deed, no contract of any kind, no receipt for any part of the consideration money, have been produced; and no witness examined, to prove that he ever saw, or heard, that any such existed.

In this situation, without having any ground to stand upon, you are called upon to presume such a conveyance; that is, a deed executed by De-lancey and wife, made valid by the privy examination and consent of the plaintiff. Cases sometimes occur, where certain things necessary to the perfection of a deed, or even a deed itself, may be presumed. Where a feoffment has been made, or a copyhold disposed of; livery of seisin, and a surrender, after long and quiet possession, may be presumed.

So, too, if a man continues for a great length of time to enjoy land, and to treat it as his own, to the knowledge, and with the apparent approbation of the true owner, he knowing of his rights; I am inclined to think, that a deed or contract for a sale, might be presumed, if a proper foundation is first laid, on which to build the presumption. But, in all such cases, the acts of ownership, thus exercised, should not be of an equivocal nature, and should be with the full knowledge of the supposed grantor.

The mere possession and receiving of the profits, or offers to sell, or partial sales actually made, may as well be the acts of a tortious possessor, or of an agent, as of one claiming title under the real owner. Consider what would be the consequences of a doctrine more relaxed than that just laid down. A man living here, and owning lands at a distance, might, after some years, find them in possession of another; and the demand of restitution would be met by this novel, extravagant, and pernicious doctrine, that the claimant had sold and conveyed his right to him in possession.

No deed, contract, receipt for money, or testimony, that any, or either of those evidences of title ever existed, would be produced; but, he would rely upon a tortious possession, short of the limitation, which by law may give a right, as evidence of a conveyance. Of what consequence is it, that men should, in the transfer of real estates, require regular conveyances, executed with all due solemnities, or that they should so cautiously endeavour to preserve these muniments of title; if all may be prostrated by the destroying and pernicious doctrine, which we have heard maintained in this cause.

What, then, is the present case? Delancey and wife, being the acknowledged owners of the land in question, (provided the copy of the deed to them should be determined to be proper to be given in evidence.) lived in the province of New-York. In 1775, the equivocal acts of ownership, exercised over this land by Andrew Allen, took place. It does not appear, that they were ever communicated to, or known by Delancey, or even by his wife. In the autumn or winter of the same year, he left the United States, passed into Canada, from whence he went to England, and never again returned to this country.

The war commenced before his departure, and continued until 17S3; and, in 1788, as soon as it is probable he could obtain information of his affairs in this country, he brought an ejectment for the land in dispute, which failed. The acts of ownership by Andrew Alien, set up as a title for the defendant, piove nothing against the plaintiff; and, as to a long and quiet possession. what was it?

I should reject the whole period of the war in the computation of time, as applying to a case of presumption, where one of the parties was beyond sea; and, of course, there was not a quiet possession for more than five or six years. But, what has all this to do with the lessor of the plaintiff, who laboured under two disabilities, cover-ture, and absence beyond seas, until the year 1780, or 1781, when the joint estate vested in her by survivorship? It is said, that Mrs.

Delancey was present, when part of the purchase money was paid for a parcel of the land; ana, on this ground, it is contended, that her silence ought to postpone her to a fair, bona fide, purchaser. To this, there are three answers: First, that, being a feme covert, she could not bind herself by acts of commission, short of those directed by law to bind her, much less by acts of omission; second, that it does not appear, she knew on what account the money was paid; and, third, that, if all these points were against her. the principle contended for is inapplicable to matters of title, in a court of common law.

As to the point made, that Delancey and wife should have put in their claim, it is sufficient to answer; that the rights of persons claiming paramount to the attainder, are saved by the supplement to the act Whether the copy of William Penn’s deed, ought to have been read in evidence, is a question of considerable difficulty. I am satisfied, that, under the true construction of the act of 1715, the recording of a deed in the county in which the land lies, is not necessary to its validity; and, I am also dear, that the eighth

section only extends to mortgages, or deeds in nature thereof. The latter words prove this; for all the first mentioned deeds are directed to be recorded where the lands lie, as herein before directed for other deeds; which would be nonsense, if the word deeds, in the first part of the section, meant all deeds. But, whether a copy of a deed, from an office where it was recorded, different from that in which the lands lie, can be offered in evidence, is another question. There is no .adjudged case. The counsel concerned, are equally positive, on both sides, as to the practice and general understanding.

Three gentlemen of the bar, not concerned, say, they have always understood, that the deed must be proved, in the county in which the lands lie. Under these circumstances, I must recommend to the jury to find, subject to the opinion of the court, upon this question. The jury found for the plaintiff, subject to the opinion of the court, whether the exemplification of the above deed could be read in evidence. [NOTE. At the October term, 180G, it was decided that the deed was properly admitted in evidence—Case No. 3,750; and this decision was subsequently affirmed by the supreme court of the United States.—McKeen v.

Delancey, 5 Craneh (9 U. S.) 22.]