Rogers v. Hillhouse

A quit-claim deed, without valuable consideration expressed, is valid between the parties. , Where the judge instructed the jury, that “ a quit-claim deed, without valuable consideration expressed, might be good between the partiesit was held, that this was equivalent to a positive direction, in favour of the validity of such deed ; at any rate, that the want of a more explicit direction, was no ground for á new trial, in a case in which the title of the opposite party was established by fifteen years adverse possession. Where a party claiming title to land, by adverse possession, offered in evidence an unacknowledged deed, from one to another of the persons under whom he claimed, and a judgment in favour of one of those persons against a third person, accompanied with proof of possession, and acts of ownership; it was held, that although such party could not establish a title by force of the unacknowledged deed, or of the judgment between other parties, yet these documents were admissible to evince the character of the possession. When the time limited for making entry upon land, has once begun its operation, it will continue to run, notwithstanding any subsequent disability.

THIS was an action of trespass quare clausum fregit, brought in 1818, and tried in New-Lonaon county, January term, 1820, before Brainard, J. The plaintiff claimed title to the land described in the declaration, by deed from Elisha Lathrop and others, to Simon Lathrop, dated May 10th, 1760; and through him, at his decease, on the 25th oí January, 1774, by descent, to his daughter Martha Cogswell, then, and until her decease, on the 6th of March, 1795, a feme covert; from her, by devise, made with her husband’s consent, to certain of her children and grand-children ; from them, by deed, dated August 31, 1797, to Ebenezer Devotion; who conveyed to the plaintiff, by a deed of bargain and sale, with warranties, dated April 10, 1807, all the land within the boundaries specified in the declaration, excepting and reserving to himself about ten acres thereof, and by a quit-claim deed, dated the same day, the part so excepted and reserved. The defendant contended, that the acts charged were done upon the quit-claimed tract; and that this was the freehold of those, under whom he claimed, viz. Elisha Lathrop, and those under whom Elisha Lathrop claimed, who had been in possession of the land, from the year 1766, to the present time, holding it as their own. To prove that such possession was adverse, he offered in evidence a deed from Elisha Lathrop, to one Bela Turner, dated December 29, 1781, which had never been acknowledged ; also, a judgment in favour of Ephraim Miner, to whom Turner had, in 1784, conveyed, and under whom the defendant claimed, against Joseph Hammond, rendered in February, 1801; accompanied with proof, that Miner, by virtue of and under that deed and judgment, went into possession of, and exercised acts of ownership on, the land. To the admission of such deed and judgment, with the proof accompanying them, the plaintiff objected ; but the judge over-ruled the objection, and admitted them. The plaintiff also claimed, that Mrs. Cogswell, being a feme covert at the time her right of entry first descended, and so continuing until her decease, her heirs might enter within the period limited by statute, for making entry upon lands after the removal of the disability, notwithstanding the adverse possession might have commenced during the life of her ancestor, Simon Lathrop, and continued for more than fifteen years thereafter. But the judge charged the jury, that the statute, having begun to run in the life of Simon Lathrop, would continue to run against her right of entry, notwithstanding her coverture, at the time her right first descended. The defendant contended, that there being no other consideration expressed in the quit-claim deed, than the words “ for divers good causes and considerations,” it passed no interest to the plaintiff. On the other hand, the plaintiff claimed, that a quit-claim deed, without a consideration expressed, would pass the interest in the land to the grantee, and, as between the parties to it, would be a valid instrument. The judge charged the jury, in general terms, that a quit-claim deed might be good without consideration ; but did not state to them, whether in the present case, the quit-claim deed was, as between the parties, effectual to pass the interest in the land. The defendant having obtained a verdict, the plaintiff moved for a new trial, on the ground that the several decisions of the judge above stated, were erroneous. contended, 1. That a quit-claim deed, without consideration, is valid; an)j so the jury should have been explicitly instructed. Such deed > valid, because it is a common law conveyance ; and a consideration is not necessary, to any instrument of conveyance at common law. 4 Cruise’s Dig. 24. 1 Cruise’s Dig. 409. From the charge, the jury could understand nothing more, than that, under certain circumstances, a quit-claim deed, without consideration, might, be good ; but from the judge’s avoiding the application of his remark to the deed in question, they would, of course, infer, that this deed was not valid. 2. That a paper, purporting to be a deed of land, without acknowledgment, is wholly inoperative, and inadmissible in evidence. 1 Slat. Conn. tit. 163. s. 6. 7. Doe v. Roe, 1 Johns. Ca. 402. Stanton v. Button, 2 Conn. Rep. 527. The taking of possession, under a void instrument, cannot make it evidence in courts of law. 3. That the record of the judgment, recovered by Miner against Hammond, ought not to have been received as evidence in this suit; the parties to that judgment being strangers here. Phill. Ev. 228. Neither the claiming to exercise acts of ownership, nor even an actual entry under the judgment, can alter the legal character of the judgment, or vary the rights of those, who are neither parties nor privies. 4. That during the whole period, from the death of Simon Lathrop, when the estate descended to Mrs. Cogswell, until five years after her death, the plaintiff’s title was protected from the defendant’s claim, by adverse possession. The statute contemplates several rights of entry, as accruing at different times. It provides, that any person may enter, within fifteen years after the first accruing of his right; allowing him full fifteen years for making entry, and imputing no laches to him during that period. But if he die before its termination, % right of entry descends. If the heir is, .at this time, a feme covert, her right is protected, by the proviso, during the continuance of her disability, and five years afterwards. This construction militates against no rule of law, nor judicial decision. The cases of Stowel v. Lord Zouch, 1 Plowd. 355. and Doe d. Duroure v. Jones, 4 Term Rep. 300. were under the s^tute of Fines, and not under that of 21 Jac. 1. from which ours is derived. contended, 1. That the charge, in relation to the quit-claim deed, was unexceptionable. It was made with reference to the facts of the case. The plaintiff introduced this deed to establish his title ; and the judge suffered it to go to the jury, for the purpose for which it was offered. His observations upon it, in his charge to the jury, must have impressed their minds with the idea, that the want of consideration, was, of itself, no objection to the deed. He was not requested to instruct them, that a quit-claim deed without consideration, is, under all circumstances, valid; and if such request had been made, the charge requested could not have been given ; for if the parties -had been disseised, such a deed would have been void. 2. That the unacknowledged deed from Lathrop to Turner, and the judgment recovered by Miner against Hammond, were properly received in evidence, not to make out a title under the deed or the judgment, but to evince the character of the possession. For this purpose alone were they offered. Any other facts, or even the declarations of Turner and Miner, made when they respectively went into, or had, possession, which explained the intention of the parties, would be equally admissible. Whether a possession is adverse or not, depends upon the intention with which it is taken and held ; and this intention is to be discovered, by a view of all the circumstances of the transaction. If a man takes a deed of a piece of land, when he goes into possession of it; or if, when his possession is disturbed, he sues the wrong-doer ; it makes very little difference, so far as his intention is concerned, whether that deed be defective or not, or whether that suit be against a stranger or a party. 3. That the right or title in question, accrued on the dis-seisin in 1766, when the person disseised was under no disability. By the lapse of fifteen years, without entry or assertion of right, that person “ and his heirs” were barred, within the body of the statute. Mrs. Cogswell not being the person to whom the right or title first accrued, is not within the proviso. It has been uniformly held, that if the statute has once begun to run against the person to whom the right or title first accrued, a subsequent disability in his heir, will not arrest its progress. Stowell v. Lord Zouch, 1 Plowd. 356. Doe d. Du-roure v. Jones, 4 Tenn Rep. 300. Cotterell v. Dutton, 4 Taun. ^ 830. Bunce v. Wolcott, 2 Conn. Rep. 27. Griswold v. Butler & ux. 3 Conn. Rep. 227.