Carver v. Jackson
29 U.S. 1 (1830)

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U.S. Supreme Court

Carver v. Jackson, 29 U.S. 4 Pet. 1 1 (1830)

Carver v. Jackson

29 U.S. (4 Pet.) 1

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE SOUTHERN DISTRICT OF NEW YORK

Syllabus

The practice of bringing the whole of the charge of the court delivered to the jury in the court below for review before this Court is unauthorized and extremely inconvenient both to the inferior and to the appellate court. With the charge of the court to the jury upon mere matters of fact and with its commentaries upon the weight of evidence this Court has nothing to do.

Observations of that nature are understood to be addressed to the jury merely for their consideration as the ultimate judges of the matters of fact, and are entitled to no more weight or importance than the jury in the exercise of their own judgment choose to give them. They neither are nor are understood to be binding on them as the true and conclusive exposition of the evidence.

If, in summing up the evidence to the jury, the court should

misstate the law, that would justly furnish a ground for an exception. But the exception should be strictly confined to that misstatement, and by being made known at the moment, would often enable the court to correct an erroneous expression, so as to explain or qualify it in such manner as to make it wholly unexceptionable or perfectly distinct.

The plaintiff claimed title under a marriage settlement purporting to be executed

Page 29 U. S. 2

13 January, 1758, by an indenture of release between Mary Philipse, of the first part, Roger Morris, of the second part, and Joanna Philipse and Beverly Robinson of the third part whereby, in consideration of a marriage intended to be solemnized between Roger Morris and Mary Philipse, &c., R.M. and M.P. granted, &c., to J.P. and B.R.

"in their actual possession now being, by virtue of a bargain and sale to them thereof made for one whole year, by indenture bearing date the day next before the date of these presents and by force of the statute for transferring uses into possessions, and to their heirs, all those,"

&c., upon certain trusts therein mentioned. This indenture, signed and sealed by the parties and attested by the subscribing witnesses to the sealing and delivery thereof, with a certificate of William Livingston, one of the witnesses, and the execution thereof before a judge of the supreme court of the State of New York dated 5 April, 1787, and of the recording thereof in the secretary's office of New York, was offered in evidence by the plaintiff, and objected to, on the ground that the certificate of the execution was not legal and competent evidence and did not entitle the plaintiff to read the deed without proof of its execution. A witness was sworn who proved the handwriting of William Livingston and of the other subscribing witness, both of

whom were dead. The certificate of the judge of the supreme court of New York stated that William Livingston had sworn before him, that he saw the parties to the deed "sign and seal the indenture, and deliver it as their and each of their voluntary acts and deeds," &c.

By the Court:

"According to the laws of New York, there was sufficient prima facie evidence of the due execution of the indenture, not merely of the signing and sealing, but of the delivery, to justify the court in admitting the deed to be read to the jury, and that in the absence of all controlling evidence, the jury would have been bound to find that the deed was duly executed."

The plaintiff in the ejectment derived title under the deed of marriage settlement of 15 January, 1758, executed by Mary Philipse, who afterwards intermarried with Roger Morris, and by Roger Morris and certain trustees named in the same. The premises, before the execution of the deed of marriage settlement, were the property of Mary Philipse in fee simple. The defendant claimed title to the same premises under a sale made thereof as the property of Roger Morris and wife by certain commissioners acting under the authority of an act of the Legislature of New York passed 22 October, 1779, by which the premises were directed to be sold as the property of Roger Morris and wife, as forfeited, Roger Morris and wife having been declared to be convicted and attainted of adhering to the enemies of the United States. Not only is the recital of the lease in the deed of marriage settlement evidence between the original parties to the same of the existence of the lease, but between the parties to this case the recital is conclusive evidence of the same, and superseded the necessity of introducing any other evidence to establish it.

The recital of the lease in the deed of release in the present case was conclusive evidence upon all persons claiming under the parties in privity of estate, as those in this case claim. And independently of authority, the court would have arrived at the same conclusion upon principle.

As to the law of estoppels.

Leases, like other deeds and grants, may be presumed from long possession which cannot otherwise be explained, and under such circumstances a recital in an old deed of the fact of such a lease having been executed, is certainly

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presumptive proof or stronger in favor of such possession under title than the naked presumption arising from a mere unexplained possession.

The uses declared in a deed of marriage settlement were to and for the use of Joanna Philipse and Beverly Robinson (the releasees) and their heirs, until the solemnization of the said intended marriage, and from and immediately after the solemnization of the said intended marriage, then to the use and behoof of the said Mary Philipse and Roger Morris, and the survivor of them, for and during the time of their natural lives, without impeachment of waste, and from and after the determination of that estate, then to the use and behoof of such child or children, as shall or may be procreated between them, and to his, her, or their heirs and assigns forever. But in case the said Roger Morris and Mary Philipse shall have no child or children begotten between them, or that such child or children shall happen to die during the lifetime of the said Roger and Mary, and the said Mary should survive the said Roger without issue, then to the use and behoof of her, the said Mary Philipse, and her heirs and assigns forever. And in case the said Roger should survive the said Mary Philipse without any issue by her or that such issue is then dead without leaving issue, then after the decease of the said Roger Morris, to the only use and behoof of such person or persons, and in such manner and form as the said Mary Philipse shall at any time during the said intended marriage desire the same by her

last will and testament, &c. The marriage took effect, children were born; all

before the attainder of their parents in 1779. Mary Morris survived her husband

and died in 1825, leaving her children surviving her. This is a clear remainder in fee to the children of Roger Morris and wife, which ceased to be contingent on the birth of the first child and opened to let in after born children.

It is perfectly consistent with this limitation that the estate in fee might be defeasible and determinable upon a subsequent contingency, and upon the happening of such contingency might pass by way of shifting executory use to other persons in fee, thus making a fee upon a fee.

The general rule of law founded on public policy is that limitations of this nature shall be construed to be vested when and as soon as they may vest. The present limitation in its terms purports to be contingent only until the birth of a child, and may then vest. The estate of the children was contingent only until their birth, and when the confiscation act of New York passed, they being all born, it was a vested remainder in them and their heirs, and not liable to be defeated by any transfer or destruction of the life estate.

The Act of the Legislature of New York of May 1, 1786, gave to the purchasers of forfeited estates the like remedy in case of eviction, for obtaining compensation for the value of their improvements, as is directed in the Act of 12 May, 1784. The latter act declares that the person or persons having obtained judgment against such purchasers shall not have any writ of possession, nor obtain possession of such lands, &c., until he shall have paid to the purchaser of such lands or person holding title under him the value of all improvements made thereon, after the passing of the act. Held that claims of compensation for improvements made under the authority of these acts of the Legislature of New York are inconsistent with the provisions of the Treaty of peace with Great Britain of 1783, and should be rejected.

That in all cases, a party is bound by natural justice to pay for improvements on land made against his will or without his consent is a proposition which the Court is not prepared to admit.

Page 29 U. S. 4

In the Circuit Court for the Southern District of New York, an action of ejectment was instituted by the defendant in error for the recovery of a tract of land in the Town of Carmel, in the County of Putnam in the State of New York. The plaintiff claimed title on the demise of John Jacob Astor and others, named in the case. The action was tried by a jury at October term, 1829, in the circuit court in the City of New York, and a verdict and judgment rendered for the plaintiff in the same, a bill of exceptions was tendered by the defendant in the circuit court, who prosecuted this writ of error.

After judgment was rendered for the plaintiff in the circuit court, he prayed the court to order a writ of possession to cause him to have possession of the premises, and thereupon James Carver suggested to the court that Roger Morris and Mary Morris his wife, under whom the plaintiff in ejectment claimed, were for fifteen years and upwards next before 22 October, 1779, in possession of a large tract of land in the then County of Dutchess in the State of New York, including the premises. That on 22 October, 1779, the Legislature of the State of New York, by "an act for the forfeiture and sale of the estate of persons who have adhered to the enemies of the state, &c." declared Roger Morris and his wife to be convicted and attainted of adhering to the enemy, and all their estate, real and personal, severally and respectively, in possession, reversion, or remainder was forfeited and vested in the people of the state. That commissioners appointed under this act, on 16 November, 1782, sold, disposed of, and conveyed the land in question in this suit to Timothy Carver, his heirs and assigns, for consideration of seventy-one pounds. That by an act of the Legislature of 12 May, 1784, and an act of 1 May, 1786, it was among other things provided that where judgment in a due course of law should be obtained for any lands sold by the commissioners of forfeitures against any person who derived title thereto under the people of the state or the commissioners,

Page 29 U. S. 5

the person who obtained judgment should not have a writ of possession or obtain possession of the land until he or she should have paid to the person in possession under said title the value of all improvements made thereon, to be estimated as provided in the acts. That he, the said Timothy Carver, purchased the property held by him in the full confidence that he obtained a perfect indefeasible title to the land in fee simple, entered forthwith into possession of the same, made great, valuable, and permanent improvements on the land, which are now in value upwards of $2,000, by which the lands are enhanced in value to that sum and upwards. That Timothy Carver afterwards conveyed the premises to James Carver, the defendant in ejectment, who also made other valuable improvements on the land, before the commencement of this suit, of the value of $2,000 and upwards. That this action has been commenced and prosecuted and a recovery has been had on a ground of title reciting the same; that the Act of the Legislature of New York passed 22 October, 1779, for the forfeiture of estates, &c., did not take from the plaintiff in the suit the title to the premises after the death of Roger Morris and wife, both of whom were deceased at the time of the institution of this suit. So that the plaintiffs were the owners of the land in fee and entitled to recover the possession of the same. And the defendant insists that, under the provisions of the several acts of the Legislature of New York, he ought to be paid the value of the improvements made on the lands; that no writ of possession should issue until the same was paid; and he prays the court to stay the plaintiff from the writ, or from having possession of the lands, until the value shall be paid, and that commissioners may be appointed to ascertain the said value.

The plaintiff did not deny the facts alleged by the defendant, but he denied the right of the defendant to be paid for the improvements and insisted on his right at law to a writ of possession and to the possession of the land without paying the value of the improvements. The court held that the matters suggested by the defendant and admitted by the plaintiff were not sufficient to bar or stay the plaintiff from

Page 29 U. S. 6

having his writ of possession or possession of the land without paying the whole or any part of the value of the improvements estimated or valued in any way whatever, and that the plaintiff should have a writ of possession to cause him to have possession of the lands.

The bill of exceptions set forth the whole proceedings on the trial of the cause and that an agreement had been entered into by the parties to it that the plaintiff is not entitled to the recovery of the property unless it should satisfactorily appear in the suit, in addition to whatever else may be necessary to authorize a recovery therein, that the whole title, both in law or equity, which may or can have been vested in the children and heirs of Roger Morris and Mary his wife of, in, or to the premises or lands in question in the suit has been, as between the grantors and grantees, legally transferred to John Jacob Astor, one of the lessors of the plaintiff, his heirs and assigns, nor unless a proper deed of conveyance in fee simple from John Jacob Astor and all persons claiming under him to the people of the State of New York would be valid and effectual to release, transfer, and extinguish all the right, title, and interest which now is or may have been vested in the children and heirs of Roger Morris and wife.

The plaintiff in the ejectment gave in evidence a patent from William III to Adolphe Philipse, dated 17 June, 1692, for a large tract of land, including the premises, and proved the descent of the same to Frederick Philipse, and that Mary Philipse, who afterwards intermarried with Roger Morris, was a devisee in tail with other children of Frederick Philipse, and by subsequent proceedings in partition, and by a common recovery Mary Philipse became seized in fee simple of one equal undivided part of the land granted by the patent, and that afterwards, on 7 February, 1754, a deed of partition reciting the patent and the title of the heirs was executed between the children and devisees and heirs of Frederick Philipse by which the portions severally belonging to them were set apart and divided to each in severalty, one portion being allotted to Mary Philipse, the land in controversy being included in the land surveyed

Page 29 U. S. 7

and held under the patent and deed of partition. The part allotted to Mary Philipse in the partition was No. 5.

The plaintiff then offered to read in evidence a deed of marriage settlement, dated 13 January, 1758, intended to convey all the land in No. 5, between Mary Philipse, of the first part, Roger Morris of the second part, Joanna Philipse and Beverly Robinson of the third part, on the back of which deed was endorsed a certificate in the following terms:

"Be it remembered that on 1 April, 1787, personally came and appeared before me John Sloss Hobart, one of the justices of the supreme court of the State of New York, William Livingston, Esq., Governor of the State of New Jersey, one of the subscribing witnesses to the within written indenture, who being by me duly sworn, did testify and declare that he was present at or about the day of the date of the within indenture, and did see the within named Joanna Philipse, Beverly Robinson Roger Morris, and Marry Philipse, sign and seal the same indenture, and deliver it as their and each of their voluntary acts and deeds, for the uses and purposes therein mentioned, and I having carefully inspected the same, and finding no material erasures or interlineations therein other than those noted to have been made before the execution thereof, do allow the same to be recorded. John Sloss Hobart."

Upon the back of the deed was also endorsed a certificate of the recording thereof, in the following words:

"Recorded in the Secretary's Office of the State of New York in deed book commencing 25 November, 1774, page 550. Examined by me this 11 April, 1787. Robert Harpur, D. Secretary."

To which said evidence so offered the counsel for the defendant objected upon the ground that the certificate was not legal and competent evidence to be given to the jury, and did not entitle the plaintiff to read the deed in evidence without proof of its execution, and that the certificate was not sufficient, inasmuch as it did not state that William Livingston testified or swore that he was a subscribing witness to the deed. The parts of the deed of 13 January, 1758, material to the case are the following:

"This indenture, made 13 January in the thirty-first

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year of the reign of our sovereign lord, George II, by the grace of God, of Great Britain, France, and Ireland, King, defender of the faith, &c., and in the year of our Lord 1758, between Mary Philipse of the first part, Major Roger Morris of the second part, and Joanna Philipse and Beverly Robinson of the third part, witnesseth that in consideration of a marriage intended to be had and solemnized between the said Roger Morris and Mary Philipse and the settlement hereafter made by the said Roger Morris on the said Mary Philipse, and for and in consideration of the sum of five shillings, current money of the province of New York, by the said Joanna Philipse and Beverly Robinson to her, the said Mary Philipse, at or before the ensealing and delivery of these presents, well and truly paid, the receipt whereof is hereby acknowledged, and for divers other good causes and considerations her thereunto moving, she, the said Mary Philipse, hath granted, bargained, sold, released, and confirmed, and by those presents doth grant, bargain, sell, release, and confirm unto the said Joanna Philipse and Beverly Robinson (in their actual possession now being by virtue of a bargain and sale to them thereof made for one whole year by indenture bearing date the day next before the day of the date of these presents, and by force of the statute for transferring of uses into possession) and to their heirs all those several lots or parcels of land, &c.,"

describing the property, in which is included the land in controversy in this suit.

"To have and to hold all and singular the several lots of land, &c., and all and singular other the lands, tenements, hereditaments, and real estate, whatsoever of her the said Mary Philipse, &c., unto the said Joanna Philipse and Beverly Robinson and their heirs, to and for the several uses, intents, and purposes, hereinafter declared, expressed, limited, and appointed and to and for no other use, intent, and purpose whatsoever; that is to say to and for the use and behoof of them the said Joanna Philipse and Beverly Robinson and their heirs until the solemnization of the intended marriage, and to the use and behoof of the said Mary Philipse and Roger Morris and the survivor of them for and during

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the term of their natural lives, without impeachment of waste, and from and after the determination of that estate, then to the use and behoof of such child or children as shall or may be procreated between them, and to his, her, or their heirs and assigns forever; but in case the said Roger Morris and Mary Philipse shall have no child or children begotten between them, or that such child or children shall happen to die during the lifetime of the said Roger and Mary and the said Mary should survive the said Roger without issue, then to the use and behoof of her, the said Mary Philipse, and her heirs and assigns forever, and in case the said Roger Morris should survive the said Mary Philipse without any issue by her or that such issue is then dead without leaving issue, then, after the decease of the said Roger Morris, to the only use and behoof of such person or persons and in such manner and form, as she, the said Mary Philipse, shall at any time during the said intended marriage devise the same by her last will and testament, which last will and testament, for that purpose, it is hereby agreed by all the parties to these presents that it shall be lawful for her at any time during the said marriage to make, publish and declare the said marriage, or anything herein contained, to the contrary thereof in any wise notwithstanding, provided nevertheless, and it is the true intent and meaning of the parties to these presents, that it shall and may be lawful, to and for the said Roger Morris and Mary Philipse, jointly, at any time or times during the said marriage, to sell and dispose of any part of the said several lots or parcels of land, or of any other her lands, tenements, hereditaments and real estate whatsoever, to the value of

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