Jackson v. Huntington - 30 U.S. 402 (1831)
U.S. Supreme Court
Jackson v. Huntington, 30 U.S. 5 Pet. 402 402 (1831)
Jackson v. Huntington
30 U.S. (5 Pet.) 402
Where one having no title conveys to a third person, who enters under the conveyance, the law holds him to be a disseizor.
That an actual or constructive possession is necessary at common law to the transmission of a right to lands is incontrovertible. It is seen in the English doctrine of an heir's entering in order to transmit it to his heirs, but whatever be the English doctrine and of the other states as to the right of election to stand disseized, it is certain that the New York courts have denied that right, both as to devises and common law conveyances, without the aid of a statute repealing the common law.
This Court can only reverse a judgment when it is shown that the court below has erred. It cannot proceed upon conjecture of what the court below may have laid down for law; it must be shown in order to be judged what instructions were in fact given and what were refused.
Adverse possession is a legal idea, admits of a legal definition, of legal distinctions, and is therefore correctly laid down to be a question of law.
Adverse possession may be set up against any title whatsoever, either to make out a title under the statute of limitations or to show the nullity of a conveyance executed by one out of possession.
The common law generally regards disseizin as an act of force, and always as a tortious act; yet out of regard to having a tenant to the precipe, and one promptly to do service to the lord, it attaches to it a variety of legal rights and incidents.
Rights accruing under acts of limitation are recognized in terms as prima facie originating in wrong, although among the best protections of right.
If there be a tenancy in common, the law appears to be definitively settled in New York that the grantee of one tenant in common for the whole, entering on such conveyance, may set up the statute against his co-tenants in common.
The plaintiff in error in 1824 instituted an action of ejectment in the District Court of the United States for the Northern District of New York for the recovery of a tract of land situated in the Village of Utica and the County of Oneida in the Northern District of New York. The cause was tried at January term, 1827, and a verdict and judgment were rendered for the defendant. The plaintiff excepted to the opinion of the court on various points of evidence and of law presented in the course
of the trial, and the court sealed a bill of exceptions. The plaintiff sued out a writ of error to this Court.
The bill of exceptions states at large all the evidence and proceedings on the trial of the cause.
The title of the lessor of the plaintiff and that of the defendant, as exhibited in the evidence contained in the bill of exceptions, was as follows:
Philip Schuyler purchased Cosby's manor, sold by the Sheriff of the County of Albany for arrears of quit rent, under a warrant from the Chief Justice of the State of New York dated May 7, 1772. This property was conveyed to Philip Schuyler by a deed executed by the Sheriff of the County of Albany dated July 20, 1772.
General John Bradstreet made his last will and testament on 23 September, 1774. The will, after providing for the adjustment of his accounts, he being in the British service, and devising a farm to John Bradstreet Schuyler, son of Colonel Schuyler, and some legacies, proceeds
"All the rest of my estate, real, and personal I devise and bequeath to my two daughters equally, to be divided between them as tenants in common in fee. But I charge the same with the payment of one hundred pounds sterling per annum to their mother during her life. Notwithstanding the former devise for the benefit of my wife and daughters, I empower my executors to do all acts and execute all instruments which they may conceive to be requisite to the partition of my landed estate, and I devise the same to them as joint tenants, to be by them sold at such time and in such manner as they shall think most for the interest of my daughters, to whom the net produce shall be paid in equal shares, the sum of one hundred pounds sterling per annum being first deducted, or a capital to secure the same set apart for an annuity to my wife, as aforesaid. I order that Doctor Bruce have one hundred pounds for his trouble and for his kindness to me; my watch I give to Mr. Gould as a mark of my friendship. I leave funeral expenses to the discretion of my executors, and I appoint for the execution of this my will the said Colonel Philip Schuyler and William Smith, Esq. New York."
Martha Bradstreet, one of the daughters of General Bradstreet, made her will on 15 May, 1781, and devised to
her mother, Mrs. Mary Bradstreet, the produce and interest of her estate, real and personal, during her life, and after her decease she devised one equal third of her estate, real and personal, to her sister Elizabeth Livius, her heirs and assigns, to be at her disposal independent of her husband; one-third part to Samuel Bradstreet and Martha Bradstreet, children of her late brother Samuel Bradstreet, and to their heirs, with benefit of survivorship, the produce of such one-third part, and part of the principal, to be applied to their maintenance and education, if necessary. The remaining one-third she gave to her sister Agatha, wife of Charles Du Belamy, during her life, independent of her husband; after his death, she surviving, to her in fee, but if she died before her husband, to her children; but if she survived her husband, and had no children, and should not dispose of the same by will, the same should go to Elizabeth Livius and her heirs. A like devise of the share given to Elizabeth Livius was made in favor of her sister Agatha if she should die without disposing of her share and without issue.
Sir Charles Gould was appointed sole executor of this will, and authorized to act relative to the estate of the testatrix in America, by the following provision:
"And I do authorize my said executor to sell and dispose of such real estate as I may be entitled to in North America or elsewhere, and to execute conveyances for the same, and to place out my moneys upon such securities as he shall deem proper, and in such manner and form, as to the shares devised to my sister Agatha, and to my nephew and niece, Samuel and Martha, respectively, as shall be conformable to the provisions of the will in respect to each of those shares."
It was in evidence that Martha Bradstreet, the testatrix, and John and Mary Bradstreet, were deceased.
The will of Elizabeth Livius, deceased, purporting to be executed on 20 November, 1794, was offered in evidence. The court, not considering it duly proved, refused to permit it to be read to the jury, to which opinion an exception was taken by the plaintiff. By that will, Mrs. Martha Bradstreet, the lessor of the plaintiff and the daughter of Samuel Bradstreet, the brother of Mrs. Livius, then deceased, was made her sole heir. The provisions of the will were:
"I hereby constitute and appoint my dear niece, Martha Bradstreet,
daughter of my late brother Samuel Bradstreet, major of the fortieth regiment of foot, to be my sole heir, to whatever estate, real or personal, I may die possessed of, to be paid or delivered unto her at the age of twenty-one years or day of marriage, whichever may first happen, provided she marries with the consent of my most respected friend, Sir Charles Morgan, Bart., whom I hereby appoint executor of this my last will and testament. But in case she should die before she attain twenty-one years of age or before she be married as aforesaid, I then appoint her brother, Samuel Bradstreet, a lieutenant in the 25th regiment of foot, to be my heir in her place and stead."
Martha Bradstreet, the devisee and the lessor of the plaintiff, afterwards, with the consent of Sir Charles Morgan, married Matthew Codd, but being divorced from her husband, she resumed her original name. The evidence to prove the assent of Sir Charles Morgan to this marriage was excepted to by the counsel for the defendant, and the exception was sustained. To this ruling of the district court the plaintiff excepted.
The plaintiff also gave in evidence a map of the whole tract of land conveyed to Philip Schuyler by the Sheriff of the County of Albany in 1772, and proved by Mr. John R. Bleecker, who was sworn as a witness, that said map was in the handwriting of his grandfather, that he, the witness, received it of his own father, Rutger Bleecker, deceased, and that he, the witness, holds certain parts of said land under title derived from his said father, who also in his lifetime was in possession of the same pursuant to a partition deed thereinafter mentioned and according to the allotments on the said map, which said map appeared to have been made on 31 August, 1780, and was stated to be in pursuance of a survey of said tract.
And there was also given in evidence a deed of partition between Philip Schuyler and Rutger Bleecker, dated 19 December, 1786, whereby and wherein lot No. 97, as described on the map, was released by Rutger Bleecker to Philip Schuyler, and the counsel for the said James Jackson also gave in evidence and proved that the premises in question, upon the trial of that issue, were part of the lot No. 97.
On 16 May, 1794, a deed was executed by Philip Schuyler and others, of which the following is an abstract:
"The parties were, Philip Schuyler, of the County of Albany in the State of New York, Esquire, executor of the last will and testament of John Bradstreet, deceased and hereinafter mentioned, of the one part, and Agatha Evans, of the City of New York, in the State of New York, widow, one of the daughters of the said John Bradstreet, deceased, and Edward Goold, of the same place, merchant, attorney to Sir Charles Gould, Knight, the only executor of the last will and testament of Martha Bradstreet, deceased, the other daughter of the said John Bradstreet, of the other part."
It recites the will of General John Bradstreet and that Philip Schuyler, at the time of the making thereof, was seized in trust for the said John Bradstreet of one undivided fourth part of the tract of land described in the partition deed executed by himself and Rutger Bleecker (together with other lands), the death of William Smith, his co-executor, and that Agatha Evans, formerly Agatha Du Bellamy, is one of the daughters of John Bradstreet. It also recites the will of Martha Bradstreet, the daughter of John Bradstreet, and the devises in the same of one-third to Samuel and Martha Bradstreet, children of her brother Samuel Bradstreet, deceased, one-third to his sister Agatha, then the wife of Charles Du Bellamy, afterwards Agatha Evans, the wife of Charles John Evans, and the remaining one-third to her sister Elizabeth Livius, and that partition had been made among the proprietors of the tracts in the manner of Cosby, describing the lots which fell to Schuyler, as trustee of John Bradstreet, and among them lot No. 97; and that the same had, with other lots which fell to Schuyler in his own right, been conveyed to him by the deed of partition. The deed states that the said Philip Schuyler,
"as well to invest the said Agatha Evans with a legal title to her proportion of the said lands and tenements, devised to her by virtue of the will of the said John Bradstreet and Martha Bradstreet, as to convey the rest and residue thereof to the said Edward Goold in trust for the said persons who may be entitled to the benefit thereof under the will of the said Martha Bradstreet,"
and in consideration of ten shillings, &c., hath,
"by virtue also of the power and authority with which he is so as aforesaid invested and of all
other powers which he may lawfully claim as executor,"
and doth "grant, bargain, sell, alien, release, and confirm" to Mrs. Evans and Edward Goold and their heirs and assigns the said lands which fell to the share of the said Philip Schuyler, as a trustee for the said John Bradstreet, (describing them at length, and including lot No. 97) with the reversion and reversions, &c., and all the right, title, &c., in law or equity, &c. (in the usual form), to have and to hold, &c., to the said Agatha Evans and Edward Goold, their heirs and assigns, in manner following, viz., two equal undivided third part to Mrs. Evans, and the remaining one undivided third to the said Edward Goold, his heirs and assigns,
"and upon the following trusts -- that is to say, to sell the same from time to time as may be most expedient, and every or any parcel thereof, and after deducting the charges of sale and other contingent expenses attending the said trust, to divide the residue of the money to arise from such sale to and among the said advisees, Samuel Bradstreet and Martha Bradstreet, and the said Elizabeth Livius, and their heirs, executors, and administrators, according to their several interests in the estate of the said Martha Bradstreet, by virtue of her will or to such persons as would be entitled thereto, upon the happening of any of the said contingencies in the said will mentioned,"
&c. The deed further contains covenants against Schuyler's own acts or encumbrances and for further assurance.
It was in evidence that Mrs. Martha Bradstreet was twenty-one years of age on 10 August, 1801; that she and her husband came to the United States to reside in 1797, and that she has ever since resided therein. The acts of the Legislature of New York, which enable alienees to take and hold lands, were also in evidence.
A deed was given in evidence by the plaintiff of the following purport. It was executed on 22 October, 1804, at the City of New York by Edward Goold to Martha Codd, late Martha Bradstreet, wife of Matthew Codd of Utica, of New York. It recites the conveyance executed by Philip Schuyler on 16 May, 1794, Agatha Evans, and the said Edward Goold, merchant, and attorney to Sir Charles Gould, the only executor of Martha Bradstreet, deceased, a daughter of General Bradstreet, and all the purposes of that indenture, and that Martha Codd, late Martha Bradstreet, by the will of Elizabeth
Livius, has, since the execution of the deed from Philip Schuyler, become entitled to all the estate of Elizabeth Livins, conveyed by the deed of Schuyler to Edward Goold, in trust for Sir Charles Gould, as executor of the will of Martha Bradstreet, not sold or conveyed according to the trust, and that Edward Goold, having became a bankrupt, has been ordered by chancery to transfer and convey to Martha Codd all the estate vested in him as trustee, and that he is willing to convey to the said Martha Codd all the estate vested in him as aforesaid, as her trustee, to which she may be entitled to under the will of Martha Bradstreet. The deed then proceeds to convey to Martha Codd, her heirs and assigns, all the real estate held by Edward Goold at the time of his becoming a bankrupt, as aforesaid, as trustee as aforesaid for the said Elizabeth Livius, by virtue of the several indentures of release executed by the said Philip Schuyler, as aforesaid, and the several wills therein referred to, and also all the real estate held by him, the said Edward Goold, at the time of his becoming a bankrupt, as aforesaid, as trustee for the said Martha Codd by virtue of the said several indentures and wills above referred to, to have and to hold unto her, the said Martha Codd, her heirs and assigns, to the only proper use, benefit, and behoof of her, the said Martha Codd, her heirs and assigns forever.
The defendant gave in evidence a deed of indenture executed by Charles John Evans and Agatha his wife and Daniel Ludlow and Edward Goold, conveying lot No. 97, the property in controversy, to Stephen Potter.
The deed dated 24 December, 1790, was executed by Charles John Evans, Agatha Evans, Charles Gould, executor of the last will of Martha Bradstreet, by Daniel Ludlow and Edward Goold, his attorney. The deed is in the following words:
"This indenture made the 24 December, 1790, between Charles John Evans, now of Brooklyn in the County of Kings, gentleman, and Agatha his wife, one of the daughters and devisees of John Bradstreet, Esquire, deceased, and Sir Charles Gould, executor of the last will and testament of Martha Bradstreet, the other daughter and devisee of the said John Bradstreet, by Daniel Ludlow and Edward Goold of the City of New York, merchants, his attorneys, of the one part,
and Stephen Potter, of Whitestown, Montgomery County, State of New York, of the other part, witnesseth that the said Charles John Evans and Agatha his wife, and Sir Charles Gould, for and in consideration of the sum of four hundred pounds, lawful money of the State of New York, to them in hand paid by the said Stephen Potter at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, aliened, released, and confirmed, and by these presents do clearly and absolutely grant, sell, alien, release, and confirm unto the said Stephen Potter and his heirs and assigns forever all that certain lot, piece, or parcel of land situate lying and being in the County of Montgomery and State of New York, part of a larger tract granted to Joseph Worrell and others, by patent dated the 2 January, 1734, which lot upon a late division of the said tract was distinguished by number ninety-seven, and contains four hundred acres of land, with the rights, members, and appurtenances thereof, and all easements, advantages, and hereditaments whatsoever to the same belonging or in anywise appertaining, and the reversion and reversions, remainder, and remainders, rents, and services of the same, and all the estate, right, title, interest, property, claim, and demand whatsoever, either at law or in equity, of them the said Charles John Evans and Agatha his wife, and Sir Charles Gould, and every of them, of in and to the same, and of in and to every part and parcel thereof, with the appurtenances, to have and to hold the same lot of land, hereditaments, and premises unto the said Stephen Potter, his heirs and assigns, to the only proper use and behoof of the said Stephen Potter, his heirs and assigns forever. And the said Charles John Evans, for himself, his heirs, executors, and administrators doth hereby covenant and agree to and with the said Stephen Potter, his heirs and assigns, that he the said Stephen Potter, his heirs and assigns forever, shall and may peaceably and quietly have, hold, and enjoy the said lot of land, hereditaments, and premises free and clear of all encumbrances titles and charges made by the said John Bradstreet or any person or persons claiming or to claim by, from, or under him. And that the said Charles John Evans and his heirs, the said lot of land, hereditaments, and premises, with the appurtenances, to the said
Stephen Potter, his heirs and assigns, against all and every person or persons whomsoever, shall and will warrant and forever defend by these presents. Received on the day of the date of the within indenture of the within Stephen Potter, the sum of four hundred pounds, being the full consideration money within mentioned. Charles John Evans, Ludlow & Goold."
It was proved on the part of the defendant that Stephen Potter, the grantee, entered upon and took possession of lot No. 97 under this deed immediately on its execution, claiming to be sole and exclusive owner of the same, and continued in such possession until his death fifteen or sixteen years before the trial, having made large and valuable improvements thereon. That after his decease, his son, with other members of his family, succeeded to and continued in possession of such parts of the lot as remained unsold by their father, claiming to be owners of the land, and that being in possession and so claiming the land, Stephen Potter, the son, conveyed the premises in the ejectment to Henry Huntington, the defendant. No deed was produced, or proved except by parol, as stated, and the son of Stephen Potter and other persons deriving title from his father to parts of the lot continued in possession of the residue of the lot, claiming the absolute ownership thereof, and the defendant has ever since been in possession and actual occupancy of the same, claiming the ownership in fee by virtue of his purchase. But no buildings had been erected on that part of lot No. 97 for the recovery of which this suit is brought until since 1824, and at that time a part of the premises were without fence.
The death of General John Bradstreet prior to the death of his daughter Martha Bradstreet, and the death of Philip Schuyler on 18 November, 1804, were also admitted.
The bill of exceptions concludes as follows:
"Whereupon the said counsel for the said James Jackson did then and there insist before the said judge, on the behalf of the said James Jackson, that the said matters so produced and given in evidence on the part of said James Jackson, as aforesaid, were sufficient, and ought to be admitted and allowed as decisive evidence to entitle the said James Jackson to a verdict
on the said issue in this cause. And the said counsel for the said James Jackson also insisted that the said deed from Charles John Evans and Agatha his wife, and Daniel Ludlow, and Edward Goold, as attorney of Sir Charles Gould, executor of the last will and testament of Martha Bradstreet, deceased, to the said Stephen Potter, for the said lot No. 97, was void as to all, except the interest of the said Charles John Evans and Agatha his wife, and could not be the foundation of an adverse possession. And the said counsel for the said James Jackson also insisted and objected that there was no proof of the existence of any power of attorney from the said Sir Charles Gould, the executor of the said last will and testament of the said Martha Bradstreet, to the said Daniel Ludlow and Edward Goold, authorizing them to sell and convey the estate or interest of the said testatrix in the said lot No. 97, nor indeed of any power of attorney whatever."
"And the said counsel for the said James Jackson also insisted that if the deed aforesaid to the said Stephen Potter were valid and sufficient to pass anything more than the rights and interests of the said Charles John Evans and Agatha his wife, yet that from the recitals in the said deed, the said Stephen Potter had notice that he could only purchase an equitable interest, the rights merely of cestuis que trust, and could not therefore hold adversely to the said Philip Schuyler, the trustee and executor of the said will of the said John Bradstreet."
"And the counsel for James Jackson also insisted that the said Stephen Potter, claiming to hold the same identical title of the lessor of the plaintiff, neither he nor those claiming under him could set up his possession as adverse to that title."
"And the counsel for James Jackson did then and there pray the judge to admit and allow the said matters, so produced and given in evidence for the said James Jackson, to be conclusive in favor of the said James Jackson, to entitle him to a verdict in this cause, and to this the counsel learned in the law, for the said Henry Huntington, did then and there insist before the said judge, that the said matters so given in evidence on the part of the said James Jackson, were not sufficient, nor ought to be admitted or allowed to entitle
the said James Jackson to a verdict; but that the said matters so produced and given in evidence on the part of the said Henry Huntington were sufficient, and ought to be admitted and allowed to bar the said James Jackson of his action aforesaid."
"And the judge did then and there deliver his opinion to the jury that although the several matters so produced and given in evidence on the part of the said plaintiff made out a clear paper title to the equal undivided part claimed of that parcel of the said lot No. 97 which was in the possession of the said defendant, and were therefore sufficient in law to entitle the said plaintiff to recover unless such title was defeated by the adverse possession set up on the part of defendant, and that although the above recited deed from Charles John Evans and Agatha his wife, and Sir Charles Gould, executor of the last will and testament of Martha Bradstreet, deceased, by Daniel Ludlow and Edward Goold, his attorneys, to Stephen Potter, without further proof of the authority of Daniel Ludlow and Edward Goold to execute the same, was insufficient of itself to convey a legal title to the undivided share of the premises sought to be recovered in the present action, yet that there was nothing appearing upon the face of this deed, nor anything in the circumstances connected with its execution, as far as they had been shown, which in law would preclude the defendant from availing himself of possession under it as a bar to the plaintiff's action or prevent the possession of the said Stephen Potter taken under and in virtue of the said deed from being considered adverse to the title of the lessor of the plaintiff and to the title of the said Philip Schuyler, the executor and trustee of the said John Bradstreet, provided the proof was sufficient in other respects to establish the fact of such adverse possession, and the judge did then and there also further deliver his opinion to the jury that the effect of an adverse possession in the said Stephen Potter at the time of the execution of the said above mentioned and recited deed from the said Philip Schuyler, executor as aforesaid to the said Agatha Evans, and Edward Goold, would be to render the said deed inoperative and void as to the said lot No. 97, and prevent any title from the said Philip Schuyler to the said Agatha Evans and Edward
Goold passing by the said deed in or to the said lot No. 97, and the said judge did then and there further deliver his opinion to the jury that although it was generally true that one tenant in common was not permitted to set up his possession as adverse to the title of his co-tenant, yet that one entering into possession of land under a deed for the whole, and claiming the entire interest, would not be thus precluded, although it should subsequently appear that such deed conveyed only an undivided share."
"Whereupon the said counsel for the said James Jackson did then and there, on the behalf of the said James Jackson, except to the aforesaid opinion of the said judge and insisted on the said several matters as sufficient to sustain the said action on the part of the said James Jackson."
"And thereupon the judge, after explaining to the jury what in law constitutes an adverse possession and submitting to them as a question of fact whether such a possession had been proved, directed them, with the assent of the counsel on both sides, if they should agree upon their verdict before the opening of the court next morning, to seal up their verdict. And upon the opening of the court on the next morning, the jury came in with a sealed verdict in favor of the said Henry Huntington, but upon being called upon by the clerk at the request of the counsel for the said James Jackson severally to answer whether such was their verdict, two of the said jurors dissented therefrom."
"One of the jurors thereupon stated to the court that the doubt in his mind was whether he was bound to decide according to law or according to evidence, and that it appeared to him that according to the evidence. the plaintiff ought in justice to have the land. And the judge thereupon replied to the juror that a juror was certainly not at liberty, in making up his verdict, to disregard the law; that if the law required alteration, it was the province of the legislature to alter it; but that it was the duty of judicial tribunals to administer it as they found it; that it was the province of the judge to decided questions of law, and that the jury was bound to respect such decision; that the question whether or not it was competent for the defendant to set up the defense of adverse
possession under the deed to Stephen Potter, was a question of law, and had been decided against the plaintiff; that what in law constitutes an adverse possession was also a question of law, and that it was for the jury to say under the instructions which had already been given to it upon that point whether such possession had been proved; that if it believed from the evidence that such a possession had been established, it was bound to find a verdict in favor of the defendant. Whereupon the said juror, after some hesitation, assented to the said verdict, and the said counsel for the said James Jackson did then and there, in behalf of the James Jackson, except to the opinion of the said judge so declared to the said juror. By the direction of the court, the other juror who dissented was then called upon by the clerk to answer whether he agreed to the said verdict. But the said juror still persisted in his dissent and stated that he entertained the same doubts which had been expressed by his fellow juror. Whereupon the said judge directed the said jury to retire and again deliberate upon its verdict. And the said counsel for the said James Jackson did then and there, in behalf of the said James Jackson, except to the said last mentioned direction of the said judge. And the jury thereupon retired, and after a short absence returned again into court with a verdict in favor of the said Henry Huntington. Whereupon the said jury was again polled at the request of the counsel for the said James Jackson, and severally assented to the said verdict."
The points presented for the consideration of the court on the part of the plaintiff in error were:
1. That Martha Bradstreet, formerly Martha Codd, the lessor of the plaintiff, acquired the equitable interest in and title to the one equal undivided fourth part of the premises in question, by virtue of the respective wills of Martha Bradstreet (one of the two daughters and devisees of general John Bradstreet) and Elizabeth Livius.
2. That the deed from Edward Goold to Martha Codd (now Martha Bradstreet), the lessor of the plaintiff, by virtue of the decree of the Court of Chancery of the State of New York, conveyed to her the legal title to the one equal undivided fourth part of the premises in question.
3. That even if the deed from Edward Goold to the lessor of the plaintiff did not convey the legal title, yet that on the death of General Philip Schuyler on 18 November, 1804, without having executed the will of General John Bradstreet, the legal estate in the whole premises in question vested in the heirs of General John Bradstreet or in their legal representatives.
4. That the respective wills of Martha Bradstreet (one of the two daughters and devisees of General John Bradstreet) and of Elizabeth Livius (one of the devisees of the said Martha Bradstreet) vested in the lessor of the plaintiff the legal as well as the equitable title to the one equal undivided fourth part of the premises in question.
5. That upon the whole record, the judgment rendered in the court below in favor of the defendant in the court below is erroneous, and ought to be reversed.