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tutional provision, but also for the reason that it prac-mission, "they had no other power but only to keep tically affects important public and private interests.

the peace." But from time to time their powers were enlarged, and they came to constitute a very important agency in the administration of local government in England. They discharged a great variety of duties connected with the support of the poor, the repa. ration of highways, the imposition and levying of parochial rates, and other local affairs. See enumeration in St. 76, Geo. II, ch. 18.

They were invested with judicial powers for the first

The policy of fixing by constitutional provision a limitation of age to judicial service, first established in this State in respect to the chancellor and judges of the Supreme Court by the Constitution of 1822, and abandoned in the Constitution of 1846, was re-established by the judiciary article of 1869, primarily with reference to the terms of those judges, which by the same article had been extended to the period of four-time, it seems, by the statute, 34 Ed. III, ch. 1, which teen years. Folger, J., People v. Gardner, 45 N. Y. 819. On this ground it was claimed in the case of the People v. Brundage, 78 N. Y. 403, that the limitation of age in the 13th section did not apply to county judges, whose terms were by the 15th section fixed at six years instead of four years, as previously established. The court however, resting upon the broad language of the restrictive clause, held that county judges were included.

It is however, we think, quite evident that the limitation does not apply to every officer who is invested with judicial power. It is the "office of justice or judge of any court" which the clause declared shall not be held by any person beyond the age specified. But the judicial function may be vested in a person to be exercised for certain purposes and ou particular occasions, who does not hold "the office of justice or judge of any court" within the meaning of this clause.

The Constitution itself furnishes one illustration. The president of the Senate, the senators, and the judges of the Court of Appeals comprise the court for the trial of impeachments, created by the 1st section of the 6th article. But neither the lieutenant-governor nor the senators, although they act as judges ou the trial of an impeachment," hold "the office of justice or judge of any court." The office which the lieutenant governor holds is that indicated by his title, and so of the senators. The judicial function which they exercise in the particular call is annexed to their respective offices. They sit as judges on the trial of impeachments, but they do not hold the office of judges while acting as such. We think it plain that they would not be disqualified from acting as members of the court after attaining the age of seventy years, under the clause in the Constitution now in question.

gave them power to try felonies, but then only when two or more acted together, and not singly, and it is said by Blackstone (vol. 1, p. 349), "they then acquired the more honorable appellation of justice." I do not find that they ever exercised in England jurisdiction in civil causes.

The office of justice of the peace was brought here by the English colonists. From the earliest colonial period it has existed in this country. By the code known as The Duke's Law" for the government of the colony of New York, promulgated in 1665, justices of the peace were commissioned for the towns in the province, with the same powers as in England. The judicial establishment created by "The Duke's Laws," comprised a local court in each town, with jurisdiction of actions of debt and trespass, under £5, to be held by the constable and overseers of the town; a Court of Sessions for each of the three ridings, and a Court of Assize for the whole province. Justices of the peace were entitled to sit as members of the Court of Sessions and the Court of Assize, but not of the town courts. In 1691 the judicial system was reorganized by an act of the Colonial Legislature. By that act the town courts were changed into Courts of Justice of the Peace, to be held by one justice and two freeholders. It was not until 1737 that a justice of the peace was empowered singly to hold a court for the trial of actions. See monograph upon the courts in this State, by Chief Judge Daly, Preface 1 E. D. Smith's Rep.; also 3 Daly's Rep. Appendix.

But from the earliest colonial period until this time, justices of the peace here, as in England, have been invested with various and important functions connected with local administration, quite independent of their judicial authority. A glance at the statutes will show how important a part these officers have had in the administration of the poor laws, the highway acts, the

Another illustration is furnished in the statutes creating mayor's courts in cities, by which judicial pow-adjustment of town and county charges, and indeed ers are vested for certain limited purposes, in mayors and other municipal officers. There is such a court in the city of Hudson, and it may be in other cities, which is held by the mayor, or by the mayor in conjunction with other officers. The mayor in these cases acts as a judge or magistrate, but the judicial function is incident to the office of mayor. He does not hold the office of judge, and if eligible to the office of mayor, although seventy years of age, he may, we think, discharge the duties connected with that office after that time, including the holding of the Mayor's Court, without a violation of the Constitution.

in nearly every department of local administration. It is important to notice that the judicial functions exercised by justices of the peace was a graft upon their original authority, and that the enlargement of their powers has not been in this direction alone, but that by gradual accretion they have come to constitute a most important factor in the corporate administrative life of towns and counties. The gradual growth of their powers and functions furnishes a good illustration of the manner in which institutions grow up and adapt themselves to the changing conditions and demands of society, until they are brought to subserve in the most effectual way the public interests.

We have failed in the purpose of this brief historical

Returning to the immediate point now in judgment the question now recurs, does a justice of the peace "hold the office of justice or judge of any court within the meaning of section 13, article 6 of the Con-reference to the origin and growth of the office of jusstitution? This office was not created by the Coustitution. Justices of the peace had been known to the common law of England for a century and a half before America was discovered. They were in their original institution mere conservators of the peace, exercising no judicial functions. It is said in Burn's Justice, vol. 3, p. 4 (19th ed.), that by the statute of 1 Ed. III, which is the first statute that ordains the assignment of justices of the peace by the king's com

tice of the peace, unless it shows how widely it differs in the circumstances of its institution and development, and in the variety of its functions from the office of judge of an ordinary court. We know as matter of experience and observation that justices of the peace are not in common speech known as judges, but are uniformly called by the distinctive title of their office, "justices of the peace." Unquestionably their jurisdiction as a tribunal for the trial of small causes

is now the most important of their functions, but they have never lost their character as administrative officers, and in this respect they occupy a position and character and exercise powers unique, and in many respects quite dissimilar to those exercised by other judicial officers.

An examination of other sections in the judiciary article throws light upon the construction of the 13th section, and furnishes strong ground for an inference that justices of the peace were not intended to be included within the restrictive clause. In provisions intended to apply to judges or justices of inferior courts and also to justices of the peace, the latter are specially mentioned by their name of office, and their inclusion is not left to inference from general words.

The 11th section of the 6th article, after prescribing how judges of Court of Appeals and of the Supreme Court may be removed, proceeds as follows: "All ju dicial officers, except those mentioned in this section, and except justices of the peace and judges and justices of inferior courts not of record, may be removed," etc.

The same language is repeated in section 18: "Justices of the peace and judges and justices of inferior courts not of record," etc. Justices of the peace are in a general sense judges of an inferior court, but their special designation in these provisions by the title of their office is a recognition in the Constitution itself of their peculiar and distinctive character, and indicates that they were not intended to be included within the general words, "judges or justices of a court," as used in that instrument. The provision in the 13th section that "no person shall hold the office of justice or judge of any court," is to be interpreted in the light of the antecedent and subsequent sections, and so interpreting them, justices of the peace are not, we think, included.

There are other considerations which tend to support this conclusion. There was no apparent reason

or policy for subjecting justices of the peace to the limitation of age applicable to the general class of judges. Their terms are short, and are left by the amended judiciary article as they were fixed by the Constitution of 1846.

It does not appear that any public inconvenience has resulted from the absence of a limitation of age appli. cable to these officers. Their number, four in each town, afforded a reasonable guaranty that the public service would not suffer by the disability of any of the incumbents arising from age, and the easy means provided for their removal would subject the public at most to only a temporary inconvenience. It cannot be claimed that the prohibition in the 13th section would have been applied to justices of the peace, if they alone had been in the contemplation of the framers of that instrument.

We are of opinion for the reasons stated that a justice of the peace does not "hold the office of justice or judge of any court" within the purview of the 13th section. To avoid misapprehension, it may be proper to say that we do not intend to decide that the prohibition may not apply to persons in office whose official title is not that of judge. If the office is a judicial one, and is created for the exercise by the incumbent of the judicial functions, a court, as for example, a surrogate, quite other considerations would apply than those which appertain to the case now before us. This case rests upon the dual character of the office of justice of the peace, the essential distinction between his duties and functions and those of any other judicial officer, and upon a discrimination made by the Constitution itself. See Settle v. Van Evrea, 49 N. Y.

280.

The order of the General and Special Terms should be reversed and the writ dismissed. All concur.

EJECTMENT- CONTINUOUS ADVERSE POSSESSION BY TACKING.

MARYLAND COURT OF APPEALS, MARCH 27, 1884.

HANSON V. JOHNSON.*

A feme covert died in December, 1854, leaving a will, which was admitted to probate, but was not executed in due form to pass real estate as required by the act of 1842, ch. 293, then in force, because the consent of her husband in writing was not annexed thereto, and also because it was not executed sixty days before her death. By said will she devised a farm to her husband for life, with remainder in fee to her nephew. Under it her husband on the 1st of January, 1855, entered into possession of the property, claiming title as tenant for life, and so continued in possession until the 5th of February, 1868, when he united with the nephew in a sale and conveyance to J., who thereupon entered upon said property, and continued in possession up to the 11th of April, 1882, when the heirs at law of the testatrix brought ejectment against him. Held, 1st. That the claim of title and possession of the husband, as tenant for life under the will, being hostile to the title of the heirs at law, was as against them adverse and exclusive.

2d. That the purchaser from the husband and nephew having

immediately taken and held possession under the conveyance to him, his possession was added or tacked to the possession of the husband, making a continuous adverse possession of more than twenty years, which by the Statute of Limitations (21 James I, ch. 16) was a flat bar to the right of the plaintiffs as heirs at law.

APPEAL from the Circuit Court for Kent county.

This was an action of ejectment, instituted on the 11th of April, 1882, by the appellants against the appellee. The case was tried upon an agreed statement of facts, which are sufficiently set forth in the opinion of the court. By consent a pro forma judgment was entered in the court below in favor of the defendant, with the right of appeal by the plaintiffs.

D. Hopper Emory and Wm. A. Hammond, for appellants.

James A. Pearce, for appellee.

ROBINSON, J., delivered the opinion of the court. This is an action of ejectment, brought by the appellants, as heirs at law of Catharine H. Wroth, to recover an undivided half interest in a tract of land, of which she died seised.

The facts are these: Mrs. Wroth died in December, 1854, leaving a paper purporting to be a will, by which she devised the farm in controversy to her husband, Peregrine Wroth, for life, with remainder in fee to her nephew, George A. Hanson.

The will was not executed in due form to pass real estate, as required by the act of 1842, ch.293, then in force because the consent of her husband, in writing, was not annexed thereto, and also because it was not executed sixty days before her death. It was admitted however to probate by the Orphans' Court of Kent county, and under it her husband, on the 1st of January, 1855, entered into possession of the property, claiming title as tenant for life, and so continued in possession until the 5th of February, 1868, when he united with the remainderman, George A. Hanson, in a sale and con

*S. C., 62 Md. 25.

veyance of the same to the appellee, and who thereupon entered upon said property and has continued in possession up to the institution of this suit.

Mrs. Wroth never had any children, and the appellants, as heirs at law, are entitled to recover, unless their right is barred by the adverse possession of the appellee and of those under whom he claims.

A great deal has been said, as to what constitutes adverse possession, and it would be a wearisome task to go and examine at length the many cases in which this great question has been considered. Prior to the Statute of 3 and 4 Will. IV, ch. 27, it was an ever-recur ring and troublesome question in England, but by that statute, passed in 1833, the doctrine of adverse possession was virtually abolished, and by it possession of any kind for twenty years was made a bar, unless there was either a payment of rent or an acknowledgment of some kind by the party in possession. The effect of the statute, says Lord Denman, in Culley v. Doe dem. Taylerson, 3 Per. & Dav. 539, is to put an end to all questions and discussions whether the possession of lands be adverse or not; and if one party has been in possession for twenty years, whether adversely or not, the claimant whose original right of entry occurred above twenty years before bringing the ejectment is barred. Nepean v. Doe dem. Knight, 2 M. & W. 911; Doe dem. Pritchard v. Jauncey, 8 C. & P. 99.

This statute is not however in force in this State, and the question of possession in this case is one to be determined by Stat. 21 Jas. I, ch. 16, which provides that no one shall make an entry into any land but within twenty years after his right shall ac

crue.

Now when the question arose whether one was barred by twenty years possession, it was determined by considering whether he had been out of possession under such circumstances as had reduced his interest to a right of entry; for if he had, then as that right of entry would be barred by the statute at the end of twenty years, the possession during the intermediate time was adverse to him. And in order to determine whether he had been out of possession under such circumstances as reduced his estate to a right of entry, it was necessary to inquire in what manner the person who had been in possession during the time held. If he held in a character inconsistent with and hostile to the title of the claimant to the freehold, the possession was adverse. 2 Smith's Lead. Cas. 531; Nepean v. Doe dem. Knight. 2 M. & W. 910; Taylor ex dem. Atkyns v. Horde, 1 Burr. 60.

"Twenty years adverse possession, says Lord Mansfield, in Taylor v. Horde, is a positive title to the defendant, it is not a bar to the action or remedy of the plaintiff only, but takes away his right of possession."

The question then of adversary possession in this case resolves itself into this: was the possession of Doctor Wroth, under whom the appellee claims, inconsistent with and hostile to the title of the appellauts as heirs at law? And in regard to this question there ought not, it seems to us, to be any doubt. During the life-time of his wife he received, it is admitted, the rents and profits of the farm in controversy. To these he was entitled by virtue of his marital rights. Upon her death, this right ceased. He was not tenant by the curtesy, because his wife never had any children. He was not a tenant by sufferance, because an estate at sufferance is where one comes into possession by lawful title, but keeps it afterward without any title at all. Or as Lord Coke says, "one who originally comes in by right, but continues by wrong." It is a tenancy founded originally on contract and

agreement, as a lessee for years, who continues in possession after the expiration of his term, and without a renewal of the lease, or a tenant at will, who holds over after the death or alienation of the lessor, or a tenaut per autre vie, who remains in possession after the death of the cestui que vie. Coke on Litt. 57 b.

After the death of his wife, Doctor Wroth took possession claiming a life estate under her will. His claim of title was inconsistent with and hostile to the title of the appellants as heirs at law. The property was a farm, under inclosure and under cultivation; his possession was actual, visible, and according to all the authorities, adverse to the title of the lawful

owner.

But then it is argued, to constitute adverse possessession one must claim the entire estate, or claim to the exclusion of all other rights. In one sense this is true. Possession will not be adverse if it be held under or subservient to higher title,

nor if it be consistent with the interest or estate of the claimant; for instance, where

the possession of one is the possession of the other, or where the estate of one in possession and that of the claimant form different parts of one and the same estate. The mere entry and possession of one tenant in common, or joint tenant, or coparcener, will not be adverse to the co-tenant, because the possession of one is the possession of the other. To constitute adverse possession in such cases, there must be an ouster, an entry and possession, hostile to the title of the cotenant. Nor will the possession of a tenant for years, or tenant for life, be adverse to the reversioner or heir in remainder.

The decisions in Smith v. Burtis, 9 Johns. 180; Howard v. Howard, 17 Barb. 667; Doe dem. Human v. Pettett, 5 Barn. & Ald. 223; Dean v. Brown, 23 Md. 16; Bedell v. Shaw, 59 N. Y. 46, were decided upon these well-settled principles.

In this case however Doctor Wroth entered into possession, claiming a life estate under the will, the remainder being devised to another person. The estate claimed by him was a freehold, and as there could only be one possession or seisin of the same estate at the same time, his possession inured to the benefit of the remainderman. His possession was in law the possession of the remainderman, and as such it represented the entire estate, his own estate for life, and the estate of George A. Hanson in remainder. And his claim of title and possession being hostile to the title of the appellants as heirs at law, his possession was as against them, adverse and exclusive. The will was, it is true, invalid, but Doctor Wroth having entered into possession, claiming title under it, he would be estopped from denying the title of the remainderman claiming under the same instrument. This was decided in Board v. Board, L. R., 9 Q. B. 48; S. C., 7 Eng. Rep. 111. In that case, a tenant by the curtesy undertook to devise the curtesy estate to his daughter for life, with remainder to his grandson. Upon the death of the testator, the daughter entered into possession, and having been in possession for twenty years, sold and conveyed the property in fee to the defendant. In the meantime the grandson sold his reversionary right to the plaintiff, and upon the death of the daughter, he brought an action of ejectment, and it was held that the daughter having entered under the will, the defendant, claiming under her, was estopped as against all those in remainder, from disputing the validity of the will, and that the plaintiff was entitled to recover.

Mellor J., said: "The only person who could dispute the possession of Rebecca, under the will, was the heir at law. He never disputed the possession, and his title to the estate is barred by the operation of the

statute of limitations. A person cannot say that a will is valid to enable him to take a benefit under it, but invalid so far as regards the interests of those in remainder, who claim under the same will."

This case was decided, it is true, after the passage of the Stat. of 3 & 4Will. IV, but the claim of title and possession by the daughter, being hostile and inconsistent with the title of the heir at law, her possession was adverse under the Stat. 21 Jas. I, as against the lawful title. And being adverse, the heir at law must bring his action within twenty years, or his title will be barred by the statute of limitations. It is better, says the law, that the negligent owner who has omitted to assert his right within the time prescribed by the statute, should lose his rights than one should be disturbed in his possession, and harassed by stale demands after the proof on which his title rests may have been lost or destroyed. But whatever may be the reasons or the policy of the law, twenty years adverse possession is a bar to the title, without regard to the original right of the parties.

The possession being adverse and exclusive in this case, the only remaining question is, whether it has been continuous for twenty years? And this depends upon whether the possession of Doctor Wroth can be united, or in other words tacked to the possession of the appellee.

Now the possession of several distinct occupants of land between whom no privity exists cannot, it is true, be united to make up the statutory period, for the reason, if one quits or abandons the possession, the owner will be deemed to be in the constructive possession of the property by reason of his title. The separ ate successive disseisins in such cases do not aid each other, and their several possessions cannot therefore be tacked, so as to make a continuity of possession.

But we take it to be well settled that where there is a privity of estate between the successive parties in possession, then the possession of such parties may be united so as to make the twenty years required by the statute. And it is equally well settled that such privity may be created by a sale and conveyance and possession under it, as well as by descent. As was said by Tilghman, C. J., in Overfield v. Christie, 7 S. & R. 177: "One who enters upon the land of another and continues to reside on it, acquires something which he may transfer by deed as well as by descent, and if the possession of such person, and others claiming under him, added together, amounts to the time limited by the act of limitations, and was adverse to him who had the legal title, the act is a bar to a recovery." Angell on Lim. 414, 420; Wood on Lim., § 271; Tyler on Eject. 910.

In this case there was an adverse and exclusive possession of the farm in question by Doctor Wroth for thirteen years. He then united with George A. Hanson, the remainderman, in a sale and conveyance to the appellee, who immediately entered and has continued in possession up to the present time; the possession of the appellee, thus added or tacked to the possession of Doctor Wroth, makes a continuous adverse possession of twenty-seven years. The possession under such circumstances is by the statute of limitations a flat bar to the right of the appellants as heirs at law. The judgment below must therefore be affirmed.

Judgment affirmed.

[130 Mass. 121; 119 id. 414; 46 Penn. St. 385; 2 Law, 540; 79 III. 233; 9 Eng. 832.]

PARTNERSHIP-TRUSTEE PROCESS-SET-OFF

-DEBT SECURED.

MAINE SUPREME JUDICIAL COURT, FEB. 23, 1884.

DONNELL V. PORTLAND AND OGDENSBURG R. Co., CLARK AND TRUSTEE.*

At the time of the service of the writ on the alleged trustees, they as a firm were indebted to the principal defendant railroad company in the sum of $607.58 for freight. Prior to such service the railroad company gave its note for the payment of $550, amply secured, to one of the members of the firm, payable after such service, but before the disclosure At maturity of the note, by agreement between the payeeand the railroad company, its amount was s credited upon the firm's indebtedness to the company; and the note, with the collateral security, was surrendered to the company. Held, that the trustees should be charged for the whole amount of their indebtedness to the company, without deducting the amount of the note.

ON exceptions from the Superior Court. The facts

are stated in the head-note and opinion of the

court.

W. L. Putnam, for plaintiff.

Haskell & Woodman, for trustees.

VIRGIN, J. The disclosure of Clark shows that the two supposed trustees were and are in fact the sole members of a partnership, although they are not described as such in the writ. Service however was properly made on each of them. Hutchinson v. Eddy, 29 Me. 91; Warner v. Perkins, 8 Cush. 518.

The disclosure also contains a statement of the accounts between the firm and the principal defendant, from which there appeared at the date of the service of the writ a balance of $607.58 in favor of the latter. The supposed trustees were therefore properly charged for that sum by the court below, unless they should have been allowed to deduct the amount of the note given by the principal defendant to Clark individually.

The note was given prior to the service of the writ on the supposed trustees, although it was not then payable; but it matured and was credited on the account by the parties before the disclosure. If it had been due when the writ was served, and Clark had retained possession of it, it might have been set off pro tanto against the firm's indebtedness; for each partner, being liable for his partnership's debts, may discharge them with his individual funds if he so elect. Robinson v. Furbush, 34 Me. 509.

Nor would the mere fact that the note was not due when service was made necessarily prevent the set-off, provided it was given prior thereto, and was payable before the disclosure. To be sure, it is generally true that a trustee's liability depends on the state of facts as it existed when the process was served on him. But this rule is not universally applicable. Some apparent liability may be necessary at that time; but it may be materially modified and even wholly discharged by subsequent events on the score of equitable set-off (Marrett v. Equitable Ins. Co., 54 Me. 537, 539; Smith v. Stearns, 19 Pick. 20, 23), where the exception is variously illustrated by Shaw, C. J.

Moreover it has been held that where a supposed trustee, when the process was served on him, was indebted to the principal defendant, but he had previously at the request and for the benefit of the defendant, indorsed without indemnity the latter's note, which, the defendant having failed, he was legally compelled to pay the trustee might be allowed to set off the sum paid on

*To appear in 76 Maine Reports, 33.

Boston

the note against the apparent indebtedness. T. & S. F. Co. v. Mortimer, 7 Pick. 166. And the reason assigned was that if the principal had sued the trustee, although the latter's claim not being then due could not be filed in set-off, yet if at any time before judgment, the plaintiff in the suit had become indebted to him for money paid on a liability incurred before the suit, which the plaintiff had failed and was unable to pay, the court would grant him a continuance, that he might bring a cross-action so as to have a set-off of judgments or executions, unless there should appear some special cause for refusing such relief. Were it otherwise a trustee's claims might be prejudiced by being made a party, and having them drawn in to be incidentally settled in a suit between other persons. Hathaway v. Russell, 16 Mass. 476.

This power of setting off judgments has long been practiced by courts. It depends on no positive statutory provision, but is said to rest upon their jurisdiction over suitors and their general superintendence of proceedings before them. Mitchell v. Oldfield, 4 T. R. 123; Makepeace v. Coates, 8 Mass. 451; Pierce v. Bent, 69 Me. 381, and numerous cases there cited. The ap plication of the doctrine not being founded on any statute or any fixed imperative rule of common law, is addressed to the discretion of courts, which they will exercise on a careful consideration of all the facts and circumstances involved in order to promote substantial justice and protect the rights of all parties. Chipman v. Fowle, 130 Mass. 352. Thus in Boston T. & S. F. Co. v. Mortimer, supra, Parker, C. J., said: "This decision will not reach the case of a liability incurred after the service of tho writ, or where the effect of the liability may be avoided by reasonable diligence on the part of the person liable to precure payment of the debt by the principal; but we confine it to such a case as we have before us, in which there was actual liability before the service of the writ, and an actual payment by necessity before the answer."

In the case at bar we perceive no equitable considerations which should induce a court, seeking to protect the rights of all parties, to authorize these trustees to deduct from their indebtedness to the company the amount of the note given by the latter to Clark. The original note was given for a loan to be sure; but it had been repeatedly renewed and it was amply secured. The payment of this note or any of its predecessors could have been enforced at any time; and hence there is no special reason for allowing the set-off, especially since such a proceeding would entirely ignore the rights of the plaintiff. Such a result would become a precedent for a corporation whose managers might be disposed thereto, to secure from foreign attachment all moneys due from persons doing business over its road, and thereby without violating the law delay its creditors.

If Clark has surrendered his note and security to the corporation, he did it voluntarily and with unnecessary promptness. Had he waited until his rights had been legally determined on the writ to which he was made a party, his interests would have been more satisfactorily protected perhaps than they seem to have been sua motu. Parker v. Danforth, 16 Mass. 300, 305.

We are aware that the drift of this opinion is in conflict with that in Ingalls v. Dennett, 6 Me. 79; for since the provisions of Rev. Stat., ch. 86, § 64, went into effect we do not think a trustee should be charged on a state of facts stated in that case. Marrett v. Equitable Ins. Co., 54 Me. 537, 540

Exceptions overruled.

Appleton, C. J., Walton, Peters, Libbey and Symonds, JJ., concurred.

NEW YORK COURT OF APPEALS ABSTRACT.

DEED-DELIVERY — VOLUNTARY SETTLEMENT.— (1) In cases of voluntary settlements courts have gone great lengths in sustaining the validity of deeds without affirmative proof of any delivery, and the earlier cases hold that a voluntary settlement fairly made is binding in equity, unless there is clear and decisive proof that the grantor never parted or intended to part with possession of the deed, and that if he retains it, there must be other facts to show that it was not intended to be absolute. 1 Johns. Ch. 256; Barlow v. Heneage, Prec. in Ch. 210; Clavering v. Clavering, 2 Vern. 473; affirmed, 7 Bro. P. C. 410; Lady Hudson's case, 2 Vern. 476; Johnson v. Smith, 1 Ves. Sen. 314; Exton v. Scott, 6 Sim. 31, and other cases. In all these cases the instrument was shown to have been retained by the grantor until his death, and there were no circumstances tending to show a delivery. This court, in Fisher v. Hall, 41 N. Y. 416, declined to follow those cases in so far as they wholly dispensed with any evidence of delivery. But the delivery of a deed, like any other fact, may be inferred from circumstances, and the rule as laid down by Chancellor Kent, in 4 Kent Com. 456, though frequently adverted to and commented upon in adjudged cases, I do not find even to have been questioned. The learned commentator says: "If both parties be present, and the usual formalities of execution take place, and the contract is to all appearances consummated without any conditions or qualifications annexed, it is a complete and valid deed, notwithstanding it be left in the custody of the grantor." This rule was applied in the case of Scrugham v. Wood, 15 Wend. 545, where it was held that a deed of marriage settlement which was read and signed by both grantor and the trustees. and acknowledged as their deed before an officer authorized to take acknowledgments, was a complete and valid deed, notwithstanding the witnesses present at its execution united in testifying that there was no formal delivery of it, and the deed, after the death of the grantor, was found in his secretary among his private papers. Nelson, J., in delivering the opinion, observes that the grantor was much more interested in the execution and preservation of the deed than either of the trustees, and the fact of its being in his possession at his death therefore did not, under the circumstances of the case, necessarily create any presumption against the idea that a delivery was intended at the time of its execution. In the present case, as before observed, there is no evidence that the deed remained in the possession of the grantor. When first produced it was iu the possession of one of the cestuis que trustent. It was signed and sealed by both grantor and grantee. In Fisher v. Hill, 41 N. Y. 416, the facts were entirely different. The grantee was not present at the execution of the deed. He did not execute or acknowledge it, but was ignorant of its execution till long after the death of the grantor, who was shown to have retained it till his death. McClean v. Button, 19 Barb. 450 more nearly resembles the present case. See also Fletcher v. Fletcher, 4 Hare, 67. (2) The delivery having been to the grantee himself, neither party would have been permitted to show, for the purpose of defeating the rights of the cestuis que trustent, that the delivery was with intent that the deed should not take effect, or that it should not take effect unless again delivered, or unless the grantor should afterward determine that it should take effect, or upon any other contingency whatever, contrary to the terms of the instrument. Worrall v. Munn, 5 N. Y. 229, 238: Lawton v. Sager, 11 Barb. 349; Arnold v. Patrick, 6 Paige, 310, 315. Wallace v. Berdell. Opinion by Rapallo, J. [Decided Oct. 7, 1884.]

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