
    Jackson, ex dem. J. G. Klock and G. G. Klock and others, against Hudson.
    ALBANY,
    August, 1808.
    ™rh""possessl°^ °f atrao* native Indians, V^idity^of a patent from Lgíhílfndío white persons, without the consent of the kgality of such a patent is apowhkh^cannot arise °r b.e (*1S" suit between citi°zens.U1' The possession of the native In-dims, is not such an adverse possession, as to render subtfonTby th'epatentees, void, of maintenance. nt in 'eject' ment sets up an tle^it^must be aPrescnt, subsisting and operative title, p^ÚmptiónisI that such title in a stranger has been extinguished. An outstanding title, in certain Indians of the Mohawk tribe, was held to be extinguished, as the title had never been claimed or asserted, and the tribe or nation had become extinct.
    Where a deed may enure several ways, the grantee shall have his election which way to take it. An exception in a deed shall be taken most favourably to the grantee,, and if it be not set down or described with certainty, the grantee shall have the benefit which may arise from such defect.
    THIS was an action of ejectment, for lands in Montgomery county. The cause was tried at the Montgomery circuit, before Mr. Justice Van Ness, in October, 1807.
    The plaintiff gave in evidence a lease from George Klock, the father of the lessors of the plaintiff, to Jacob Forbush and Baftholomexv Forbush, dated the 6th Septemher, 1783, for a farm, known by lots no. 7 and 8. on the ’ . •' . Mohawk river, at Conajohary, “ containing 600 acres of low and cribble bush lands,” for the term of three years, at a yearly rent of 30 skipples of wheat, with clause of reentry for the non-payment of the rent, &c.
    The plaintiff then proved by Peter P. Schuyler, aged 60 years, that the lessees were in possession of the premises in question under that lease, and lived there about eight years after, and that they lived on the land a year t o . . , . . or two previous to the lease, before which they said that the land belonged to the Indians, and was called Indian ° _ _ land ; that they recognised no particular title when they entered, and that they considered the land as vacant; that the Klocks claimed the land, and threatened to turn them out ; that the Indians had been in the exclusive possession of the Conajohary Castle tract, (of which the premises in question are parcel,) as long as the witness could remember, and so continued until they went to Canada, in the revolutionary war : that after the Indians had so departed) John Peter Revershanwho was married to an Indian squaw, claimed the whole tract, in right of his wife ; that Jacob Forbush, one of the lessors of the plaintiff, first took possession of another piece of land in the Conajohary Castle tract, and improved it for some time, when the Indians ousted him, and told him to go and take other lands; that Forbush then entered on part of the premises, and soon after took the lease abovementioned ; that no person claimed any adverse interest in the Conajohary Castle tract, during the possession thereof by the Indians; that George Klock lived- about four miles from the said tract; that the Conajohary Castle tract was very-valuable, and contained a great portion of low land : that the Forbushes admitted that they paid rent to Klock under the lease ; that Klock claimed the whole Conajohary Castle tract, at the time of giving the lease, and died in 1789 or 1790 ; that the two lessors of the plaintiff named, pretended to claim the whole tract after Klock’s death, and that the lessors of the plaintiff are his heirs at law.
    The plaintiff having here rested his cause, the defendant gave in evidence ;
    1. The letters patent, dated the 13th November, 1731, to A. Van Horne, W. Provost, and C. Livingston, (three of the colony council) and Mary Burnet, daughter of governor Burnet, for 8,000 acres of land, including the Conajohary Castle tract.
    2. A release and quit-claim, dated 22d November, 1763, from P. Livingston, W. Livingston, G. Klock, and three other's, styling themselves part owners of the tract mentioned in the said letters patent, in consideration of five shillings, to three Indians,by name, in fee, of a tract of land described by metes and bounds, in trust for them, and all the rest of the native Indians, belonging to the Conajohary Castle, and their heirs.
    3. Authentic copies of the map and field book of the partition of the patent, made the 9th October, 1764, by which the Conajohary Castle tract was set off into an allotment by itself, and the rest of the patent laid out into five allotments. The 1st, 2d, 3d, and 4th allotments cont-ainedeach about 800 acres, and were divided into eight lots each, and the 5th allotment divided into four lots of 200 acres each. The Conajohary Castle tract formed the 6th allotment, and was laid out into four lots of 850 acres each, and is described in the field book as in the possession of the Mohawk Indians of the Conajohary Castle, by virtue of a deed to them in fee executed, by Philip Livingston, William Livingston, Walter Rutherford, and John Duncan ; being four of the six persons, who executed the release of 1773. The field book refers generally to the deed. No other proceedings relative to the partition were produced.
    4. A release from George Klock to Jellis Fonda, dated the 27th January, 1767, for several parcels of land in the five first allotments, and a specific fourth part of lot no. 1. in the 6th allotment. This release refers to the partition, and the map and field book thereof,
    5. A release from George Klock to Johannes Luke, in 1784, for the residue of lot no. 1. in the first allotment.
    The defendant further proved, by P. P. Schuyler, that in 1790 or 1791, the two lessors of the plaintiff named, gave him and the Forbushes, separate agreements,in writing, ' whereby they stipulated to give separate leases for 21 years, of their lands within the Conajohary Castle tract, whenever they the said lessors of the plaintiff, should obtain a grant or confirmation for the same, from the state. These agreements were afterwards given up.
    It was next proved, by Christian Nellis, that shortly after the death of George Klock, the two lessors of the plaintiff named, attempted to purchase of certain Indians, the ■ lands within the Conajohary Castle tract, though informed that the Indians, with whom they were contracting, did not belong to the Conajohary Castle.
    
    The defendant then read a paper writing, signed and sealed by the two lessors named, and Michael Kirn, relative to a part of the Conajohary Castle tract» It was dated the 28th September, 1790, and was a covenant with Kirn; that as soon as they, the Klocks, should obtain a patent or confirmation for the lands leased by them of the Jndian^ in Conajohary Castle, they would execute a lease of the same to Kirn, for 21 years, ata rent of Si. a year.
    Two other papers were read relative to other parts of the said tract, of a similar import, which were signed by the two lessors of the plaintiff named, the one dated the 29th September, 1790, and the other, the 10th January, 1791.
    It was next proved, by Christian Donstader, who was 90 years of age, that he had known the Conajohary Castle from his youth; that the Indians always had the exclusive possession of the Conajohary Castle tract, until they went away in the revolutionary war; that several white persons, at different times, improved part of the tract under the Indians ; that shortly after the French war, George Klock made a purchase of some Squaws and Indian children, of a part of the Conajohary Castle tract, situated below the premises.
    The defendant then gave in evidence a deed in fee, from the executors of Jellis Fonda to him, for a part of the premises, dated the 9th May, 1792, and a deed from C. P. Tates, to him in fee, dated 2d January, 1792, for the residue of the premises, containing in the whole 102 acres.
    
      Hendrick Frey testified, that the lands in the first five allotments were held according to the partition of 1764, and that he, in 1762 or 1763, by agreement between the Conajohary Indians and the proprietors, under the said patent, ran a division between the Conajohary Castle tract, and the residue of the patent, corresponding with that adopted in the partition of 1764, which was uniformly adhered to by all parties, until the Indians went away ; that when the commissioners commenced the survey of the Conajohary Castle tract, they were opposed by the Indians.
    
    The plaintiff then gave in evidence ;
    
    1. A release from Provost, to P. Livingston, dated the 7th November, 1734, for one quarter of the patent, fol-the consideration of 100/.
    
      2. The will of P. Livingston, dated the 15th July 1748, by which he devised the estate in this patent to his eight children, in fee.
    3. A deed from the devisees to Jellis Fonda and George Klock, dated 3d February, 1761, for the consideration 2,4<00/. for ene half of the said patent, excepting 1,000 acres before conveyed to David Schuyler.
    
    
      4. A deed, in fee, from D. Van Horne and S. Van Horne, the heirs of A. Van Horne, one of the patentees to Jellis Fonda and George Klock, dated 3d February, 1761, for the consideration of 1,200/. for one fourth of the patent, excepting 500 acres before conveyed to David Schuyler.
    
    It was admitted, that the premises were in lot no. 2. of the 6th allotment, as laid down in the map and field book, abovementioned.
    
      Wilhelmus Dillenback, aged 90 years, who was called on the part of the plaintiff, proved, that soon after the French war, he witnessed a deed executed by several Indians, to Jellis Fonda and George Klock. The plaintiff’s counsel refused to produce this deed, though it was called for, in pursuance of a notice to that purpose.
    The jury, agreeably to the charge of the judge, gave a verdict for the plaintiff, for three-eighths of the premises.
    A motion was made at the last February term, to set aside the verdict, as against law and evidence.
    
      Cady and Van Vechten, for the defendant.
    The verdict in this case is for the undivided three-eighth parts of the tract. If it can be shown that the plaintiff’s right, if any, was divided, or that if he once had a title, he has parted with it, the verdict must be set aside. George Klock was not one of the original patentees, in 1731. J.£ he had any title, it must have been under the conveyance in 1761. But, at that time, the Indians were in the actual and exclusive possession of the tract. The testimony of Schuyler fully proves, that they had the adverse and exclusive possession of the land. It was not a temporary possession, for the sake of hunting or the chase, but a permanent possession for the purposes of agriculture ; they made leases and received rent. The deed, therefore, of 1761, was void, for a person out of possession cannot - convey a valid title. The release in 1763, from Livingston, George Klock, and others, to three Indians only, could not give a title ; and if it did, then Klock had parted with "the title he held.
    The conduct of the lessors of the plaintiff, from 1761 to the commencement of the present action, has been in direct hostility to the title now set" up. For though Klock pretended to hold the whole tract under the deed, yet, after the French war, he purchased of some of the Indians.
    
    In 1790, or 1791, two of the lessors of the plaintiff, sons of George Klock, agreed with M. Kirn, to give him a lease as soon as they obtained a grant or confirmation of their title from the state. If they had a title, by descent or purchase, why should they desire a grant from the state ? So impressed were they with the defect of their title, that they endeavoured to obtain deeds from any of the Indians who could be induced to execute a conveyance.
    
      j. and B. Forbush never took possession under the title of 1761." They first entered into possession under the Indians; and, by their direction,left their first possession, and went to another part of the tract, thereby recognising the Indian title. They afterwards took a lease from Klock ; but it is evident, that this was done merely to prote'ct themselves from being again dispossessed by the Indians, and was, in fact, collusive. All the acts of Fonda and Klock are not only in disaffirmance of the title under which the plaintiff claims, but show that they uniformly claimed to hold under the Indians. They not only recognised the Indian title ; but the Indians themselves asserted their right, by resisting the surveyors, who attempted to run the lines of the tract.
    The deed of partition in Í 764 states, that the Indians were in possession of the Castle tract, by virtue of a release from. Livingston and three others. Though Klock is not there named, it must be presumed, that he had. released to Livingston, and it is admitted, that a release from Fonda was to be presumed. This presumption is confirmed by the concurrent acts of Klock himself, and strongly fortified by his long silence and acquiescence ; for living within three or four miles of the premises, he quietly permitted strangers to retain possession. He exercised no act of ownership until 1783, when he merely gave a lease for three years, and with covenants for quiet enjoyment, which lease was manifestly collusive and fraudulent.
    This possession has been uninterrupted and undisturbed. from 1763 to the present time. Courts, in many cases, have gone far in supporting the presumption arising from a long and undisturbed possession, or long recognition of right under a deed. It is true, that the doctrine of presumption admits, that it may be rebutted by evidence to ! ’ , , . , the contrary. But here no such evidence appears.
    Again, it appears that the representatives of P. Livingston conveyed one half of the tract, excepting 1,000 acres before conveyed to David Schuyler. And then, the heirs of Van Florne conveyed a fourth part, excepting 500 acres conveyed to Schuyler.
    
    Now, how does it appear that the deed under which the plaintiff claims, covers the residue, after deducting the two parcels belonging to Schuyler f Until these excepted parcels are first located, the deed cannot operate, or the land intended to be conveyed by it, be located. The plaintiff claiming under the indenture ought to have produced the map to which it refers.
    That there was a partition in 1764, is manifest, from the evidence, and the deed from Klock to Fonda, ia 1767, refers to and recognises the partition. If Klock, then, had any title, it was in severalty, and ought to have been deduced under the deed of partition. An undivided three-eighths could not be recovered.
    
      Hildreth, contra.
    
      Klock was in full possession front 1783 to 1789, when he died ; any right of entry, which the defendant had, was, therefore, tolled, supposing Klock to be a mere disseisor. It is said, that the deed of 1761, to Klock and Fonda, was void, on account of the adverse possession of the Indians. But they were also in possession in 1731, when the letters patent were issued, and can it be admitted that such a possession by the native Indians, is to defeat a patent issued by the government ?
    The wandering and unsettled life of the Indians is wholly inconsistent with the idea of a permanent and adverse possession. The manner in which they occupied the land, cannot produce that kind of adverse possession, which is intended by the common law, and which the statute relative to maintenance had in view. The plaintiffs have produced sufficient evidence of a possessory title to maintain the action. It is true, that if the defendant can show a subsisting title out of the lessors of the plaintiff, they cannot recover; but this must be an actually subsisting title, connected with a possession within 20 years. Merely to show that there has been a tide once existing in some other person, is not sufficient. But the lessors of the plaintiff have produced a regular paper title, sufficient to enable them to recover. If Fonda and Klock were tenants in common, the entry of one is the entry of both, and such entry Will be according to the title. Klock had a right to locate the parcels conveyed to D. Schuyler, as he pleased, since there was no specific location mentioned in the exception of them in the deeds. It is objected, that there was no act of ownership from 1763 to 1783 ; but it is well known that the Indians were powerful, and it would have been the greatest rashness and folly for Klock to attempt to assert his rights against them. After the Indians had gone, and peace was restored, he entered and took possession, and remained in possession until his death.
    
      
       1 Johns. 159.
    
    
      
       12 Co 5. Bedell's case. Cowper, 216, 217. 597. 2 W. Black, 1228. 2 Caines, 169. 382. 1 Caines, 84.
    
    
      
      
        Buller's N. P. 110.
    
   Kent, Ch. J.

delivered the opinion’of the court. The lessors of the plaintiff have made out the following paper title to the premises.

1. A patent from government in the year 1731, for 8,000 acres of land, and which included the Conajohary Castle tract, of which the premises in question are a part.

2. A release from one of the four patentees, in the year 1734, to Philip Livingston, another of the patentees, for his one-fourth part of the tract. This release invested Livingston with a moiety of the lands.

3. The will of Livingston in the year 1748, by which he devised his estate in the patent, to his. eight children, in fee.

4. A .deed from the devisees, in the year 1761, to Jellis Fonda and George Klock, for a moiety of the same patent, excepting 1,000 acres before conveyed to David Schuyler. ,

5. A deed from the heirs of Van Horne, another of the patentees, in the same year (1761) to Fonda and Klock, for a fourth part of the patent, excepting 500 acres before conveyed to David Schuyler.

These several conveyances invested George Klock, the father of the lessors of the plaintiff, with the title to an undivided fourth part and an undivided eighth part of lot no. 2. in the Conajohary Castle tract, (being the premises in dispute) provided the portions of land previously conveyed to Schuyler are located in some other part of the tract, and the fourth and the eighth parts" amount to three-eighths of the premises, or the quantity of land recovered by the verdict. The lessors of the plaintiff were proved to be the heirs at law of Klock ; and this title, so deduced, is prima facie evidence of a good title to the premises, to the extent of the recovery. We are next to examine the several objections which the defendant has raised to its validity.

He has not set up any title in himself under the patent,' except it be a deed from the executors of Fonda in the year 1792, for a part of the premises, and a deed' from C. P. Yates, in the same year, for the residue of the premises. These deeds were given only seven years before the commencement of the present suit. The deed from conveyed no title, because, there is no evidence that he had any title, or that he was ever in possession; and the deed from the executors of Fonda (admitting that they were authorised to convey) could have operated only on the undivided share of their testator in the lot in question, as the release from Flock to Fonda, in the year 1767, was for another part of the castle tract.

The first objection raised to the plaintiff’s title is, that the Mohawk Indians of the Conajohary Castle were in possession of the premises, as well a$ of the whole Conajohary Castle tract, in the year 1761, and possessed it as their own, and, consequently, that here was ap adverse possession, which rendered the deed of 1761 inoperative.

It appeared that the Mohawk Indians had the exclusive possession of the Conajohary Castle tract, not only in 1761, but as far back as the memoiy of witnesses could reach, and one of the witnesses who testified to this effect, was 90 years of age. The Indians must, then, have been in possession of this tract when the letters patent issued, in 1731 j but this possession can never be urged against the validity of the patent, or of any of the subsequent conveyances under it. The defendant did not object to the legality of the patent, for he introduced it, and yet it must be apparent, that if the possession of the Indians was sufficient to destroy the operation of the deeds in 1761, it would be equally effectual to destroy the grant from government, in 1731. Such a suggestion, however, is inadmissible. The policy, or the abstract right of granting lands in the possession of the native Indians, without their previous consent, as original lords of the soil, is a political question with which we have at present nothing to do. It cannot arise or be discussed in a contest between two of our own citizens, neither of whom deduce any title from the Indians. What would be the effect of an Indian possession or title, in opposition to the grant under the patent, if they were to be brought into collision, is not a question before us. No such title is set up, and the Mohawk Indians have, from the time of the American war, ceased to claim or occupy the lands. The most decent presumption is, that the Conajohary Castle lands had been previously purchased by-government. At any rate, no Lidian claim exists, nor does it appear that any controversy with the Indians, as to title, has ever existed. The competency of government to grant, cannot be called in question. As to the subsequent alienations under the patent, the doctrine of the common law rendering void the sale of lands, while they are in adverse possession, does not apply. The evil of maintenance could not exist in the case. That evil consisted in selling contentions and law-suits, “ whereby right might be trodden down, and the weak oppressed.” But the Mohawk Indians of the Canajohary (or Upper Mohawk) Castle, existed and occupied the lands, in question, as part of an independent tribe. This tribe inhabited what was formerly called the Upper and Lower Mohawk Castles, and was never held amenable to the jurisdiction of our courts of justice. They possessed their lands in common as belonging to the community, and they continued to be recognised in their independent or national character by the colony government, long after the date of the patent, in 1731, and even down to the time of the American war. This historical fact could be abundantly proved, if requisite, by a reference to the public documents of the country, but it may here be assumed as a fact of public notoriety. The conveyance from one individual to another, of a title to these Indian Castles, was not, then, a conveyance of a right in action, since no action could have been sustained against the Mohawk tribet

The next point raised to destroy the effect of the plain^’s title, consisted in the allegation of an existing title out of the lessors of the plaintiff, and which was supposed to reside in these same Indians of the Conajohary Castle, or in some part of them. This Indian title was deduced from the release of Livingston in the year 1763, to three Indians by name, in trust, for them and all the Indians of the Conajohary Castle. Several objections occur to defeat the force of this objection. If a defendant sets up an outstanding title existing in a stranger, it must be a present subsisting title; it must be one that is living and operative, otherwise the presumption will be that it has become extinguished. Considering the nature of this obstacle, raised by a defendant who has no title, to defeat a plaintiff who shows a good title, the presumption as between them of an extinguishment of the outstanding title, ought to be pretty liberally indulged. It has, accordingly, been held, that the production of an old outstanding lease was not sufficient without showing a possession under it within 20 years, and that a mortgage deed would not be evidence of a subsisting title, if the mortgagee never entered, and no interest had been paid within 20 years. (Buller's N. P. 110.)

In the present case, there is good ground to presume an extinction of the Mohawks, as a separate tribe. From the time of the American war down to the trial, we hear nothing of the three trustees, or of their cestui que trusts. No person during all that lapse of time, has appeared under that release, either as a party or a reversioner, to deduce any title or claim founded upon it. The presumption is, therefore, irresistible, that it is no longer a subsisting title. But a still more decisive objection to the release is, that it does not appear ever to have been executed by Klock, notwithstanding his name is mentioned in the body of it; and no subsisting title, under the patent, is shown to have existed at that time, in the other grantors. The possession of the Indians from 1763, to the American war, was not of itself sufficient to justify an inference of a title derived from the releasors, because the Indian possession was merely a continuation of that which had existed from time immemorial. Nor can the presumption of a deed to the Indians, be deduced from the note or memorandum in the field-book of 1764, since the presumption is rebutted by the fact, that in 12 or 14 years after that time, the Indians abandoned the premises, and have never since returned. But it is evident, that the field-book memorandum alluded to the release of 1763, and it demonstrates, that George Klock never was a party to the release, for it specifies the names of the actual releasors. There was, then, never any outstanding title as against him ; and the other parties were, for aught that appears, strangers, who had no right to give a release ; and if any title passed, it is not now a subsisting one, since the Mohawk Indians of the Conajohary Castle have long since disappeared from the face of the country. Etiam periere ruina.

Another objection to the plaintiff’s title, is deduced from the exception in the deeds of 1761, of the 1,000 and of the 500 acres, previously conveyed to Schuyler. In what part of the tract, covered by the patent, these two portions of land had been previously located, does not appear. There was land sufficient to supply them, without touching any part of the premises ; and as the deeds were not explicit, Klock, the grantee, was left at liberty to locate these excepted tracts, in whatever part of the patent he pleased, as against every other person but Schuyler. Where a deed may enure in different ways, the grantee shall have his election which way to take it. An exception in a deed is always to be taken most favourably for the grantee, and if it be not set down and described, with certainty, the grantee shall have the benefit of the defect.

There is, then, no weight in this objection, and upon a fyll consideration of the case, the court are of opinion, that the motion on the part of the defendant, for a nexy trial, must be denied.

Spencer, J. having been formerly concerned as counsel in the cause, declined giving an opinion.

Rule refused.  