
    Raquette Falls Land Company, Appellant, v. George Buyce, Respondent.
    
      Seed of gospel and school lots by the town superintendent of schools — when it is not effective, in the absence ofpi'oof of the advice and consent of the inhabitants of the town, or of a recital thereof.
    
    In 1850 the town superintendent of common schools in the several towns had power by statute (R. S. pt. 1, chap. 15, tit. 4, § 3; Laws of 1846, chap. 186) to sell, “with the advice and consent of the inhabitants of the town in town-meeting assembled,” the gospel and school lots of the town.
    In that year a deed of one of such lots located in the town of Gilman, Hamilton county, was executed by one Holmes. The deed was a warranty deed in the ordinary form used by individuals. The premises thereof recited that it was made by “Lyman Holmes, town superintendent of common schools of the town of Gilman, in the county of Hamilton, and State of New York,” but it was not in form by, nor was it signed by Holmes as, such superintendent.
    It did not refer to any authority, statutory or otherwise, for its execution, nor did it contain any recital as to obtaining the advice and consent of the inhabitants of the town of Gilman.
    
      Eild, that the deed did not raise a presumption that the original title of the People of the State of New York was conveyed thereby.
    Appeal by the plaintiff, Raquette Falls Land Company, from a judgment of the Supreme Court in favor of the defendant, entered in' the office of the clerk of the county of Hamilton on the 3d day of September, 1904, upon the decision of the court, rendered after a trial before the' court without a jury at the Fulton Trial Term, dismissing the plaintiff’s complaint.
    
      George N. Ostrander, for the appellant.
    
      Andrew J. Nellis and Lee S. Aníbal, for the respondent.
   Chase, J.:

This action was brought to recover damages for the alleged cutting of certain timber on Gospel, School and Literature lots 2, 6, 7 and 8, township 1, town of Gilman, Hamilton county; also to restrain • and enjoin the defendant from removing the timber cut by him and from further cutting timber thereon. It appears that the defendant did cut certain timber on Gospel and School lot 8 in said township. • Said lot is wild, forest land and the rights of the parties therein depend upon their respective titles by deed. The plaintiff claims title to said lot under a deed dated the 15th day of July, 1856, given in the name of the People of the State of New York to the Sacketts Harbor and Saratoga Railroad Company, which deed bears the great seal of the State of New York and is signed by the Governor of said State. Special authority for such deed is claimed by virtue of chapter 207 of the Laws of 1848 and chapter 122 of the Laws of 1855. The defendant claims title to said lot under a deed dated December 23, 1850,- between ‘’‘Lyman Holmes, town'superintendent' of common schools of the town of Gilman in the county of Hamilton and State of New York of the first part, and Lemuel B. Underwood * * * of the second part.” •

When the deed by said Holmes was offered in evidence the plaintiff objected thereto, among other things, “ That the provisions of the statute clothing the officials with power to sell have not been shown here. It is incumbent upon the defendant to show a compliance with the provisions of the statute authorizing the sale of the lands by the superintendent of schools.” The objections were overruled and the plaintiff excepted and the deed was received in-evidence. Plaintiff’s complaint was dismissed.

. "The trial court held that by said deed of Holmes the title of the People of the State to said lot was divested prior to the execution of said deed by the Governor as hereinbefore stated.

If the court was in error in receiving said deed in evidence and in holding that without other evidence it established that the title of the. People of the State to said lot was by it divested, then we think that without now considering the other questions involved we should direct a new tidal of the action.

The title to the gospel, school and literature lands remains in the People of the State notwithstanding such designation. The lots in question are part of lands marked by the Surveyor-General as “ Gospel and Schools ” and “ For promoting Literature,” pursuant to chapter 67 of the Laws of 1786.

It was provided by section 11 of title 7 of-chapter 11 of part 1 of the Revised Statutes (1 R. S. 362, § 11; 1 R. S. [3d ed.] 413, § 13) that the electors of each town in this State having lands assigned to it for the support of the gospel and schools or for the support of either shall at their annual town-meetings elect three persons being electors of such town as trustees to take charge of such lands.” Such trustees besides the ordinary powers of a corporation were given power and it was made their duty, among other things, to sell the gospel and school lots “ with the advice and consent of the inhabitants of the town in town-meeting assembled for such price and upon such terms of credit as shall appear to them most advantageous.” (R. S. pt. 1, chap. 15, tit. 4, § 3 ; 1 R. S. 498, § 3; 1 R. S. [3d ed.] 612, § 3.)

By chapter 186 of the Laws of 1846 it was provided: The office of trustees of the gospel and school lots in the several towns in this State is hereby abolished and the powers and duties now by law conferred and imposed upon said trustees shall hereafter be exercised by the town superintendent of common schools.” The statutes quoted were in force at the time of the execution of the deed under which the defendant claims title to the lot on which the timber was cut.

The gospel and school lots were reserved for the benefit of the towns, and the authority of the school superintendent to sell such lots was made dependent upon the advice and consent of the inhabitants of the town in town meeting assembled.

In De Lancey v. Piepgras (138 N. Y. 26, 42) the court, in considering a deed given by the Comptroller, which recited a compliance with alb the provisions of law relating thereto and which was regular and valid upon its face, say: The rule is firmly established that the issuing of a patent by the officers of a State, who have authority to issue it, upon compliance with certain conditions, is always presumptive evidence of itself that the previous proceedings liave been regular and that all the prescribed preliminary steps have been taken; and the recitals in it are evidence against one who claims under the original owner by a subsequent conveyance, or does not pretend to claim under him at. all, and the grant cab not be impeached collaterally.”. -

In Sheets v. Selden’s Lessee (69 U. S. [2 Wall.] 177) the court say: It may he stated generally that when a deed is executed, or á contract- is made on behalf of a State by a public1 officer, duly authorized, and this fact appears upon the'face of the instrument, it is the deed or contract of the State, notwithstanding that the officer may be described as one of the parties and may have affixed his individual name and'seal.” ' , .

The ,deed from Holmes is a warranty deed in the ordinary form then used by individuals. It is not in form by, and.it is not signed as town superintendent of common schools, and there is nothing to show that the words “town' superintendent of common school's of the town of .Gilman” are not merely descriptive of the person of the grantor. It does pot purport to be a patent conveying the title of.the People of tlie State of New York., It does not refer to any claimed statutory or other authority for the execution "and 'delivery of the deed; neither, does it contain any recitals relating to the advice and consent of the inhabitants of the town of Gilman in town meeting assembled or to any otper matter. There is nothing in the deed, therefore, upon which to base a presumption that the original title of the People of the State of New York was-conveyed thereby. The evidence before .the court was not sufficient to justify the conclusion that the original and ultimate property of the People Of the State of New York in the lot in question had been conveyed prior to the execution of the deed tinder which th'e plaintiff claims.'

The judgment should be- reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment reversed on' law and facts and new trial granted, with costs to appellant to abide event.  