
    Jackson ex dem’ Seth Sherwood against Phelix Phelps.
    NEW-YORK,
    May, 1805
    By the 5th of April. 1803, the title to the military bounty lands vested in the patentees at the time of their deaths respectively, though they died previous to the 27th of March 1783.
    EJECTMENT for lands in Scifiio, in the County of Onondaga. Samuel Mitchel, the patentee from whom the lessor of the plaintiff derived title, was a soldier in the Ncio-York line, who died in October 1781, without issue, leaving a brother named Martin, and a sister called Mary. By the fifth section of the statute. “ to “ carry into effect the concurrent resolutions and acts of the legis- “ lature, for granting certain lands promised to he given as bounty “ lands, and for other purposes therein mentioned,” it was enacted “ that the letters patent, directed to be issued, shall issue in the “ names of the persons who have actually served in the line of “ the army of the United Staes, as designated in the concurrent “ resolutions, and the eleventh clause of the act passed on the ;‘llth day of May, 1784, granting the same to such persons ^ respectively, and to their respective heirs and assigns forever, “ and the lands to be granted in and by the said letters patent shall . . “ be deemed, considered, and adjudged to have vested m the re-u spective grantees and their heirs and assigns resfiecti-vely, on the “ 27th day of Marcia in the year of our Lord 1783 ; and all li grants, bargains, sales, devises, and other dispositions made by “ any of the said grantees, or their heirs or assigns, of the said “ lands so to be granted to them respectively, or any part thereof, “ between the said 27th day of March* in the year last aforesaid, “ and the date of such letters patent respectively, shall be as good “ and effectual, as if the said letters patent had been granted on “ the said 27th day of March in the year last aforesaid.’’
    Some short time after the passing of this law, the letters patent for the premises in question were granted to Samuel Mitchel. On the 21st of October, 1797, Martin Mitchel, by deed duly acknowledged and recorded, conveyed to Thomas Pa-dy, and he in the same manner, on the 10th of November, 1797, conveyed to Sherwood.
    
    By an act of the legislature, intituled “ An act granting relief to “ certain persons claiming titles to lands'in the counties of Cayuga <c and Onondaga,” it is in the first section ordained, “ that the title u to all lands heretofore granted by letters patent, to officers and u soldiers serving in the line of this state, in the army of the M United states, in the late war with Great Britain, and who died “ previous to the 27th day of March, 1783, shall be, and is deciar-M ed to have been vested in the said persons at the times of their 66 deaths respectively.”
    At the trial of the cause, which rested on one single demise from the lessor, the antecedent facts, documents, and laws, were given in evidence and relied on by the plaintiff. He also -proved the defendant to be in possession of the premises, and that at the time the deed from Pardy was executed, it was agreed between the lessor of the plaintiff and Samuel Phelps the late husband of the defendant, that Sherwood should purchase the premises from Pardy, for the benefit of himself the lessor, ■Samuel Phelps and others then in possession of the premises, commence an action to try the validity of the title derived from Samuel Mitchel, and that, on establishing it, Phelps, or his representatives, should receive from Sherwood a deed for the premises in question, at 4 dollars per annum» On this testimony the defendant moved for a non suit, which being overruled, she then produced a deed, duly recorded and acknowledged, from William I. Vredenburg to her late husband, for the very premises, dated the 6th of December, 1794,. The judge having charged in favor of the plaintiff, the jury found accordingly. A case was then made, subject to the Opjnion 0f the court on this point. Whether any title passed by the letters patent to Samuel Mitchel, the soldier, he being dead at the time they were issued.
    Wood-worth, attorney general, for the plaintiff.
    The decision of this case will depend on the acts of 1790, and 1803. It is objected that by the words of the first law, nothing could pass to the soldier who was dead. But if it was meant that only those in existence on the 27th day of March should take, the statute would never have directed that the lands should be deemed to have vested, on that day in the “ heirs" of the patentees. This word is not used merely to denote the quality of the estate, but has a further operation, to vest it in the descendants of those not then in esse. Doubts however having been entertained on this subject, the act of the 5th April 1803, was passed, which, it is presumed, puts the question at rest.
    
      JKmott, contra.
    The expressions relied on, are merely words of limitation. The legal effects of words in a statute, are the same as in a deed, and the terms used in the law referred to, were only to give a fee, not describe the persons who were to take. If a devise be to a man and his heirs, and the devisee die before the testator, the devise is gone, because there is na one to take at the death of the testator, for the heirs cannot come In. The same principle applies in this case. It is an absurdity to say, the legislature intended lands to vest in a man who was an-tecedently dead. Besides, what rule of descent is to prevail ? In 1782, the common law would govern. In ’86 we changed that system, and abolished the rights of primogeniture. In addition to these arguments, the case shews, that at the time when Par. d-y’s deed was executed, there was an adverse holding under color of title, and therefore nothing passed by it.
    
      Woodworth in reply.
    The facts and agreement in the case, do away all the argument as to adverse possession, and shew the whole proceedure was to settle the question now brought up, which has never been determined. The 8th section of the act of 1803, prescribes the rules of-descent, and establishes those of 1786. We allow, that a deyise to a man his heirs, in a deed, will not operate as a designado persone, but it may be otherwise, in a statute. Because the one conforms to the law ; the other makes it. By the law of 1803, the title is '• declared" to have vested in the persons entitled at the times of thein deaths. If so, it must descend to their heirs.
    
      
       2 Vol. Greenleaf's Ed. 333.
    
    
      
       of the 6th April, 1790.
    
   Per curiam., delivered by

Livingston, J.

In deciding this cause, it is unnecessary to enquire, whether the legislature, by its resolution of the 27th March 1783, intended to comprise within its bounty, as far as regarded the line of this state, persons not embraced by the act of congress of the 16th September 1776 ; of whether the commissioners of the land-office, in carrying its views into effect, have expounded them too liberally, by issuing letters patent to soldiers who were dead at .the time of its adoption, or whether, jf those who were the authorized agents of government, have erred in judgement, as to the proper object of gratuity, bona Jidc purchasers can now be disturbed ? Nor is it of any use to settle the operation of military grants under the act passed the 6th April 1790. It cannot be dissembled however, that were it proper, in this collateral way, to draw into question the validity of a public grant, and our examination were limited to the terms of the resolution, and the effect of the grants, as fixed by this law, very serious difficulties would occur. Whatever our feelings might be, or however strong the claims on public: benevolence, of those, whose fathers may have perished in fighting the battles of their country, we could hardly, without some violence, or indulging an improper sympathy, give to these proceedings, an interpretation as latitudiuary, as the commissioners have done. From a view of the different public acts relative to this matter, and a recurrence to the history of the times, we should perhaps, be compelled to say, that a provision was designed for such officers and soldiers only, as were living in March 1783.

But whatever doubts may have existed on these points, and on which no opinion is now intended to be given, none can reasonably be entertained, at this day, with respect to the validity of titles derived through grants to military men, who may have died at any period whatever during the British war. The legislature has, greatly to its honour declared, by an act passed the 5th April, 1803, that the title “ to all lands theretofore granted by letters patent, “ to “ officers and soldiers, serving in the line of this state, in the army of ‘‘the United States, in the late war with Great-Britain, and,wAo died ‘‘ previous to the %7th March 1783, should .be, and thereby was de- “ Glared to have been vested in the said persons, at the time of their u respective deaths." This law was passed with a full knowledge of every circumstance, the same having-been brought to public V;CW) ^y commissioners apppointed to settle the titles to this property. For, so long- since, as the year 1800, these gentlemen;, in ⅞ very able report to the governor, had exposed the mistakes, if such they were, which hail been made in a great many instan ces, of granting lands to persons who had died during the war, and the inoperative nature of all such patents. They went further ; they not only cautioned government against rendering these grants valid, but recommended the institution of an en« quiry, as preparatory to a resumption of the lands. Nor were motives of interest wanting, to allure to a measure of this kind; for, by a schedule accompanying this report, it appeared that, as far as had then come to the knowledge of the commissioners, the state would have gained in this way, neir two hundred thousand acres of land in a very valuable part of the country. The legislature however, not forgetful of the services which the patentees had rendered in establishing the independence of their country, disdained, in a moment of tranquility, ar.d when no danger impended, to listen to suggestions of interest, but \yich a generosity, not very common, and therefore the more laudable in a public body, confirmed all thes epatents without discrimination, and that by expressions so apt and strong, that neither on the argument, nor since, has the plaintiff's title appeared to me, liable to the smal-est doubt. The acts being declaratory or not, can be of no moment, as it respects these parties, although from its subject matter, as -well as expressions, it would seem more naturally to belong to the former class. As these lands belonged to the state, if the patents were void, or inoperative, (for it is not pretended they have -been granted before or since) it was competent to the legislature, to confirm and quiet tlje titles derived under them, however defective they were before. And as we do not perceive, from the facts before us, that the rights of any person, otherwise acquired, will be affected by the confirmation, we arc not bound to suppose, that such cases exist. It does not appear that Vredenburgh, who conveyed to Phelps, had any title at all. If he had, it is not pretended that he, or those under whom he claimed, derived any right from the state.

Something was said of an adverse possession in Phelps, at the timeof the execution of Panh/’s deed; but how could this be, when Phelps had agreed, that the purchase should be made, for the express purpose of trying- the validity of this title r Surely stronger evidence cannot be required that Phelps did not hold adversely to Pardy, notwithstanding his deed from Vredenburgh, than his willingness to take under the former, at a stipulated price, so soon as his title should be established. Would it not be monstrous, to let him now set up his own possession in defiance of the plain understanding of both parties, to defeat the tecoverv of Sherwood?

Nor is it important, whether the act of April 1803, passed prior, or subsequent to bringing this éuit. Rather than put the .plaintiff, who lias now a perfect title to a new action, because it be doúbtful whether such were the case when this suit was commenced, and for no other purpose than to prevent the defendant’s liability to cost's, 1 prefer considering the law as relating back to the lime of issuing the patent, which comports also with the intention of the legislature. The Postea must be delivered to the plaintiff.

Kent, C. J.

Upon this case the two following questions have been made. 1st, Whether there was an adverse possession of the premises, at the tithe of giving the deed from Mitchel to Pardy, so as to render the same void. 2d, Whether the original grant from the st&te to Mitchel, was a sufficient basis to support the plaintiff’s title. •

1-It appears that a deed of the premises was executed by William I. Vredenburgh to Samuel Phelps on the 6th December 1794, “and although it is not stated when Phelps took post session under that deed, yet we find him in possession on the 10th of Abvnnber, 1797, only a few days subsequent to the deed to Pardy. From this, it might be presumed that h'e was in posses-sión as early, at least, as the time of the sale tb Pardy, and if so, his possession was under color of title, adverse to that of Mitchch But, notwithstanding .this might have beeii the case, I think that Phelps concluded himself from making that objection- When the lessor of the plaintiff purchased from Pardy it was with the knowledge and assent of Phelps, and he was eventually to be benefited by it, on the terms stated in his agreement. It was agreed between them that the lessor of the plaintiff should purchase, and bring a suit thereupon, to try the validity of. the title derived through Pardy. This was a waiver of the objection now ket up, for the object of the agreement Was to try the validity of the title, as it had existed in Mitchel. The parties never had lE view this mere technical objection, which does not go to the me-' rits of the title. It would be- against good faith, for the tenant, one untjer ¾⅛ now to set up, and it it therefore ought not to be permitted;.

2~_It is stated that thfe action was commenced in the year 3798, and 1 am of opinion; that at that time thfe letters patent td 'Mitchel were nugatory and void, and the property reinained vested in the people of this state. The act of the 6th of April 1790; jrave letters patent for the military bdunty lands ah operation from the "27th of March 1783, so as to be deemed to have vested a title in the grantees from that time ; and the legislature were ho doubt competent to give their letters patent a relation back; to a time anterior td the issuing them. Considering tile promise that the state hád niade, to their two regiments of infantry, by the resolution of the 27th of March 1783, this relation back tb that time, was ho more than a just execution of that original promise, and, not being to the prejudice of third persons, it was conformable to general principles of law. 18 Vin. Abr. Tit. Relation, D. E. But this act of 1790, could not, by any just construction, be considered as authorizing grants, when the person to be designated as the grahtee was not alive in March 1783. The resolution of the legislature evidently referred only to officers and soldiers then in esse, and composing thfe regiments commanded by Van Schaick, and Van Cortlandt; and the resolution of congress of the 16th of September 1796, on which the resolution of the legislature was trained, Only applied to the soldiers who should ’continue to the end of the war, and to the representatives of those who should be slain by the enemy. There could be no pre-tence that á soldier who died before 1783, was within those provisions, and the act of 1790, by making the letters patent to be issued in pursuance of the resolution, to refer back to the date of the resolution and no further, most undoubtedly meant, that they should correspond, and be 'commensurate only faith the former provison. There is nothing in the words of the afc't, Wheh attentively considered, 'that favors a different construction ; ahd it would, indeed, have required the most explicit and positive provision to have extended the grants, by relation, anterior to the period of 1783, and beyond the limits of the original contract The act of the 5th of April 1803, appears to reach and help these patents, made t’o persons who were dead in 1783, by reViving the grant and giving it a relation back to the life of the grantee. It declares “ that the title to all lands before granted “ by letters patent to officers and .soldiers serving in the line “ of this state, in the army of the United States, in the war with “ Great-Britain, and who died previous to the 27th of March 1783, “ shall be, and is declared to have been vested in the said per-s< sons at the time of their deaths respectively!” This'act does not appear to have been intended as a declaratory act, and we ought not to presume it to have been so intended, vVhen we do not perceive any solidity in the opinion that such was the antecedent law. And if this last act was a declaratory one, it would not be binding on the courts as such, although as a legislative opinion, it would deserve and receive very respectful consideration. I consider therefore, this act of 1783, as introductory of A new rule in respect to the letters patent in question ; and had it passed before the commencement of the present suit, it would have conclusively established the plaintiff’s title. This last provision affects no other rights, than those of the state. There Cannot arise any conflicting title in consequence of it, and it rested with the legislature, in its discretion to part with its title to the premises, in the mode, and to the extent it should deem advisable. But a title acquired after the - commencement 6f the suit, cannot be introduced upon the trial, unless it be one derived from the defendant, since this would be to charge the defendant with the costs of the Suit. For this reason, I think the plaintiff obght to have been nonsuited at the trial, notwithstanding he appears to be now Vested with a valid title.  