
    Elizabeth D. De Lancey, Resp’t, v. Henry Piepgras, App’lt, and John Hunter, Impl’d, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 8, 1892.)
    
    1. Ejectment—Land patents—Forfeiture.
    A grant of lands from the crown reserved a yearly rent, but contained no provision for a forfeiture or for re-entry for non-payment. Held, that payment of rent was an implied condition subsequent on. which the land was held; that the crown had a right of forfeiture for non-payment which passed to the people of the state, and that the state had a right to enforce such forfeiture by sale under the acts of 1819 and 1828.
    2. Same—Sale.
    The comptroller will be presumed to have followed his instructions in making the sale under such acts, but an omission to do so is immaterial so far as a purchaser at such sale is concerned.
    3. Deed—Boundary.
    A grant of land bounded by navigable tide waters carries the title to high water mark only.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.
    
      James R. Steers, for app’lt; Walter D. Edmonds, for pl’ff, resp’t; John Hunter, Jr., for-resp’t Hunter.
   Dtkman, J.

This is an action of ejectment for the recovery of the possession of land under the waters of Long Island Sound outside of Mineford’s Island, now called City Island, in the county of Westchester.

The plaintiff and the defendant John Hunter are children of Elias D. Hunter, deceased, and they claim the premises through him, and they have succeeded to his rights, which were derived in this way:

The lands in question were included in a grant from the crown of Great Britain to Benjamin Palmer, his heirs and assigns, bearing date May 27, 1763, reserving a yearly rent of five shillings sterling to be paid to the collector at the custom house in the city of Hew York yearly on Lady Day.

Ho rent was ever paid, and after the people succeeded to the rights of the crown, the legislature of the state of Hew York passed a number of acts directing the grantees of lands chargeable with unpaid quit rents to come in and redeem the same, and declaring in case of failure to do so that such land should be sold as lands forfeited to the people of the state by reason of the nonpayment of such rents. Laws of 1775, ch. 41; 1786, ch. 23; 1801, ch. 187, and Laws of 1813.

Finally, in the year 1819, a law was passed by the legislature of the state of Hew York which directed all the lands so forfeited to be sold by the comptroller of the state, after advertising such sales in the manner prescribed by the act. Laws 1819, chap. 222.

The sale thus directed was postponed from time to time by acts of the legislature (Laws 1821, chap. 241; 1823, chap. 104; 1824, chap. 225; 1825, chap. 251) until March 26, 1826, when the land was sold by the comptroller at public auction to James Van Vechten.

Two years were allowed for redemption, and the original purchaser, Van Vechten, having transferred his interest to Elias D. Hunter, a deed was executed and delivered to him by the comptroller for the premises, dated April 5, 1836.

Hunter assumed possession by renting these premises to a tenant, who continued to occupy them until about the year 1865, and built a dock upon them to facilitate his occupation.

The defendant Piepgras claims title to the premises by three grants from the commissioners of the land office, bearing date December 3, 1863; October 21, 1875, and. January 15, 1891, respectively.

' In passing the acts which led up to the sale .of these premises the legislature proceeded upon the assumption of a forfeiture of the title for the non-payment of the rent reserved in the grant to Palmer, and the validity of the Hunter title depends upon the accuracy of that theory.

There is no clause in the Palmer patent creating a forfeiture or reserving a right of re-entry for non-payment of rent, the language being: Yielding, rendering and paying therefor yearly and every year forever * * * the yearly rent of five shillings sterling.” But we think the payment of such rent was an implied condition upon which the land was held.

The grant to Palmer was a conveyance in fee reserving a perpetual rent, or, as it is sometimes expressed, it was the letting of lands to farm in fee simple. But the grant reserves no right of distress or re-entry, and, therefore, the rent is called a rent seek because at the common law the lord could not distrain for the rent

In such grants the rents were always considered as conditions annexed to the grant by implication of law, and if the tenant was in default for the non-payment of rent, the lord might resume the fee. 4 Kent Com., 122; 2 Washb. Real Prop., 5th ed., 6; Gerard’s Titles, 3d ed., 118.

“Estates which men have upon condition in law are such estates which have a condition by the law to them annexed, albeit that it be not specifiéd in writing, * * * and such condition as is intended by the law to be annexed to anything is as strong as if the condition were put in writing, * * * also estates of lands and tenements may be made upon condition in law, albeit upon the estate made there w.as not any mention or rehearsal made of this condition.” Littleton, §§ 378, 380.

A reservation of a right to re-enter for non-payment of rent was not an essential requisite to the right to maintain ejectment in the event of a breach. 4 Kent. Com., 123.

The condition implied in this case was a condition subsequent and followed the vesting of the estate, and the rent reserved furnished the grantqr with a vested interest and a right to enforce the forfeiture.

The act of 1826, which directed a sale of these lands by the comptroller of the state, directed him to give notice of such sale in certain ways, and the appellant now contends that proof of compliance with such direction was necessary to establish the validity of the comptroller’s deed of conveyance given in pursuance of such sale, but the contention is erroneous.

Under our conclusion ¿he land had been forfeited to the crown before our revolution of 1776, and that forfeiture had enured to the people of this state, who thus and then became the owner of the premises.

Being such owner the state, through its legislature, appointed the comptroller its agent to sell the land, and gave him certain directions respecting liis mode of procedure in making such sale.

We may presume that he followed his instructions, because it was his official duty to do so, but whether he did or not is quite immaterial so far as a purchaser at his sale is concerned.

The sale of the land in question bears no analogy to sales for unpaid taxes. Such sales are in derogation of private right, designed to divest the owner of his title, and a strict observance of the requirements of the statute is essential to their validity.

Under our system of jurisprudence the right to life, liberty and property is protected with great jealousy and cannot be invaded without the observance of all the safeguards provided for its protection. 2To such principles or rights are involved in this sale, which, reduced to simplicity, is a sale of land by an agent appointed by the owner writh certain instructions respecting the formalities of the sale which do not affect the power. The power to sell was ample and it was fully executed and no one can complain of the disobedience of instructions by the agent, if any there was, except the owner.

The deed of conveyance is in pursuance of the power, and is conclusive evidence of the regularity of the sale.

In relation to the requirement of notice of the sale to a person in “ actual possession and occupancy” of the land sold, it is sufficient to say, first, that no such possession or occupancy was shown, and second, if there was any omission in that respect, the defect was cured by the long possession of Hunter under his deed of conveyance, which was open and adverse to all.

As the appellant endeavors to bring the Pell Patent to his assistance, it will be necessary to make some examination of that instrument. It was a grant of land situated on the main land, bounded and described as follows: “ All that certaine tract of land upon the moine lyeing and being to the Eastward of Westchester bounds, bounded to the Westward with a river called by the Indians Aqueconounck, commonly known to the English by the name of Hutchinson’s Biver, which runneth into the bay lying betweene Throgmorton’s neck and Annehooke's neck, commonly called Hutchinson’s Bay, bounded on the East by a brooke called Cedar Tree Brooke or Gravelly Brooke, on the South by the Sound which lyeth between Long Island and the maine land. With all the islands on the sound not before that time granted or disposed of lyeing before that tract of land so bounded.” This description is taken from the Dongan charter of confirmation to John Bell, dated October 20, 1687.

The grant is bounded by the • sound, which was- navigable tide water, and carried the title to high water mark only. 3 Kent Com., 432; Gould v. R. R. Co., 6 N. Y., 522; Brookhaven v. Strong, 60 id., 65.

As the land granted to Palmer was below high water mark there was no repugnance or incompatibility between the two grants and the appellant can derive no benefit irom the patent to Pell.

• The cases of Rogers v. Jones, 1 Wend., 237; Broohhaven v. Strong and Robins v. Ackerly, 91 N. Y., 98, are cited by the appellant to show that the grant to Pell must be construed to' include the land under the waters of the sound, but those cases only decide that land under water will pass if it lies within the bounds- of the grant, and they are therefore unavailing as we have already "seen that the lands in question were not included within the boundaries of the grant to Pell.

Neither is there any force in the insistence of the appellant that Palmer received his grant in trust for others, because it plainly invested him with the absolute title.

It is to be said in relation to the claim of the appellant that if our position on this question is correct then the grants under which he claims conveyed no title, as the state had before that parted with all its interest and had nothing to grant.

Our conclusion is in favor of the plaintiff, not only upon a careful and critical examination, but upon a broad and comprehensive view in the light of reason and justice.

The crown made an absolute grant to Palmer in fee, reserving rent payable at a specified time, and a designated place. The rent was unpaid and the lands were forfeited to the crown for such non-payment Then the revolution intervened and the people became vested with the rights of the crown and the legislature declared the forfeiture and sold the lands and conveyed them to Hunter, who used and occupied them for thirty years. His title came to the plaintiff and the defendant John Hunter.

The appellant has three water grants from the commissioners of the land office, all of which are void because the state had parted with its title long years before their date.

We find no ground for hesitation and the judgment and order denying the motion for a new trial should be affirmed, with costs. Pratt, J., concurs; Barnard, P. J., not sitting.  