
    Jackson, ex dem. Miller and others, against Winslow.
    A soldier in the New-York line of the A. merican army became enti’ tied to land, and died in 1778, withut issue. Letters patent were issued in 179S, for the land in his name. His father died in 1803, leaving-5 sons and 3 daughters. The eldest brother sold, and conveyed the land in 1801, to H. In an action of ejectment brought to recover the possession of the land, by H, who claimed under the deed of the eldest brother, against W. who held under a person who was in actual possession of the land when the deed to H was given, it was huid that the deed from the elder brother was void, and that the land became vested in the father on tha death of the patentee, by the 8th sect, of the act of the 5th of April, 1802.
    This was an action of ejectment, to recover part of lot No. 57, in the town of Scipio, in the county of Cayuga. The cause was tried at the Cayuga circuit, before Mr. Justice Livingston, on the 9th of June, 1806.
    The plaintiff produced, and read in evidence an exemplification of the letters patent, for the land in question, dated the 13th of September, 1798, to David Miller, who was a soldier, serving in the New-York line of the American army, during the war with Great Britain, and died in 1778. Peter Miller, one of the lessors of the plaintiff, was the eldest brother of David Miller. The plaintiff then offered in evidence -of a deed, dated the 24th of October, 1801, from Peter Miller to Philip Hoaghtiling, and another deed from Hoaghtiling to James Knapp, for one third part of the premises in question. The reading of these deeds was objected to on the part of the defendant, who offered in evidence, a deed of the premises, from Z ocharía Tomlinson to Walter Wood, dated the 2d of December, 1796, and another deed from Walter Wood to Albert Crouse, dated 29th October, 1796, a'deed from Crouse to Elias Avery, dated the 26th July, 1803, and a deed from Avery to the defendant in possession, for the consideration of $2985, dated the 22d November, 1804; all which deeds were duly acknowledged and recorded. The defendant further offered to prove, that he was in the actual possession of the land in question, at the time of the date of the deed from Philip Hoaghtiling to James Knapp, and that Philip Miller, the father of David Miller, died the 5th of April, 1803, leaving issue, five sons, the said Peter Miller, and John, Samuel Philip, and Nicholas, and three daughters who were married. It was contended, on the part of the plaintiff, that the fee of the land, on the 24th of October, 1801, at the date of the deed from Peter Miller to Philip Hoaghtiling was vested in the people of the state of New-York, and that Crouse, and those under whom he claimcd, could not have held possession of the land long enough to have it considered as adverse to the title of the peopie. — “This objection, as well as the deeds offered on the part of the defendant, were overruled by the judge, and the deeds' offered on the part of the plaintiff were read in evidence. It was also proved, that Philip Hoaghtiling had died since the execution of the deed, leaving issue, the other lessors of the plaintiff. • A verdict was, theret upon found for the plaintiff.
    A motion was made to set aside the verdict, and the same was submitted to the court, without argument, on a case containing the facts above stated.
   Spencer, J.

David Miller, the original grantee of the lands in question, was a soldier, serving in the line of this state, in the army of the United States, in the late war with Great Britain, and died previous to the 27tli of March, 1783; and by the 1st section of the act of the 5th oí April, 1803 the title vested in him at the time ofhis death. His father, Philip Miller,who died since the passing of-that act, wouldtake as his heir, unless there was some person holding as a bona fide purchaser, under his eldest brother, Peter Miller. If such be not the case,then, as it appears that'f here are seven other persons who were the issue of Philip Miller, and co-heirs with Peter Miller, not made lessors, the plantiffs will not be entitled to take possession of more than one-eightli part of the lands, for which the action is brought. If there was a person who held as a bona fide purchaser in this case, it must be Philip Hoaghtiling, to whom, as the case states, Peter'Miller gave a deed, and I presume, for the premises in question

I confess that Icannot well understand the plaintiff's counsel, in supposing that, in 1801, the title to this land was vested in the state. The act of 1803, whether considered as a declaratory act or not-, absolutely vests the title in David Miller at the time of his death.' Whether it before vested or not, I am not to enquire; the legislature had plenary power toso vest it; and in the case of Jackson ex dem. Sherwood v. Phelps, the court considered the act as relating back to tbe time of issuing the patent. The conveyance by Peter Miller, the elder brother of David/ had it been valid, would have changed tbe rule of descent,. I am constrained- to say it was void-. The case of Jackson ex dem. Dunbar and Thorn v. Tod,† is very analogous to the present. There, a conveyance having been made by Platt, the real owner,, to- Thorn, it was held to be-void, in consequence-of a possession., at the-time, under an adverse title. It is true, I did not agree in the opinion delivered; but my dissent was not founded on any different view of the law, but of the facts constituting the adverse possession. I supposed- Todd's relation to- Isaacs was not made out. Here,. Crouse was in possession of the land, under a purchase, and claiming title, when Peter Miller gave the deed to Hoaghtling; which is, therefore void. If this deed was void, then there was no person holding as- a bonafi.de purchaser under the-elder brother, for a void deed is as none.

It then follows necessarily,¿hat the third rule ofdescent, prescribed by the statute of the 23d of February, 1786,. applies, and the father of David tools, as his- heir. He having died since 1803, and Peter Miller being one of the eight persons entitled upon his death, and the others not having been made lessors, he can only have judgment for one undivided eighth part of the premises.

Tomkins, J. Livingston, J. and Thompson,..!, concurred..

Kent, Ch. J,

I cannot concur in the opinion, just delivered. By the act of the 5th of April, 1803, the letters, patent of the. 13th of April, 1790,. were made to relate back to the life of the grantee, and the titles declared to have vested at the time of his death. The act was made to reach- precisely such- a case as that of David Miller, the patentee. (Jackson ex dem. Sherwood v. Phelps, 3 Caines, 68, 69.) Wc are therefore to consider tbe case in relation to the title,, a-s if Miller had been alive, when the letters patent issued, or rather as if they had been issued before his death, in 1778 ; and then the lessors of the plaintiff are to be considered as his legal representatives, Philip Hoaghtiling. is to be considered as á bona fide purchaser under Peter Miller, the heir at law under the pa-tentee ; for I do not think that the adverse possession set up by the defendant could effect that purchase, within the purview of the 8th section of the act of April, 1803. The word held, in that section, is not to receive- a technical meaning, ^because, no individual could have then held the land, in judgment of law, since the fee was in the state, until that act passed. ■ I do not perceive that the decision in Sherwood and Phelps is repugnant to this opinion. It is therefore sufficient to have been a bona fide claimant, as purchaser, or devisee under the heir at law, and such Hoaghtiling undoubtedly was. This case then I consider, as not within the operation of that section, and there is no ground for the suggestion that the state was ousted of its right to convey or release the premises, when the act of 1803 passed. The idea is wholly inadmissible. There may be an intrusion on the lands of the state, but the state cannot be disseised, and its grant is good, notwithstanding the possession of the intruder. ’ (Bacon tit. Prerogative, E. 6. 1 Rol. Abr. 659. No. 10.) I am of opinion, that the motion ought to be denied.

Judgment for the plaintiff, ut supra. 
      
      
         L N. Y. v. 3. p. 401.
     
      
      
        L. N. Y. v. 1. p. 46.
     
      
      
        Sec. 8. v. 3. p. 399, Laws.
     
      
       3 Caines 67.
     
      
       2 Caine, 183.
     
      
      
        L. N. Y. v. 3. p. 401.
     