
    The People of the State of New York against Brown and others.
    Intrusion for a forfeiture of lands granted in fee, will not lie before office found. Intrusion must be on the actual possession of the people. The people can acquire seisin or possession of lands, for breach of condition by matter of record only.
    This was an information filed, at the direction of the legislature, by the late attorney-general, against the defén d-ants, for an intrusion on certain lands lying in the county of Otsego.
    The defendants claimed under letters patent, of the 6th of September, 1770, for 9,200 acres, granted by his majesty, George the Third, of Great Britain, France and Ireland, king, &c. at a quitrent of two shillings and sixpence, sterling, for every hundred acres. After the usual [*417] reservations *of mines and white pine trees, for masts, the grant contained the following proviso: “ Provided further, and upon condition also, nevertheless, and we do hereby for us, our heirs and successors, direct and appoint, that this our - present grant shall be registered, and entered on record, within six months from the date hereof, in our secretary’s office, in our city of Hew York, in our said province, in one of the books of patents there remaining; and that a docket thereof shall be also entered in our auditor’s office, there, for our said province, and that in default thereof, this our present grant shall be void and of none effect, any thing before in these presents contained to the contrary thereof, in any wise, nothwithstanding.”
    It was admitted that no docket of the said letters patent, had been entered in the office of the auditor, pursuant tc the said proviso ; but the following entry, made since the year 1797, was found in a memorandum book of patents in the office of the comptroller of this state, to wit: “ 1558,. patent granted to Leonard Lispenard and others; for 9,200 acres of land in Albany county, dated the 6th of September, 1770, at two shillings and sixpence, sterling, for every hundred acres.”
    About the same time when the above memorandum was made, Samuel Jones, Esq. comptroller of this state, pursuant to the laws relative to quitrents, caused the aforesaid tract of land to be advertised for payment of the quitrents due.
    
    It was further admitted, that on the 3d of April, 1799,, the sum of 3 dollars and 84 cents was paid into the treasury of this state, by George Stanton, one of the original patentees, in pursuance of the act for the collection of quit-rents, as the arrears and commutation then' due on lots Ho. 41, and 42, and, that, on the 28th of October following, 3 dollars and 82 cents were in like manner paid, on 50 acres of the grant, by one Jesse Clark, who had purchased under the patent, from which the defendant Brown derived his title; but neither the lots 41, and 42, nor the 50 acres on which the said 3 dollars and 82 cents were paid, constituted any part of the lands in his tenure.
    *On these facts, the question was, whether the [*418] defendants were or were not guilty of the intrusion complained of.
    
      Spencer, (Attorney-General.)
    It is admitted that there was no docket entered in the auditor’s office, according to the proviso in the letters patent. The information is grounded on this principle, that the forms required by the grant created a condition, proviso, or limitation, which was to make it void on the not doing a certain act by the patentees. If therefore, this act has not been performed, the instrument is a nullity, and the people have a right to con- . eider all persons now on the land as intruders. It may, perhaps, be urged in behalf of the defendant, that the act concerning quitrents has done away the forfeiture ; especially as the qfficers of government have received the quitrents due, and, therefore, considered the patent as in existence, . and good. That, however, will depend on whether the not docketing the patent within the time limited, did not cause the estate of the patentees to instantly cease; or whether, •even allowing the contrary, the payment could purge the forfeiture for more than those very lands for which made, and which do not include those for -which the intrusion is brought. There can be no doubt that every grantor, whether a state or an individual, may annex to his grant whatever conditions he pleases, provided they are not repugnant to principles of law. Here, the condition is, that the grant shall “ be void and of none effect." Therefore, the acceptance of rent could not restore what was gone. Sir Moyle Finch's Oase, Cro. Eliz. 321, shows the soundness of this position. This, it may be said, was the case of a demise for years. A distinction, therefore, may be attempted between that and the present, which is of a fee. In fact, however, the diversity does not exist. This the court will see in 17 Yin. 81, pi. 1. n. It is not, that in one case the estate is void, and in the other voidable; but whether the determination be by the same means as create the interest. The proviso here was a limitation which ended the estate on non-performance ; because, as it was created by matter of record, so it was to be destroyed *by matter of re- [*419] cord. It is generally true, that where a freehold is to be defeated, entry is necessary ; but it is not so where an act that ought to appear of record is not done. It is laid down that if an estate granted by the crown determine by a condition broken, the king shall be seised without office found, where the breach is apparent upon record. 7 Com. Dig. 53. (D. 70.) It is the revesting the estate which we contend for here. This makes the difference between the present question and that of Van Schaick, in 1796, in which it was decided, by the court of errors, that ■a new grant could not be made till after office found; not that an information would not lie before. There can be no doubt of the words used in the grant creating a condition, operating as a limitation or qualification of the estate. Litt. sec. 329. For this purpose, the word “ provided” was certainly the most fit. On breach of it, the estate must be judged in the grantor, or, as here, the people. Litt. sec. 350. So here, as the non-performance was of record, the right to proceed by intrusion accrued before office found, the estate of the patentee being totally devested.
    The next consideration is, whether any thing has been done to, waive the forfeiture. This may be laid down as an established position; what is void cannot be confirmed, what is voidable may. As, then, the interest of the patentees was absolutely annulled, the receipt of the quitrents could not revive it. Jenkins v. Church, Cowp. 482; Doe v. Butcher, Doug. 50. Even in avoidable cases, the mere acceptance of rent, unaccompanied with any other circumstances, will not work a confirmation. .See Green's Case, Cr. Eliz. 3; Roe.v. Harrison, 2 D. & E. 425. ¡No receipt can revivé or confirm, unless taken with a knowledge of the forfeiture, and an intent to waive it. The act concerning quitrents does not recognize any loss of title in the defendant, or others holding under .the same patent. ¡No payment, therefore, to an officer acting by authority of a general law, with a power merely to extinguish quitrents, could revest. All that he could do was to bar the right of the people on them when due, and not by taking them, if not due, to give away the land of the state.
    
      *Emott and Van Vechten, contra.
    Though from the length of time the defendant, and those under whom he claims have been in possession, the case is a hard one,, still we are ready to exculpate both the present and late attorney general from all imputation of rigour. They have acted only in obedience to resolutions of the legislature. The case divides itself into two questions; 1st. Whether the grant be void, or voidable ? 2d. Whether, if so, the present form of proceeding is the appropriate remedy ? Whether void or voidable, will depend on a number of subordinate inquiries. We did not, it must be confessed, expect that the proviso would be urged as a limitation, which always goes on a certain express time of determination ; it is a condition, and nothing more; in which case, as the estate might continue over, it was voidable, and not void. But the words in question created, neither the one nor the other; they were merely directory on the officers of government, and did not oblige us to do any thing: they are separated from the conditions by which the grantees were bound by specific acts. The words are, “we direct and appoint. The clause itself is rare, this being the only grant we can find in which it is.contained. The officers of government ought, the clause being directory, to have given notice to the patentees to come in and docket; for, to the patentees themselves, the act was" nugatory, as they had complete evidence of the right by the grant itself. But, considering the clause as a condition, then, we contend, it is repugnant to the grant, and void. It was for an act to be done by the officers of the crown, for the benefit of the crown alone. It is the same as if the grantor had conveyed, on condition that he should himself lodge the consideration-money, within 20 days, in the United States bank, or the conveyance be void. The result would be, to put the whole grant in the power of the crown ; or, what ■is the same thing, within that of its officers. But, should the condition in the proviso be deemed a valid one, and obligatory on us, we say it has been performed; for if the intent be complied with, it is sufficient. That the leaning of the court is *against forfeitures, we cite [*421] Bull. 1ST. P. 96, and that the intent, and not the letter of the words ought to regulate. Shep. Touch. 139. 1 Atk. 375.
      Daley v. Desboviere, 2 Atk, 261, and the cases cited in n. 1, p. 264. What, then, was the intent to be answered by this docket ? Merely to inform the court of the existence of the grant, and the value of the reserved vent, that no interfering patents might issue, and the amount of its revenue be known. The entry, therefore, in the comptroller’s office, taken from the old minutes there, was fully adequate to every purpose. For though two acts are mentioned in the proviso to be done, it does not follow that both are necessary to be performed. Long v. Dennis.
      
       
      4 Burr. 2052. In the present case, however, after a lapse of 30 years, in a country circumstanced as this' was during a revolutionary war, and when the very record may be supposed to have been taken away by the officers of the crown, to presume a docket regularly entered is no more than what the law will warrant. Bedle's Case, 12 Bep. 5.
    Should it, nevertheless, be held, that the forfeiture was incurred, we still contend that it has been waived. The argument urged against this position, that there is a distinction between the acts of individuals and those of officers of government, is contrary to the implication arising from the case of Sir Moyle Finch, relied on by Mr. Attorney. For the people are bound by the act of their agent, in the same manner as any common person. "What then, are those acts ? First, the permitting 30 years to elapse in silence; next, the comptroller has made a record, or docket, by entering the memorandum stated in the case to have been written in 1797, which fully sets forth the dates, parties, and rents; this, too, is an act of a public officer. Secondly, by advertising these very lands for the quitrents due, under the authority of the act mentioned in the case; for the language of the advertisement is, we claim not the lands, but the quitrent due. Thirdly, the comptroller has received from one of the patentees, and from a person holding under the grant to them, quiterents for some of these lands, and though they have been paid but upon portions of the tract, yet they will accrue to the benefit of [*422] the whole grant. Goodright v. * Davids, Cowp. 803.
      Pennant's Case, 3 Bep. 64, b.
      Green’s case, Cro. Eliz. 3. 3 Salk. 3.
    
    
      Independent, however, of what has been before advanced we contend, that an information for .an intrusion cannot be supported before office found. This is absolutely necessary to entitle the people to proceed. In the case of common persons, if it be intended to destroy an estate for a condition broken, it is indispensable that an entry should fiist be made. Shep. Touch. 153. Whenever an entry is required of an individual, an office must be found for the king. Sir George Reynel's Case, 9 Rep. 96, b. 16 Vin. Abr. 84, pl. 24. Ibid. 83, pl. 19, 20. Even where the whole estate has become void, by the non-performance of the condition, still an office must be found before the tenant can be held an intruder. Sir Moyle Finch's Case, 2 Leon. 143. Payne's Case, ibid. 206. The proviso on which the Attorney-General relies, being a condition, and the estate under the patent taking effect immediately, it is plain that the grant was voidable only, and not absolutely void. This being so, and nothing done to avoid "the grant, and put the people into possession, intrusion, cannot lie, for it is essential to intrusion that it be on the actual possession of the crown. 3 Bl. Com. 261; Moor, 375.
      
       Therefore, in all cases of forfeiture, &c. intrusion will not lie till office found, this being the legal substitute for entry by "a private person, and the only means for the crown to regain the possession, for the injury to which the intrusion is brought. Moor, 296, 297. That this is only to be done by office found, Parslow v. Corn, Cro. Eliz. 855, is an authority fully in point. Besides, the title created by the patent was matter of record, and, of course, must be avoided by that which is of equal solemnity. Plowd. 229; -and the cases there cited. The only method, then, to have been pursued, was by an office finding the forfeiture, and intrusion upon that. This will appear still more evident, if we consider the effect of the different proceedings. On the inquest of office, performance of the condition, or refusal by the officer, which is tantamount, 10 Rep. 67, b. 2d Res. might have been shown, but this could not be done under an information for intrusion, which merely states the possession of the crown, and the defendant’s intrusive entry [*423] Case of Alton Woods, *1 Rep. 28. Plowd. 479. The necessity, therefore, of these measures must appear, that the parties ipighthave notice of the grounds of the claim against them. This cannot be done by the information now brought, which is not like a writ of escheat that sets forth the whole claim on the part of the crown, If what has been laid down already for us be true, that the docketting was a duty to be performed by the officer, then it is, for the honor of the crown, as the old books say, to be presumed that it has been done. Case of the Churchwar dens of St. Saviour Southwark, 10 Rep. 66. For it can never be imagined that the crown would make a grant dependent for its validity on acts to be performed by itself, and omit those acts. Let it be observed, too, that no form of docketing is prescribed by the grant; and, as the revolutionary war has intervened, it may well be intended that the entry made in the comptroller’s office, in 1797, was by way of docket, which could be no more than a memoran-, dum for the guidance of the officers of the crown. If, however, the proviso be a voidable condition, then the doctrine of waiver will apply. For government can never be supposed to do so great a wrong as to permit men to make improvements, then offer to receive a commutation in discharge of quitrents due, on, those very lands which they claim as forfeited, receive the amount, and then attempt to defeat their grant. Because, having dispensed with the condition in part, by a partial receipt of quitrents, the condition is dispensed with in the whole. Dumper v. Sims, Cro. Eliz. 816. This species of construction is due to the liberality and honor which we are to suppose constantly actuate the proceedings of government, and is a principle universally acknowledged. Bewley’s Case, 9 Rep. 131 
      Molyn's Case, 6 Rep. 5; 10 Rep. 67. In a more peculiar manner is this to be adhered to after a lapse of 30 years, when the rights of third persons, bona fide purchasers, and others, are' implicated. In Van Schaick's Case, it was settled, that where a forfeiture was apparent, by matter of record, then a scire facias should go ; when it arose on matter in pais, an office must be found. The information, therefore, must fall.
    
      Spencer, in reply.
    The words of the proviso are sufficient' to show the docketing was not directory to the officers of *the crown. The grant was to be valid [*424]' on doing several acts, some in pais; some of record. If not performed in a certain time, the letters patent were to be void. The words “ direct and appoint,” are declaratory to the patentees, that the estate granted should be subject to the condition of ifieir registering and docketing. This must always be at the request of the parties, who must do an act towards it: nay, they, according to the colonial system, had to pay for its being done, and, therefore, it was ■ clearly a duty in them; for it is coupléd with a stipulation, • that if it be not performed, the letters patent shall be void.This makes the proviso a limitation; and when so, it is not" necessary that an office should be found, because the crown would be immediately reseized. Poph. 53. Whether, however, it be considered as a limitation, or a condition, is immaterial for no office was necessary. It is required only to make the forfeiture known by matter of record. Here-the docket was a matter of record; therefore, whether the grant was docketed, or not, would appear by inspection of the records. The forfeiture, then, being thus by matter of record, needed not to be found by office. The authorities cited by the other side are in conformity to this position. 2 Roll. Abr. 215: Cro. Car. 100; Stevens v. Potter. On the not docketing according to the terms of the proviso, the estate of the patentees was gone, and, this being by matter of record, the people were reseised. JSTo act therefore, of their officer in taking rents not due, could revive an interest absolutely avoided and null. The cases from Cowper and Douglas, when looked into, will show this, though they are quoted as authorities against the people. The principle they settle is, that’ no acceptance will waive a forfeiture, without knowledge of all the circumstances by which that forfeiture was worked. The people had acquired a fee on breach of the condition. The quitrents, therefore, were merged, and a tortious taking by their officer of what was not due, not knowing it not to he due, can never waive their rights.
    
      Yan Yechten.
    
    We say, by the act he was constituted judge whether quitrents were due or not.
    
      Spencer.
    
    We say he was not; that he was a mere receiver, delegated to receive alone. The act of the [*425] . officer *in making the entry in 1797, was allowing his acts to enure to the advantage of the defendant, yet it was not in time. In arguing from the presumption the 30 years’ lapse has afforded, the counsel seem to forget that there is a law by which the limitation of suits by the people for land, is settled at 40 years. It is an absurdity to settle a limitation at 40 years, and presume against it at 30. Mor can anything be presumed from the revolution, because the court know all the papers in the various office» were preserved. ' In one of the cases referred to, the presumption arose from this ; that as the deeds were delivered in to be cancelled, (10 Rep. 67, 2d. Res.) the officer should be presumed to have cancelled them ; hut were the deeds here delivered to be docketed ? On every ground, therefore, we consider the people entitled; especially as the want of docketing is proved by the records, and an office found would be only surplusage,
    
      
       The name of the first patentee.
    
    
      
       Tinder the 8th section of the “Act concerning quit-rents," passed 8tL of April, 1801.
    
    
      
      
         The decision alluded to is Stephens v. Potter, Cro. Car. 100, 2d Res., _ but that merely determined that a lease for years, reserving rent payable at the exchequer, is void on non-payment, without office found; whereas, if the •rent be payable to the receiver-general, non-payment, without office found, does not vacate. The reason is obvious, as the crown can grant only by record, it can be informed only by record; the non-payment to the receiver is a matter in'pais;- when found by office, it is of record, and so is non-pay ment at the exchequer. See, however, this doubted, 2 Roll. Abr. 216, (H.
    
    
      
       The cases there referred to are of leases.
    
    
      
       The case of a lease for five years, with condition to have fee on paying of forty marks at the end of two years, and livery of seisin according to the deed. Revested by implication, because grantor could not enter upon tht ' oreaeli, as, by his own grant, the grantee had .hree years in the land.
    
    
      
       As to conditional limitations,, see Fearne’s Con. Rem. 9, 6th id.
    
    
      
      
        а) Where a benefit is to accrue to a third person, on the performing an act by another, that circumstance will not excuse the act; if not performed, perhaps an action would lie. See Ex parte Carruther, 9 East, 47.
    
    
      
       That is, if the act done be in law tantamount to the condition expressed, as if to enfeoff; and alease and release be executed. So in the case put Litt. sec. 352, on the doctrine of cy pres.
      
    
    
      
      
        Harvey v. Aston. The condition there was marrying with consent. The other authority from Atkyns, relates also to conditions in restraint of marriage.
    
    
      
       That also was a decision on a case in restraint of marriage, in which the conditions were held to be in the disjunctive, performance, therefore, of one st'fficient.
    
    
      
       The point there was, that acceptance of rent, after condition broken, with notice of the breach, is a waiver of the forfeiture.
    
    
      
      
         Which of the resolutions there made is alluded to, I know not; possibly the third, but that goes on the distinction between void and voidable leases
    
    
      
       Determined that receipt of rent due, does not prevent re-entry, but if accompanied with a receipt calling the lessee his farmer, or tenant, it does.
    
    
      
       That was an acceptance of rent from the executor of an assignee of alessee, knowing him to be the executor; held a waiver of the forfeiture for assigning
    
    
      
      
         The words in Moor are, “An information for intrusion is not a real, but personal remedy, and resembles, in all points, a trespass against a subject, for it supposes the queen in possession."
    
    
      
       Act for limitation, of criminal prosecutions, and of actions at law. 1 Rev. Laws, 562.
    
   Lewis, Ch. J.

delivered the opinion of the court. *To decide the question in this case it is necessary [*426] to inquire whether an information of intrusion lies under the circumstances detailed. To sustain a prosecution of this description it is necessary that the crown formerly, and the government now, should he in the actual seisin or possession of the subject intruded on. I shall lay down a few general principles or maxims, which I conceive incontrovertible, and which may be gathered from the two principal cases, relied on, that of Sir Moyle Finch, and of Sir George Reynel, as well as from the decision of the court for the correction of errors, in the case of The Devisees of Van Schaick v. King, Cro. Eliz. 220; 2 Lev. 134; 9 Rep. 95, a.

1st. That the state can acquire seisin or possession of lands, for breach of condition, by matter of record only.

2d. That generally, where entry is necessary in the case of a common person, an office is necessary to entitle the ttate.

3d. Where entry and action are necessary to a common person an office and sci. fa. are necessary to the state. 9 Rep. 95, b.

It is true, there are cases where the crown may be in possession by seizure without office, but they are not cases of this description; they are confined to the forfeitures of the temporality of alien ecclesiastics, where the certainty of the matter appears in the exchequer.

There is an important and striking distinction between the case of Sir Moyle Finch and the one now before us. The forfeiture there was of a term; here, if any, of fee; now a fee shall never be void absolutely, for condition broken ; but voidable by entry only, though it is otherwise of a term. But even in Finch's Case, as reported by Leonard, who states it much more at large than Coke, both Popham and Coke, who argued for the plaintiff, and Manwood, Ch. B. in giving judgment for the plaintiff, admitted that, although the lease was void without office, it was void in' interest and property only, but not in possession. And -that though the queen without office, and a common person Avithout -entry, might grant it over, yet the former could not without office prosecute for .an intrusion, .nor the latter without entry for a trespass.

These opinions, we think, decide the question; and that judgment must be accordingly .for the defendants.

Judgment for the defendants.  