
    Rogers against Hillhouse.
    
      October 19.
    A quit-claim deed, without valuable consideration expressed, is valid between the parties. ,
    Where the judge instructed the jury, that “ a quit-claim deed, without valuable consideration expressed, might be good between the partiesit was held, that this was equivalent to a positive direction, in favour of the validity of such deed ; at any rate, that the want of a more explicit direction, was no ground for á new trial, in a case in which the title of the opposite party was established by fifteen years adverse possession.
    Where a party claiming title to land, by adverse possession, offered in evidence an unacknowledged deed, from one to another of the persons under whom he claimed, and a judgment in favour of one of those persons against a third person, accompanied with proof of possession, and acts of ownership; it was held, that although such party could not establish a title by force of the unacknowledged deed, or of the judgment between other parties, yet these documents were admissible to evince the character of the possession.
    When the time limited for making entry upon land, has once begun its operation, it will continue to run, notwithstanding any subsequent disability.
    THIS was an action of trespass quare clausum fregit, brought in 1818, and tried in New-Lonaon county, January term, 1820, before Brainard, J.
    The plaintiff claimed title to the land described in the declaration, by deed from Elisha Lathrop and others, to Simon Lathrop, dated May 10th, 1760; and through him, at his decease, on the 25th oí January, 1774, by descent, to his daughter Martha Cogswell, then, and until her decease, on the 6th of March, 1795, a feme covert; from her, by devise, made with her husband’s consent, to certain of her children and grand-children ; from them, by deed, dated August 31, 1797, to Ebenezer Devotion; who conveyed to the plaintiff, by a deed of bargain and sale, with warranties, dated April 10, 1807, all the land within the boundaries specified in the declaration, excepting and reserving to himself about ten acres thereof, and by a quit-claim deed, dated the same day, the part so excepted and reserved. The defendant contended, that the acts charged were done upon the quit-claimed tract; and that this was the freehold of those, under whom he claimed, viz. Elisha Lathrop, and those under whom Elisha Lathrop claimed, who had been in possession of the land, from the year 1766, to the present time, holding it as their own. To prove that such possession was adverse, he offered in evidence a deed from Elisha Lathrop, to one Bela Turner, dated December 29, 1781, which had never been acknowledged ; also, a judgment in favour of Ephraim Miner, to whom Turner had, in 1784, conveyed, and under whom the defendant claimed, against Joseph Hammond, rendered in February, 1801; accompanied with proof, that Miner, by virtue of and under that deed and judgment, went into possession of, and exercised acts of ownership on, the land. To the admission of such deed and judgment, with the proof accompanying them, the plaintiff objected ; but the judge over-ruled the objection, and admitted them.
    
      New-London,
    
    The plaintiff also claimed, that Mrs. Cogswell, being a feme covert at the time her right of entry first descended, and so continuing until her decease, her heirs might enter within the period limited by statute, for making entry upon lands after the removal of the disability, notwithstanding the adverse possession might have commenced during the life of her ancestor, Simon Lathrop, and continued for more than fifteen years thereafter. But the judge charged the jury, that the statute, having begun to run in the life of Simon Lathrop, would continue to run against her right of entry, notwithstanding her coverture, at the time her right first descended.
    The defendant contended, that there being no other consideration expressed in the quit-claim deed, than the words “ for divers good causes and considerations,” it passed no interest to the plaintiff. On the other hand, the plaintiff claimed, that a quit-claim deed, without a consideration expressed, would pass the interest in the land to the grantee, and, as between the parties to it, would be a valid instrument. The judge charged the jury, in general terms, that a quit-claim deed might be good without consideration ; but did not state to them, whether in the present case, the quit-claim deed was, as between the parties, effectual to pass the interest in the land.
    The defendant having obtained a verdict, the plaintiff moved for a new trial, on the ground that the several decisions of the judge above stated, were erroneous.
    
      Goddard and C. Perkins, in support of the motion,
    contended, 1. That a quit-claim deed, without consideration, is valid; an)j so the jury should have been explicitly instructed. Such deed > valid, because it is a common law conveyance ; and a consideration is not necessary, to any instrument of conveyance at common law. 4 Cruise’s Dig. 24. 1 Cruise’s Dig. 409. From the charge, the jury could understand nothing more, than that, under certain circumstances, a quit-claim deed, without consideration, might, be good ; but from the judge’s avoiding the application of his remark to the deed in question, they would, of course, infer, that this deed was not valid.
    2. That a paper, purporting to be a deed of land, without acknowledgment, is wholly inoperative, and inadmissible in evidence. 1 Slat. Conn. tit. 163. s. 6. 7. Doe v. Roe, 1 Johns. Ca. 402. Stanton v. Button, 2 Conn. Rep. 527. The taking of possession, under a void instrument, cannot make it evidence in courts of law.
    3. That the record of the judgment, recovered by Miner against Hammond, ought not to have been received as evidence in this suit; the parties to that judgment being strangers here. Phill. Ev. 228. Neither the claiming to exercise acts of ownership, nor even an actual entry under the judgment, can alter the legal character of the judgment, or vary the rights of those, who are neither parties nor privies.
    4. That during the whole period, from the death of Simon Lathrop, when the estate descended to Mrs. Cogswell, until five years after her death, the plaintiff’s title was protected from the defendant’s claim, by adverse possession. The statute contemplates several rights of entry, as accruing at different times. It provides, that any person may enter, within fifteen years after the first accruing of his right; allowing him full fifteen years for making entry, and imputing no laches to him during that period. But if he die before its termination, % right of entry descends. If the heir is, .at this time, a feme covert, her right is protected, by the proviso, during the continuance of her disability, and five years afterwards. This construction militates against no rule of law, nor judicial decision. The cases of Stowel v. Lord Zouch, 1 Plowd. 355. and Doe d. Duroure v. Jones, 4 Term Rep. 300. were under the s^tute of Fines, and not under that of 21 Jac. 1. from which ours is derived.
    
      
      Cleaveland and Gurley, contra,
    contended, 1. That the charge, in relation to the quit-claim deed, was unexceptionable. It was made with reference to the facts of the case. The plaintiff introduced this deed to establish his title ; and the judge suffered it to go to the jury, for the purpose for which it was offered. His observations upon it, in his charge to the jury, must have impressed their minds with the idea, that the want of consideration, was, of itself, no objection to the deed. He was not requested to instruct them, that a quit-claim deed without consideration, is, under all circumstances, valid; and if such request had been made, the charge requested could not have been given ; for if the parties -had been disseised, such a deed would have been void.
    2. That the unacknowledged deed from Lathrop to Turner, and the judgment recovered by Miner against Hammond, were properly received in evidence, not to make out a title under the deed or the judgment, but to evince the character of the possession. For this purpose alone were they offered. Any other facts, or even the declarations of Turner and Miner, made when they respectively went into, or had, possession, which explained the intention of the parties, would be equally admissible. Whether a possession is adverse or not, depends upon the intention with which it is taken and held ; and this intention is to be discovered, by a view of all the circumstances of the transaction. If a man takes a deed of a piece of land, when he goes into possession of it; or if, when his possession is disturbed, he sues the wrong-doer ; it makes very little difference, so far as his intention is concerned, whether that deed be defective or not, or whether that suit be against a stranger or a party.
    3. That the right or title in question, accrued on the dis-seisin in 1766, when the person disseised was under no disability. By the lapse of fifteen years, without entry or assertion of right, that person “ and his heirs” were barred, within the body of the statute. Mrs. Cogswell not being the person to whom the right or title first accrued, is not within the proviso. It has been uniformly held, that if the statute has once begun to run against the person to whom the right or title first accrued, a subsequent disability in his heir, will not arrest its progress. Stowell v. Lord Zouch, 1 Plowd. 356. Doe d. Du-
      
      roure v. Jones, 4 Tenn Rep. 300. Cotterell v. Dutton, 4 Taun. ^ 830. Bunce v. Wolcott, 2 Conn. Rep. 27. Griswold v. Butler & ux. 3 Conn. Rep. 227.
   Hosmer, Ch. J.

The controversy between the parties, respects the title to the land, on which the trespass is declared to have been committed.

The plaintiff claims title from Elisha Lathrop and others, by deed from him to Simon Lathrop, from whom the estate descended to Martha Cogswell, a feme covert. She, with the consent'of her husband, devised the estate to certain of her children and grand-children, who granted it to Ebenezer Devotion, and he, by deed of bargain and sale, conveyed all the described tract, except ten acres, to the plaintiff; and the ten acres he released to him, by deed of quit-claim. The defendant, not admitting the legality of the last-mentioned deed, insists, that he, and those under whom he claims, have been in the adverse and uninterrupted possession of the premises,- for more than fifteen years.

A necessary link in the chain of the plaintiff’s title, is a deed of release, in which the only consideration is thus expressed ; “ for divers good causes and considerations.” Two questions arise on this point ; whether the above deed is valid, as no consideration is definitely set forth ; and if it is valid, whether the charge of the judge is not defective, inasmuch as he merely informed the jury, that a quit-claim deed might be good without consideration, but did not state to them, whether the deed of release in question, was of legal sufficiency.

That a deed of quit-claim, is a conveyance at common law, and valid without consideration, is now admitted. 4 Cruise’s Dig. 24. 1 Cruise’s Dig. 409. But, as this was a question seriously made and agitated at the circuit, it became the duty of the judge to express his opinion upon if to the jury. He informed them, that “ the deed might be good without consideration,”—and this is all that the motion states; nor are we authorized to conjecture on this subject, in the face of the statement, which the judge allowed, and which, we must believe, comprised the whole instruction given to the jury. Was this equivalent to the information, that the deed of release was valid ; and did the jury so understand it ? I think it was not; that the jury did not thus understand it; and that, at least, it left the subject in a light extremely equivocal, jury, instead of knowing that the deed was valid, if they gave the popular and accustomed force to the language addressed to them, were left to form their own opinion on this.all-essential point. Were I to propose the question, Is a certain act legal, and to receive a reply, that it might be so, I should not consider myself possessed of the speaker’s opinion. The answer would break off in the middle, and leave the mind in expectation of something more. I should listen to hear the reason why the act might be, and was not, legal. In short, the sentence would be imperfect; unadapted to convey an opinion ; and calculated to announce a doubt, or to waive an answer to the question put. The phrase, so far as it goes, is in the potential mode, which merely declares the possibility of action or being •, and is commensurate with the expressions— it may be, or it is possible,—and to nothing more. On this point, I have no imaginable doubt. The construction I have given to the language used by the judge, is not rigorous, but results from the grammatical and popular import of the words. A charge is ever imperfect, unless it conveys the intended sentiment so clearly, that men of ordinary sense and talents, may be presumed to be acqaainted with the opinion of the speaker. The

To the title of the defendant, founded on the adverse and uninterrupted possession of the premises, for more than fifteen years, several objections have been made.

The court admitted, in evidence, an unacknowledged deed, and the record of a judgment, to shew, that the persons under whom the defendant claims, were in by disseisin—thus to support his title, by exclusive and adverse possession. Adverse possession is a possession under colour and claim of title. 9 Johns. Rep. 179. 180. Any evidence, conducing to prove, that the possession was accompanied with a claim of title, and that it was the intention of the possessor, to hold exclusively for himself, was undoubtedly admissible ; and of this character is the testimony objected to. The foundation of the objector, is placed in a misconception of the purpose, for which the evidence was admitted. It was not adduced to establish a title, by force of the unacknowledged deed, or of the judgment between other parties; for to this end, it unquestionably would be incompetent. But it was good proof, to shew the nature of the occupancy, and that it was adverse. Even pa-rol declarations, accompanying an entry, or a subsequent act, have been held good evidence, to evince the character of á possession. Jackson d. Youngs & al. v. Vredenbergh, 1 Johns. Rep. 159. Co. Litt. 374. a.

The plaintiff also insisted, that notwithstanding the adverse possession, under which title was claimed by the defendant, commenced during the life of Simon Jjxihrop, yet as Mrs. Cogs-well, who took from him the estate by descent, was a feme covert, at the time her right of entry first accrued, and continued so until her decease, her heirs might enter at any time within five years after the removal of this disability. The judge charged the jury, that the statute having begun its operation, in the life of Simon Lathrop, would continue to run, notwithstanding the coverture of Mrs. Cogswell. Of the correctness of this opinion, I cannot entertain a doubt; nor will I enter into the discussion of a point so fully established. Under the statute of Fines, as well as the statute of 21 Jac. 1. c. 16. and our own act of limitation, this construction, so essential as it is to effectuate the intent of the laws referred to, has invariably been given. Stowell v. Lord Zouch, 1 Plowd. 356. Doe d. Duroure v. Jones, 4 Term Rep. 300. Bunce v. Wolcott, 2 Conn. Rep. 27.

On the whole, I am persuaded, that justice has been done to the plaintiff, in relation to all the matters complained of, except with respect to the imperfect charge of the judge, in regard to the deed of release ; and on this ground, solely, I would grant a new trial. <

Peters, J.

I concur in the opinion of the Chief Justice, except his criticism on the language of the judge on the circuit. The motion does not profess to give us the words of the charge, but merely states its substance ; and the question now is, whether the judge spoke positively, or hypothetically; or whether the charge was absolute, or conditional. The question submitted to the judge was, whether a quit-claim deed, without valuable consideration expressed, is valid between the parties. This question he was certainly bound to answer ; and, I think, he has done it. The motion states, that the judge informed the jury, that “ a quit-claim deed, without valuable; consideration expressed, might be good between the parties that is, that the law did not render such a deed void ; and so I think the jufry must have understood him •, for if the law made sach a deed void, it could not possibly be good.

But, as I concur entirely with his honour, in.thinking that justice has been done to the plaintiff, on all the other points, 1 am clearly of opinion, that we ought not to advise a new trial; for a quit-claim deed would avail nothing, against an adverse possession of fifteen years. In Depeyster v. The Columbian Insurance Company, 2 Caines, 85. 90. it is said, by Livingston, J. in delivering the opinion of the conrt, “ admitting a mistake inthejudge’s-charge, a new trial ought not always to be the necessary consequence ; it is not for every misdirection in point of law, that the parties should be put to the expense of further litigation. If the result from the testimony would probably have been the same, whether a particular direction had been given or not, it can be no reason for granting a new trial.” The same doctrine is laid down in Edmonson v. Machell, 2 Term Rep. 5. An application for a new trial,” said Ashhurst, J. in delivering the opinion of all the judges of England, “ is an application to the discretion of the court, who ought to exercise that discretion, in such a manner, as will best answer the ends of justice. There does not appear to be any ground for the defendant to call on the discretion of the court, to send this cause down to be re-tried, on a technical objection in point of law. And all the judges are unanimously of opinion, that, as complete and substantial justice has been done, there is no reason to grant a new trial.” If, then, a new trial ought not to be granted, on a mere technical objection in point of law, a fortiori it ought not to'be granted, on amere grammatical objection.

Chapman, Brainard, and Bristol, Js. were of the same opinion.

New trial not to be granted.  