
    Jacob ex dem. Paine and Morris vs. Smead.
    
      Windsor,
    
    September, 1791.
    Grants of land iu this State by the Governor of New-Hampshire, while this territory was within that Province, are in their construction and operation Royal Grants, and on a surrender of such Grant, the King was in of his former right, and might, at his pleasure, Grant the same lands again, and such second Grant, wonld be valid.
    A surrender of a New-Hampshire Charter to the Governor of New York, after this territory was annexed to that Province, enabled him to re-grant the same lands, and such Grant made in confirmation of the Right under the Nesv Hampshire Charter is valid.
    Such surrender may be proved by parol. The refcital in such confirmation,- of a surrender of the New-Hampshire Charter, is frima facie evidence of such surrender. A long acquiescence of the New-Hampshire proprietors under the confirmation Grant, will be construed a waiver of the Grant under New-Hampshire and a confirmation of the Grant under New-York.
    EJECTMENT for lands in Windsor.
    
      Plea — The General Issue.
    On trial the plaintiff gave in evidence an office copy of a Charter under New-Hampshire, of the township of Windsor, in which Simeon Chamberlain was as a grantee, a deed from Chamberlain to J. Willard, dated'July 16th., 1761 — from Willard to Israel Curtis, 3d October, 1767 — from Curtis to William Smead, 1st May, 1770— a power of attorney, Dec. 30th, 1771, from William Smead and others, proprietors under the New-Hampshire Grant, to N. Stone, for the purpose of authorising him to procure from the Governor of New-York, a confirmation of their claims in Windsor, either in their names, in the name of Stone, or in the name of any other person or persons as he should think proper.
    The N. Y. Charter reciting that the N. H. Charter was surrendered, &c. was dated the 2,8th March, 1772, to N. Stone and twenty-one other persons, a release from the other grantees to Stone, dated the 31st March, 1772, a deed from Stone to Henry Cruger, April, 1772, of three thousand acres of land in Windsor, which was sold by agreement of the New-IIampshire proprietors tó defray the expenses of the New-York Grant. The will of Henry Cruger, who is since dead, dated June 11, 1799, executed in due form, in which, his executors are empowered to sell all, or any part of his lands in America, in fee. This will had been proved in England, where the testator died, and was recorded in Windsor,.Nov. f, 1787-A deed from two of the executors to the lessors of the plaintiff, dated 23d April, 1787, acknowledged and recorded.
    The land demanded is one hundred acres, parcel of the three thousand. A receipt from W. Smead to N. Stone, for a deed given to himself and a third person, of his, W. Smead’s proportion of land in Windsor, under the New-York Grant. It was objected by the defendant’s counsel, that the receipt was not p'roper evidence to prove a conveyance.
   By the Court.

It is not designed to prove a conveyance from W. Smead. Grantees under a former Charter might surrender to the King, without deed, and may be bound by acceptance of, and acquiescence under a second Grant, without deed.- The receipt may be evidence of such acceptance and acquiescence.

Several witnesses proved, that there was a general acceptance and acquiescence in the New-York Grant, and by W. Smead in particular. It did not appear that W. Smead, who is since dead, did, in his life-time, make claim to the lot in question, which was divided to the Chamberlain right under New-Hampshire. The defendant claims, as heir to W. Smead, and has taken possession since his death.

It was conceded, that the defendant is son and heir to W-. Smead. No evidence was produced on the part of the defendant.

Chipman, Ch. J. The right nowin question, as far as relates to the operation of the Charters, must be determined agreeably to the law then in force, which was the common law of England.

The Governor of New-Hampshire, while this territory was under that jurisdiction, and after the transfer to New-York, the Governor of that province had a power to grant such lands, as were then in the right of the King. These grants were not made in the personal or even jurisdictional right of the Governors, but by royal authority, given for that purpose; and they are to be considered, in their construction and operation, as royal grants. The King was, in view of the law, the ultimate owner of all the lands within his dominions, and had the reversion in himself. An estate in fee, the highest right which a subject could have to lands, was said to be derived out of the King’s right, and to be subordinate to that right.

Agreeably to this doctrine, a surrender might be made to the King, of a former grant. On a surrender, the King was in of his former right, and might grant again as he pleased.

The plaintiff, in this case relies, that the New-Hampshire Charter of the town of Windsor, was surrendered into the hands of the Governor of New-York for the Crown; and that the letters patent issued in consequence, by that Governor, acting for the Crown, and intended to operate by way of confirmation to the claimants under the former grant, were good and valid.

The act itself, by which the surrender was made, is not produced, The proof of a surrender of the New-Hampshire Grant, arises from the power given to Stone, the agent, from the recital contained in the .letters patent of New-York, which we think is good ground of presumption, and, indeed, prima facie evidence of a surrender. And from the acceptance and long acquiescence of the New-Hampshire proprietors, under this grant, it should seem, that the acceptance and acquiescence alone, which must have involved almost the whole property of the land in town, would be construed a waiver of the former grant, and a confirmation of the latter.

It may be further observed, the original Charter of New-Hampshire has not been produced, and it is agreed, that it was lodged in the office of the Secretary of the Province of New-York, previous to issuing these letters patent, and that it remained in that office.

The defendant in this action stands in the place of his father, William Smead, who claimed the premises under the grant of New-Hampshire, was a proprietor of several rights, or shares, and was one of those who executed the power to Stone, to procure a confirmation from the Governor of New-York. It is in evidence, that W. Smead accepted from Stone, a title to lands in Windsor, to himself and vendees, in full for his claim under the former grants, in part, for the same lands which he formerly claimed, and in part for other lands, the benefit of which he enjoyed and left to his heirs; for it will be observed that under the New-York Grant, the whole property was vested in Stone, in trust, that he might convey to every one, according to his right, and that the division, which was made under the New-Hampshire title, was not then taken to have any legal efficacy, but served only for description. Had the question arisen between a New-York claimant and a claimant under New-Hampshire, who had disagreed to these proceedings, and refused any benefit under the second grant, it might have had another consideration ; at least, it would have stood in a more favourable light. The Governor of New-York, and the authority of that Province, were guilty of the highest oppression and injustice toward the New-Hampshire grantees. They held the titles derived through the Governor of New-Hampshire to be void. They were able to enforce this opinion by violent laws and by the arbitrary decisions of their Courts. In consequence of these measures, they extorted large sums of money from the New-Hampshire grantees and settlers, for what they called a confirmation. This was practised upon the proprietors of Windsor. It is insisted that the injustice of the demand ought to invalidate the New-York Grant. It is wholly a new doctrine, that the greatness, or, if you will, the enormity of the consideration given, should invalidate a grant. If it be not a legal reason, it is, certainly, a favourable argument for the grantees, in support of their grant.

Verdict for the plaintiff.  