
    The Overseers of the Poor of the Town of Pompey against the Overseers of the Town of Laurens.
    _ p., by a wri‘‘¡al’ “assigned feef" for "sixty indie “own" of X M., tbe consi■deration 'vhich.imdLd quit-claim deed by c. to him, supposed, at worth 70o dob temarás; ’apEareno^tifle ^nd,íorreleí chtngef mu, acquire a'title,1 blI"to thííeasé so assigned, so -as to enable him to gam a mint; foíthe -quit-claim by trim of land in ÍJ, being of no value, he could not be deemed to have paid the sum of seventy-jive dollars, bona Jide, or any thing, as the consideration of the purchase, so as to gain a settlement, under the act, 1 ¿2. L. 280. sess. 56. ch. 78. S.-4.
    TWO Justices of the peace of Laurens made an order for the removal of Elizabeth Curry and her children, as paupers, from the town of Laurens to the town of Pompey, as the place of their last legal settlement. On an appeal, to jjje Couft of Sessions of Otsego county, the order was confirmed, and the appeal dismisséd. —’ “““ — “n- — At the hearing before the Sessions, it was admitted, that Samuel Curry, the bus-band, was formerly settled in the town of Pompey, ■ It appeared in evidence, that after such settlement, William Pettingal assigned to Curry, a lease in fee of sixty acres of land in the town of Milford, and in consideration thereof, received from Curry a quit-claim deed of land in the Hardenbergh patent. This assignment was not sealed. At the l*me Pettingal took the quit-claim, he supposed the title to land >n the Hardenbergh Patent was good, and worth seven hundred dollars. Neither he nor Curry had ever * been m possession of the lauds.
    
      Joseph Gardner, a witness, testified, that he had investígated the title to the land conveyed by Curry to Petlingal; that Curry had no pretence of title, nor had he ever been in possession ; that at the time Curry conveyed, the lands were held adversely, under title derived from George Ludlow.
    
   Woodworth, J.

delivered the opinion of the Court. The first objection is, that the order is defective : The statute .directs that the pauper be conveyed to the constable of the first town in the adjoining county, or in such other manner, by the nearestand most convenient route, as the justices shall think fit, to the place of his legal settlement. The order in this case directs the constable to convey the paupers frona and out of the town of Laurens, to the town of Lisbon, and from thence to the town of Pittsfield, and thence,, in the nearest direction, to the town of Pompey. Whether the route prescribed by the statute has been followed or not, the town of Pompey cannot allege this as a ground to quash the order.

The justices had jurisdiction; and, admitting they may have mistaken the nearest route, this was not a question ber tween them and the overseers of Pompey. Although there is no town of IAsbon in Otsego county, (the former name being changed to New-Lisbon,) yet it will be seen that taking the paupers to Pittsfield, and from thence the nearest direction to Pompey, he would pass through the nearest town in Chenango, the adjoining county, and thus substantially satisfy the xvords of the statute, which gives a discretion to the justices, to direct " by the nearest and most convenient route.” The objection does not appear to h.ave been made in the Court below, and cannot be listened to here.

The next question is, did the pauper acquire a. legal title to the land in Milford? On the authority of Jackson, ex dem. Goerck, v. Wood, (12 Johns Rep. 73.) I think he did not. In that case it was decided, that a conveyance of a freehold, or estate in fee, must be by deed or writing under seal.

If Curry did not acquire a legal title, did he, by reason of the assignment and giving a quit-claim of the Hardenbergh lands, acquire an itidefeasible equitable interest to have the title perfected 1 According to the cases in 14 J°hns ReP- 199- and., 469. it is necessary to make out the payment of the whole consideration money, and in order constitute a settlement, the sum of seventy-five dollars must have been bona fide paid. The consideration, such ag wag^ may be considered as wholly paid. Pettingal took a quit-claim deed for the lands in the Hardenbergh patent, in exchange for land in Milford. No other consideration is stated or pretended. He then supposed the title was good, and that the land was worth seven hundred dollars. He did not know that Curry intended to defraud him.

Now, as it turns out, that Curry never had title or possession of the lands, but that they were held adversely, at the time he quit-claimed, would a Court of Equity, under such circumstances, compel Pellingal to perfect the title to the land ? Every question of this kind is under the sound discretion of the Court, to be regulated by principles of equity. In Osgood v. Franklin, (2 Johns Ch. Rep 23.) the. Chancellor observes, “ though inadequacy of price is not a ground for decreeing an agreement to be delivered up, or a salé rescinded, (unless its grossness amount to a fraud,) yét it may be sufficient for the Court to refuse to enforce performance. It is not an uncommon case for the Court to refuse to enforce for inadequacy, and, at the same time, refuse to rescind. The two cases admit of very different views and considerations.” As the consideration in this case was not merely inadequate, but a nullity, it cannot be doubted that equity would not lend its aid to perfect the title, and if so, the equitable estate in Curry is defective, and cannot lay the foundation of a settlement. But there is another defect equally fatal. The appellants were bound to prove that Curry paid seventy-five dollars, bona fide, toward the purchase of the lot in Milford. This has not been done; for the title conveyed by Curry was of no value. The question does not depend on the supposition of the party that the land was worth seventy-five dollars, but on the value, in truth, and in fact, of the title conveyed. If this is not the rule to be applied, a settlement may be gained, as appears to me, in opposition to the letter and Spirit of the statute. The probf of value is vague and unsatisfactory; all that is stated is, that Pettingal supposed, at the time he took the quit-claim, the lands were worth seven hundred dollars : From the facts, it may be inferrred, that he never had seen the lands, but took them at risk. He has given no reasons for this estimate. Without something more, I am not satisfied that the value has been sufficiently shown: PettingaPs testimony on this point is little more than conjecture.

On the whole, we are of opinion that the order of the .Sessions must be affirmed.

Order of Sessions affirmed;  