
    Mary E. Sanger et al., Resp’ts, v. John C. Merritt, App’lt.
    
      (Court of Appeals, Second Division,
    
    
      Filed April 15, 1890.)
    
    1. Evidence — Ancient documents — Allotment of land by township.
    In the 17th century the town of Huntington succeeded to the right of the British Crown and of the Indians and became the owner of the land in dispute. The town became a part of New York, and as appears by the town records in 1792, the holders and proprietors of lands met and appointed as trustees five persons, who allotted a piece of land to John Hartt, which action was ratified at a meeting of the trustees of the township, and attested by the town seal. On the trial of this action to recover possession of part of said piece, these records were produced and several witnesses testified that they were the town records. Held, that sufficient foundation had been laid to render such records admissible as ancient documents.
    2. Same—Conveyance by town becobds—Statutes of fbaud.
    The allotment described in the records was not sufficient to transfer the title from the township to John Hartt, as it was in violation of § IX of the “act for the prevention 'of frauds,” Laws 1787, chap. 44, requiring transfer of estates in lands to be in writing.
    Appeal from a judgment of the general term of the second department, affirming a judgment entered on a verdict directed for the plaintiff.
    This action was begun December 7, 1881, by Henry Sanger, to recover possession of 259 acres of land in the town of Babylon (formerly Huntington), with damages for the wrongful withholding thereof from November 15, 1875. The plaintiff alleged that he was the owner in fee, and entitled to the immediate possession of the land. The defendant in his answer denied all of the allegations in the complaint except the 'allegation-that he was in possession, and alleged “ that he has for more-than twenty years last past been in the peaceable, undisturbed and lawful possession of said premises ; and that he is the true, lawful and sole owner of said premises, and. has been for more than twenty years last past.”
    The action was first tried at the Suffolk circuit, in April,' 1882, when the defendant had a verdict; but the plaintiff paid the costs, and took a new trial under the statute, which was1 had at the October, 1883, circuit, when the defendant again re-[ covered a verdict, on which a judgment was entered, which was reversed, and a new trial granted by the general term of the1 second department in March, 1885. 35 Hun, 669. The case was! again tried at the February, 1886, circuit, at which"'the jury was1 directed to find that the plaintiff had been the owner' of .the fee of the land in dispute since June . 21, 1871, and entitled to the possession thereof; and the damages, by agreement, .werelassessed af fifty dollars. A motion for a new. trial on the-minutes was denied^ and a judgment entered. JanuaryJlS, 1886,,the plaintiflLdied,. and the present plaintiffs succeeded'.to hisThteres^jand," were^_suE& stituted as parties plaintiffs in his.steadf Mh*DecemberAÍ8.8j2,iíhel order denying the motion for a new trial and the judgment were affirmed by the general term of- the second department, without an opinion, and a judgment entered, from which the defendant appeals to this court.
    
      Thomas Young, for app’lt; Gherardi Davis, for resp’ts.
   Follett, Oh. J.

The litigants agree that in the seventeenth century the town of Huntington, through the trustees for the freeholders and commonalty' thereof, succeeded to the rights of the British crown and of the Indians, and became the owner of the land in dispute and of the adjoining lands. This town was settled from New England and it sent delegates to, and was governed by the general court of Connecticut until December 1, 1664, when Long Island was adjudged to belong to New York by a royal commission and the governor and commissioners of the general assembly of Connecticut, 3 Colonial History of N. Y., 27,197; Smith’s History of N. Y., 52, and March 1, 1665, two deputies from every one of the towns on Long Island assembled at Hempstead, and acknowledged the authority of the colony of New York. Smith’s History of New York, 55 ; 3 Colonial History of New York, 91. It was a custom of the early inhabitants of New England for several persons to acquire and settle a tract of wild land and erect it into a township, under the form of town government peculiar to that section. Part of the land was allotted to the original proprietors, which was thereafter held in severalty, • though sometimes with restrictions in regard to alienation, and the undivided lands were held and managed by the trustees for the benefit of all. Frequently additional lands were acquired by the town in the name of the trustees, as was done by the town of Huntington. From time to time parcels of the lands held in common were allotted to such new settlers as were admitted into the township, upon such terms as were agreed upon, and the allotments entered upon the records of the - township. In some of the New England states lands so held could be partitioned by vote, and perhaps by vote vested in a new settler, without a conveyance, Coburn v. Ellenwood, 4 N. H., 99; Corbett v. Norcross, 35 id., 99; Folger v. Mitchell, 3 Pick., 396, but it is unnecessary to ascertain the law of Connecticut on this subject, for Huntington became a part of New York long before the allotment to Hartt was made.

It appears by the records of the town of Huntington that the holders and proprietors of lands (including those in question), met July 28, 1792, and unanimously appointed as trustees five persons, who, or the major part of them, were to act for the proprietors in respect to such lands.

The following is an extract from the records of the town:

April 12, 1793.
“Laid to John Hartt one other piece of land south of the single pine on the south side of land laid out to the heirs of Israel Conklin, deceased, or to. James Pearson if he proves his title, running from thence southerly along the road of the said purchase, 216 rods; then west on both sides of the new highway, •which is fourteen chains from the old road of the purchase containing 259 acres laid out by us,
“ John Hartt,
“ Abijah Ketcham, Surveyor.
“ Ebenezer Hartt,
“ Zebulon Ketcham and
“ Silas Sammis.”

This resolution, or allotment, is signed by four of the five trustees appointed July 28, 1792. A plat of the land so laid out was entered upon the record.

• February 27, 1797, the trustees of the township met and by a resolution signed by the president of the board, attested by the seal of the township and entered in the town records, ratified this allotment of land.

Upon the trial the defendant objected to the admission of these records in evidence, upon the grounds, (1) that sufficient foundation had not been laid to render them admissible as ancient documents, and (2) that they were insufficient to transfer the title to real estate. These records were authenticated by the seal of the township, and several witnesses testified that they were its records,-. no witnesses testified to the contrary, and the evidence in respect to their custodians for as long a period as the memory of the witnesses ran, raised no presumption, nor even a suspicion that the records were not genuine. The first ground of the objection was not tenable. Tolman v . Emerson, 4 Pick., 160; Goodwin v. Jack, 62 Me., 416; Proprietors v. Rogers, 1 Mass., 159; Rust v. Boston Mill Corporation, 6 Pick., 158, 165; King v. Little, 1 Cush., 436, 440; Whar. Ev., §§ 198, 643.

Did the allotment described in the records transfer the title to-the land from the township to John Hartt ? But for the statutes shortly to be considered, the court might, perhaps, presume that possession was delivered at the time of the allotment, and hold a transfer so made sufficient to vest the legal title in John Hartt, for prior to June 24, 1677, when the English statute of frauds took effect, English land was transferable by word of mouth, with livery of seizin. 2 Black. Com. 297; 1 Steph. Com. (8th ed.), 502, 505 ; Williams R. P. (12th ed.), 147; City of Boston v. Richardson, 13 Allen, 146; Spurr v. Bartholomew, 2 Met., 479; Rust v. Boston Mill Corporation, 6 Pick., 158.

The third section of this statute, 29 Car. II, chap. 3, provided : “III. And moreover, that no leases, estates or interests, either freehold, or terms of years, or any uncertain interest, not being copyhold or customary interest of, in, to or out of any messuages, manors, lands, tenements or hereditaments, shall at any time after the said four and twentieth day of June, be assigned, granted or surrendered, unless it be by deed or note in writing^ signed by the party so assigning, granting or surrendering the same, or their agents thereunto lawfully authorized by writing, or by act and operation of law.”

It is unnecessary to consider whether this statute was in force in the colony of New York, and prevénted land from being transferred orally or by parol, with livery of seizin, 1 Reed Stat. Fr., § 2; 1 R. L., 1813, 526, § 30, note, for, previous to this allotment, an act entitled “An act for the prevention of frauds,” was passed. Chap. 44, Laws, 1787 ; 2 J. & V., 88; 1 R. Acts, 79 ; 1 R. L., 78, the ninth section of which provided:

“ IX. And for the prevention of many fraudulent practices, which are commonly endeavored to be upheld by perjury and subornation of perjury, be it enacted by the authority aforesaid, that all leases, estates, interest of freehold, or terms of years, or any uncertain interests of, in, to or out of any messuages, manors, lands, tenements or hereditaments made or created, or hereafter to be made or created, by livery and seizin only, or by parol, and not in writing and signed by the parties so making and creating the same, or them agents thereunto lawfully authorized by writing, shall have the force and effect of leases, or estates at will only, and shall not, either in law or equity, be deemed or taken to have any other or greater force or effect, any consideration for making any such parol leases, or estates, or any former law or usage to the contrary notwithstanding. Except, nevertheless, all leases not. exceeding the term of three years, from the making thereof, whereupon the rent reserved to the landlord during such term, shall amount unto two third parts, at the least, of the full improved value of the thing demised.”

¡Nor can the claim that John Hartt acquired the title be supported on the theory that he was one of the proprietors of the land, and that the allotment vested the legal title in him through a partition between the owners, because there is no evidence that, he was one of the proprietors, or even a freeman of the town prior to the date of the allotment. Had he been one of the proprietors, it is difficult to see how he could have acquired a legal title through a partition, for the proceedings disclosed by the record were not in accordance with the statute then in force regulating partitions. 1 Van Schaack, 403, 416, 515 ; 2 L. & S., 237, 256; 1 J. & V., 201. Nor would the allotment have been a valid, parol partition unless the allotment had taken exclusive possession of the land. Wood v. Fleet, 36 N. Y., 499 ; 1 Wash. R. P., 430, 12. . There is no evidence that he ever entered on, claimed to own, or exercised the slightest dominion over any part of these premises. At an early day he removed from Suffolk to Ontario county, where he died in 1831, leaving a will, in which no reference is-made to these lands. ¡No part of the disputed premises has ever been cleared, except about three acres in the northeast corner, nor has it ever been enclosed, built upon or improved in any way. The clearing is shown to have been done by persons claiming under the defendant’s chain of title, and so it cannot be presumed that it was done by any of the persons through whom the plaintiffs claim. This brings us to the conclusion that the plaintiffs, failed to show that John Hartt ever held the legal title to the land in dispute. There is no evidence that the persons through whom, the plaintiffs claim were ever in possession of this land, or any part of it The plaintiffs having failed to establish a legal title, the court' erred in refusing' to grant the defendant’s motion for a non-suit.

The judgment should be reversed and a new trial granted, with costs to abide the event.

All concur, except Brown, J., not sitting.  