Aaron Roggen, Appellant, v. John Avert, Respondent

Aaron Roggen, Appellant, v. John Avert, Respondent. (Reargued May 26, 1875; decided June term, 1875.) This was an action of ejectment. (Reported below, 63 Barb., 65.) Both parties claimed title under Mary R. Howe, a former owner. Plaintiff claimed under a deed not acknowledged or attested by a subscribing witness. Defendant was a purchaser from a devisee of Mary R. Howe. The principal question discussed was as to whether, under the provision of the Revised Statutes (1 R. S., 738, § 137) declaring a grant in fee not duly acknowledged or attested by at least one witness, ineffectual as against a purchaser, plaintiff could claim under his deed as against a purchaser who had notice^ actual or constructive, at the time he purchased of plaintiff’s deed. Upon this point the commissioners (Reynolds, 0., not sitting) were evenly divided; Lott, Oh. 0., 'and Earl, 0., holding that the word “ purchaser,” was used in the section, unqualifiedly and included any purchaser. Dwight and Gray, CO., holding it only included a purchaser in good faith. Gray, C., however, held with the two former, that the evidence tended to show that defendant was a purchaser in good faith without notice, and that the trial court erred in refusing to submit that, question to the jury. Samuel Hcund for the appellant. Hervry Smith for the respondent. [MAJORITY — Earl, C.,] Earl, C., reads for affirmance; Lott, Ch. C., and Gray, 0., concur; Gray, C., upon the last ground discussed in the opinion. Dwight, C., reads for reversal; Gray, C., concurs in the first ground discussed; Reynolds, C., not sitting. Order of General Term affirmed and judgment absolute directed against plaintiff: