Jackson, ex dem. Sprague and others, against Bowen

Jackson, ex dem. Sprague and others, against Bowen. UTICA, Aug. 1826. Ejectment for a part of lot No. 5, in Lysander, tried at the Oswego circuit, in December, 1824, before Throop, C. Judge. At the trial, the plaintiff insisted that the defendant had entered upon the premises in question, under a contract to purchase them of the lessors of the plaintiff. A contract of purchase was accordingly given in evidence ; buí the testimony was conflicting upon the question vvhe-tlier the defendant in fact entered under it; he insisting that he entered and held possession under a contract with one Camp, whose claim was adverse to that of the lessors. The plaintiff then went to his title, and proved letters patent for lot No. 5 to Godfrey Byerd, a soldier, for revolutionary services, which passed the secretary’s office August 7th, 1790. He then proved a conveyance of the lot in fee from Byerd to Reuben Murray, dated June 9th, 1792, which was duly deposited in the Albany clerk’s office according to the acts of January 8th and March 27th, 1794. (1 R. L. 209,11.) From Murray he deduced title in fee to the lessors of the plaintiff. The defence was a deed from the soldier to Edward. Cumpston, dated the 5th of November, 1783. This deed conveyed all the soldier’s expected bounty lands in fee to Cumpston; with a power of attorney to Jeremiah Van Rensselaer and Abraham Ten Eyck, to convey to Cumps-ton in fee, and a covenant that when a patent should issue for the soldier’s lands, they (his attorneys) should convey them in fee simple to Cumpston. The defendant then proved a deed executed by the attorneys, reciting the power, and dated the 23d of September, 1790, from the soldier to Cumpston in fee. This deed, executed by the attorneys, was deposited pursuant to the statutes before cited ; but the deed constituting them attorneys, was not-The defendant claimed under the Cumpston title ; shew» ing several intermediate conveyances of title from him t& one Lejfingwell, with whom Camp contracted to purchase ; and under whom the defendant, as before mentioned, claimed to have taken possession. To render 0f °nmii-itary lot, exe-januars sth, a sequent pur-3^6⅛8 immediate deed been aeposit-^’the'aot^f 1794, (1 R.L. Ae power °f att0™eb ⅛ was execut-ec!- The judge directed the jury to find for the pU.' . f: if they believed that the defendant took possession nuder the lessors; but if they believed that he took possession under Camp, and found the deed to Cumpston to be genuine, they should then bring in their verdict for the defendant ; it not being necessary that the deed containing the power should be deposited. Verdict for the defendant. A case was made ; and it was agreed, that it might be turned by either party into a special verdict; and that if this court should be of opinion that the deed to Cumpston containing the power, w as void as to the deed of June 9th, 1792, by reason of not being deposited, that then the judgment should be for the plaintiff. But if the court should be with the plaintiff on any other ground, a new trial to be granted. If they should be with the defendant on all the grounds, then judgment to be entered for the defendant. J. Platt, for the plaintiff. The deed from the soldier, containing the power of attorney, not having been deposited, was void ; and all title derived from it was inoperative as against the lessors of the plaintiff, who claimed under a subsequent deed from the soldier. If notice only had been designed by the statute, (1 S. L. 209,) a mere registry would have been enough. The legislature had a further object. That was to detect frauds ; and they required the original instrument to be deposited with that view. The mischief could not be reached without this being done. Indeed the detection of frauds was the declared object of the statute. The deed from the attorneys was an act of supererogation. The whole title depends on the original deed to Cumpston. It passed the estate under the statute, (sess. 13, eh. 59, s. 5, 2 Greenleaf, 333.) That act was remedial, and should be construed liberally. The original deed, then, is not to be regarded as a mere power of at-tomey ; but as a conveyance in itself. It became valid, as such, by the act last cited; and when the act of 1794 passed, requiring the deposit of military deeds, it extended to the deed containing the power, in this view, Jackson v. Neely, (10 John. 374,) on which the circuit judge relied, does not dispose of the question. That was the case of a naked power. But how stands the authority of that case ? Jackson v. Hubbard, (1 Caines, 82,) is directly opposite in principle. The former regards the statute as a mere registering act; the latter declares its object to be the detection of frauds and forgeries. Jackson v. Hubbard, was entirely overlooked in Jackson v. Neely; although the former wTas much more fully considered. Even a naked power is plainly within the spirit and intention of the statute. It is a matter which affects the title ; and any paper having this effect must be deposited. Jackson v. Neely was virtually overruled by the court of errors in Wendell v. Wadsivorth, (20 John. 659.) A. Van Vechten, contra. The original deed to Cump-ston, not being able to reach the soldier’s land by any definite description, provided for this defect, by a power to convey when the patent to the grantor should be executed. The defendant’s claim is, therefore, under the subsequent deed, given in virtue of the power. Whether the first deed passed the title or not, there is nothing to prevent the soldier giving a second ; and both are prior to the deed under which the plaintiff claims ; so that the only question on the merits is, whether the power should have been deposited. A power of attorney is no part of the conveyance ; but a mere authority to convey. One object of the legislature must have been notice. The deed of 1730 contains all that is necessary, to enable the party to look into the power of attorney. The power and all the particulars are recited ; and names are given. Jackson v. Neely is full to this point. Wendell v. Wads-worth did not mean to overrule Jackson v. Neely. So lar from it, this case is not mentioned in Wendell v. Wadsworth. This cause was decided at May term, 1020. [MAJORITY — Savage, Ch. Justice.] Curia, per Savage, Ch. Justice. The doctrine that, he who enters under the title of the lessor of the plaintiff, cannot afterwards dispute it, is not controverted in this case ; but the fact is denied, that the defendant did so enter. The jury, by their verdict, have found that the defendant entered under Camp. On that fact, the evidence Was contradictory, and the verdict should not be disturbed in this respect. The important question is, whether the power of attorney from Byerd to Van Rensselaer and Ten Eyck should have been deposited. The object of the legislature, in passing the depositing acts, of 1794, as declared in the preamble to the act of January 8th, 1794, was, to afford every possible facility to the detection of forgeries. It was notorious, that many spurious deeds were in circulation, purporting to convey those lands, which were then becoming valuable ; and had been, since the revolutionary war, the subject of much speculation. To prevent litigation, and to enable claimants not only to know what elder titles were in existence, but to ascertain their genuineness by actual inspection, were the objects of the act. If I am right in this, it would seem to follow, that a deposit of a deed, executed by power of attorney, without the power of attorney itself, would be insufficient. One object was, to ascertain the genuineness of the signature of the soldier. How is that accomplished by depositing his signature avowedly written by another ? As a conveyance, the deed of 1783, is clearly void for not being deposited ; and if, as a power of attorney, it need not be deposited, the object of the legislature is frustrated. A deed executed under a forged power of attorney, gave as much notice of the claim, as if the power of attorney had been genuine ; and depositing such a deed has the same effect as if supported by a true power. This construction of the act may be consistent with the idea, that the intention was merely to give notice ; but totally repugnant to the de-dared object, which was to detect frauds and forgeries. When this court was first called upon to give a con-structionto the depositing acts, in Jackson v. Hubbard, (1 Caines' Rep. 82,) it was expressly declared, that the object, of the acts was the prevention of frauds, by facilitating the means of discovering forgeries. And it was then decided, that though a deed was recorded in the secretary’s office, and the clerk’s office, in Onondaga county, if not deposited according to the acts of 1794, it was void and inoperative against a subsequent purchaser. It was remarked, that the examination of a mere record, could not answer the object of the act; and yet an inspection of a record is quite as useful to ascertain the genuineness of the original, as the examination of a deed by an attorney, to ascertain the genuineness of his power, when that power is not produced. The court there say, “ nothing short of an inspection would, in many cases, answer the purpose and it might with equal propriety have been said, in all cases, nothing but actual inspection would .answer. The next case is Jackson v. Neely, (10 John. 374,) where this precise question came before the court. They say, however, it is unnecassary to decide, whether the power should have been deposited ; “ for admitting it to have been requisite to deposit the letter of attorney with the conveyance; yet, as the conveyance was duly deposited, and as it recited the letter of attorney by virtue of which the conveyance was made, the subsequent purchaser had notice of the power by means of the recital, and is affected equally as if the power itself had been deposited.” This decision was made in October, 1813. The case of Jackson v. Hubbard, decided in May, 1803, was not referred to by either the counsel or the court; and it is manifest that the two cases are at variance with each other; the one proceeding on the principle that the object of the deposit was to detect frauds and forgeries ; the other, that it was merely to give notice, which a record or registry would have done as well. That the latter was the principle upon which the court acted in Jackson v. Neely, is manifest from what is said by chancellor Kent, in Wadsworth v. Wendell, (5 John. Ch. Rep. 229.) He presided in this court, when Jackson v. Neely was decided; and acting upon the same principle in Wadsworth v. Wendell, he says, “ the deposit of these conveyances was intended by the legislature to be notice to all subsequent purchasers, of their existence and contents; and the deposit of them would have been in a degree useless, if it was not intended to operate as notice.” lie adds, that the deposit was a substitute for registry, and equivalent to recording. This doctrine was overruled by the unanimous opinion of the court for the correction of errors in the same case, when carried up on appeal. Spencer, Ch. J. who delivered the only opinion, says, “ the construction put upon this statute by the chancellor, is such as was never anticipated by the profession, nor imagined by the legislature ; and with the utmost deference, I must say, that in my judgment, it cannot be supported.” He subsequently adds, “ when, therefore, the legislature required these unauthenticated, unacknowledged, unproved and unrecorded deeds, to be deposited by a fixed day ; and declared that if they were not thus deposited, they should be adjudged fraudulent and void against subsequent purchasers for valuable consideration, they could not have intended to give greater effect to them, than they had before,” &c. or to require subsequent purchasers to take notice of them. This case is no otherwise applicable here, than as it decides expressly, that the object of the legislature was not to make the deposit a notice to subsequent purchasers ; but merely to enable those interested, to prevent frauds and detect forgeries. Such being the object, as declared by the legislature, and adjudicated by our highest court, the case of Jackson v. Neely is virtually overruled. The object of the depositing acts, then, being an inspection of the original deeds and signatures, of those who had drawn these lands, and of whose signatures it was alleged there were many forgeries, the depositing of the deed executed by attorney, was not a compliance with the act. The power of attorney being void by force of the acts of 1794, the deed founded upon it falls; and with it, all pretence of title in the defendaut, or out of the lessors. They are, therefore, entitled to judgment. Judgment for the plaintiff.