196
l"BDERALBEPOBTEB,
vol.
40.
ahead as it approached the hand-car, and no one on the train saw it till within two or three rods of it. The trackmen supposed the train would slow up as it approached them, in obedience to the warning, and came so near it before stopping to take .the hand-car the track that the boss saw it would be struck by the train before they could get it off, and told the IDen to run it the other way. They tried to do so, but could to get away from the train, and he directed not move it fast them to abandon it. In jumping from it, Clary was thrown under it, the engine struck it, and he was instantly killed. The statutes of the state provide that when the death of a person is neglect, or default as would, if death had caused by such wrongful not ensued, have entitled tHe party injured to maintain an action therefor, the person or corporation that would have been liable if death had not ensued shall be to an act,on1n the name of the personal representative for'the benefit of the wife and next of kin, and that such given as.arejust, with reference to the pecuniary injury damages may resulting from suuh death to them. R. L. Vt. §§ 2138, 2139. This action is brought uponlthis statute, for the benefit of the brothers and s\sters, as nex.t Of kin, and has been tried by the court upon waiver in writing of a trial by jury. '1'he claims that Clary was negligent in remaining so long u!pon the car, and in jumping from it, and thereby contributed to tpe injury; that the collision was caused by the negligence of the flagman, a fellow-servant. with Clary, in giving wrong information to the trainmen about where the hand-car would be met; and that, if it was caused by negligE:l1ce o(the trainmen,all were so fellow-workmen with Clary that the defendant is not liable to his representative for it. . .Clary coUld see the train coming, and could have got out of its way; but, with'J,the'others, he relied upond ue respect ofthe trainmen to the f;1.ag, and to the directions of the boss, for safety; and, in view of what he had a right to rely upon in those respects, he does not appear to have been negligent of duty to tlitnself or others in staying at hi\! place on the car as he did. He was moving backwards with the car, working it, with the others, to his utmost strength, when directed to abandon it; and appears to have been thrown before it, by a misstep, caused by haste in turning and jumping, made necessary by the nearness of the train, and ledges of rock which prevented 'jumping off·ftomthe side of the car on which he was. Natural instinct would impel him to do what he could to save himself, and nothing shows that he did not obey it. , The testimony is ,conflicting as to what the man who carried the flag told those in charge of the train about where the trackmen and hand-car would be. Whatever that was j the flag of the sectionmen itself was a. warning that they were on the track somewhere near, and wereto be approached with· and it would be in force from the time when the flag was observed;,until they should be passed. To rUn the train towards them, after that warning, without keeping any lookout ahead for them, was a. neglect of duty required for their safety as well as for that of the train. This negJ.ig0nce appears to have caused the collision, and the in-
HOWABD tl. DELAWARE &: H. CANAL
co.
197
jury to Clary, without any contributing neglect of duty on his part. If the flagman contributed to the happening of the collision by giving wrong information, it would not have happened but for the negligence of those in charge of the train; and whoever is chargeable for that is liable forits consequences to Clary. Railroad {h. v. Barron, 5 Wall. 90. The question of law whether the defendant is liable to its trackmen done to them by negligence of those in charge of its trains for is presented by these facts. If this question was· to be determined by the decisions of the court of last resort of the state, that in Davis v. Rail· road Co. appears to be the latest and most apt. 55 Vt. 84. It appears to hold, in effect, that a railroad company in the state is liable to its trainmen for the negligence of those it has placed in charge of its tracks. It overrules, in view of intervening decisions of other courts, Hard v. Railroad {h., 32 Vt. 473, which classed aU persons employed in maintaining the truck and machinery of railroads and operating their trains as fellow-servants, for injuries to whom by negligence of each other the companies were not liable. "If the company is responsible to trainmen for the negligence of those in charge of the track, that it should be held responsible to trackmen for the negligence of those in charge of its trains would seem to directly follow. But the courts of the United States are not bound by the decisions of the courts of the states upon questions of general law like this, although they are entitled to and re.ceive the highest respect. Boyce v. Tabb, 18 Wall. 546; Chicago v. bins, 2 Black, 418. This court is, however, in duty bound to follow the of the supreme court of the United States upon all such qmsL"om. 1'hat court has held that a railroad company is liable to its trainmen of one train for the negligence of those whom it haS placed in charge of another train, and of the same train. Railway Co. v. Ro88, 112 U. S. 377, 5 Sup. Ct. Rep. 184. This decision appears to have been made by a bare majority of the court, but it stands uureversed and unshaken, and is equally binding here with those that are unanimous. Trackmen are no more co-laborers with trainmen than the trainmen of one train are with those of another train on the same road, and not so much so as trainmen of the same train are. Those in charge of this train were placed there, and clothed with that authority, by the defendant. They acted for the defendant in the exercise of the control given them over the movements of the train; and their negligence in that behalf appears, according to this decision of the supreme court of defendant. The the United States, to be the negligence of pIes of this decision lead to the same conclusion as those of the latest decision on this subject of the highest court of the state, as cited. In Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. Rep. 322, a brakeman of one train appears to have been held to be so the fellow-servant of the engineer of another train of the same company as not to be en. titled to recover of the company for injuries occasioned by his negligence. That engineer does not appear to have been clothed with any of the authority of the company about the moving of the engine or trainj and in that respect it differs from the later case. In the case under
· FEDERALREPPRr'l)ER, vol.. 4g.
f\ag was brought tothel1otice of the conductor, who had controlof the .train as to w4ere it.should under14ke.to pass the handcar. In this.. respect it is like the ;later case, rather than former. ,Wpon all of these cases Clary would"appear to have been ,entitled to recover damages of the defendant if he had Dot beenkilkd, and by force of the statute the>plaintiff appears to be entitled to recover now. As the is entitled to recover,. he is entitled to nominal damages at least; and to such further sum as is proved within the meaning of the statute. .. '.' . - No case has been cited or observed from the courts of the state in which the right of recovery, or measure of damages,· in actions upon this statute for the benefit of collateral kindred has been considered. In Railroad Co. Barron, 5 Wall. 96, the action was upon a statute of IUinois, almost like this in words,and precisely in meaning, as to giving a right of recovery to the. wife and next of kin, and authorizing such damages as are just with reference to the pecuniary injury resulting from such to them, and was for the benefit of brothers and sisters. 'rhe defendant there,as here, asked the circuit court to hold that no re:covery could be' had. for the benefit of ,any but those .who had a legal right to support from the deceased. The court ruled that the action :was. given for the benefit of those named in the statute, whether they had such right to support or not; and instructed the jury that they could not take into consideration the wounded feelings of the surviving relatives, but might the amount of property of the deceased, the character of his business, and the prospective increase in wealth likely to ao. prue to a man of his age, with the business and means which he had. These rulings were approved, and Mr. Justice NELSON, in the opinion of the supreme court, said: "If the deceased bad lived they may not <lave been benefited, and. if not, tllen no pecuniary injury could have resulted to them from his death. If the person injured had survived and recovered, he would have added so much to bis personal estate. which the on his death, if intestate, would have passed to his wife and next of kin. In case of his death by the injury, the eqUivalent is givenbya suit in the name of bis representative." This shows that the pecuniary injury resulting from the death is the loss of what the deceased would probably have accumulated afterwards if he had lived. In .this case the deceasf1d had accumulated nothing for anyone up to the time of his death in middle life. He was no more likely to ll.ccumulate property fmm then forward than before. The deprivation of his society, affection, or counsel is not to be considered. The actual probable pecuniary loss is all that the statute covers and can be allowed for. Upon the evidence, considering all the probabilities of his future, no jQst.ground for finding that he would ever have accumulated any prop(lrty for his brothers and sisters is apparent. Question is made as to the sufficiency of the allegations of the declaration for supporting a recovery for the benefit of the brothers and sist.era. If the action was given directly to those suffering the injury, the would need to set forth the facts constituting the right of re-
BAEDER
199
covery of those who should bring suit. But the action is given to the personal representative; and the right is the same for whosever benefit the suit may be brought. The recovery is to go to the widow and next of kin, as the personal estate would, exclusive of creditors and legatees. Railroad Co. v. Barron, 5 Wall. 96. The questions as to who are beneficiaries are left until distribution. A declaration, which sets forth adequately the right of the personal representative to recover, would seem to be suffipient, without alleging specifically the rights of the respective distributees. Let judgment be entered for the plaintiff for one dollar damages.
v.
JENNINGS.
(Circuit Oowrt, D. New Jer8fN. Ootober 18, 1889.)
1.
PusLI(lLAltDB-SURVEYS-APPOINTMENT 011' DEPUTY SURVBYOR.
in 1690, was a. man of high position, identified largely and in many ways with the pro-
Where it appears that one who purported to make a survey, as deputy surveyor,
prietary daml, and afterwards surveyor general. and that he had made and returned a great number of surveys as deputy surveyor, which the council of proprietors allowed to remain on their records without protest, it will be held that he was a regular deputy surveyor when he made the survey in question, though there ill no record of his appointment. A recital, in a survey made in 1690, that a warrant had been issued, is presumptive proof of the fact, not to be questioned without some evidenoe to the contrary.
S.
BAMB-WARRANTS-EvIDENCE-REOITAL IN ANCIENT SuRVEY,
S. BAXE-SURVEYS-PRESUMPTION lI'ROM LAPSE 011' TIMB.
After the lapse of 200 years, it must be presumed that a survey regularly entered on the books of the proprietors, and never objeoted to by them, was entered with their .consent and approb&tion.
"
A survey made in 1690, by a regular deputy surveyor, and officer of the ,Proprietors, returned to their office, and duly entered on their books without ObjectiOn, constitutes a good title in New Jersey, and a patent is not necessary to vest title. 6. SAllIE-NEW JERSEY ACT OF 1787. Act N. J. June 5, 1787, whioh deolared that any survey made of any lands within either the eastern or western division of the proprietorsof the state of New Jersey, and inspected and approved of by the general proprietors or council of proprietors, and by their, order entered upon the record, should, from and after such record was made. preclude and forever bar the proprietors and their successors from any mand thereon, applied to surveys made and recorded before its passage. ' 6. BAMB-CONSTl'l'UTlONAL LAW.....RETROSPECTIVIll OPERATION. To give the act retrospective operation does not make it unconstitutional, as the constitution 'of New Jersey had no provision on the SUbject, and the constitution of the United States had not been adopted when the act was passed. '1. SA)IE-WEST JERSEY SOCIETY-QUASI CORPORATION. Daniel Cox, who was a large proprietor of West New Jersey, governor of the colony, and iIivested with the powers of government therein, in 1692 disposed of·all of· his properties to all association of 70 persons, to be distributed among them according to their respective interests. The deed was to two, to the use of the shareholders. At the same time he granted to the same persons the right and powers of government in West New Jersey. These associates assumed the powers of government, made regUlations for the management of their affairs and the conveyance of. their lands, They acted and were treated as a corporation, and were so treated by. the proprietors of East Jersey, under whom defendant olaimed, in respect to their ownership of the properties in East Jersey purchased from Cox. They held and conveyed large tracts of land, and were recognized by the name of the "West Jerley in courts and by the legislature. Held, that the society was a quasi corporation, with power to convey lands by its oorporate officers. viz., presiaeni, vice-president, and committee.
SAME-NECESSITY FOR ISSUR 011' PATENT.
200 8.
FEDERAL REPORTER, vol. 40.
S.UIE-POWER OF ATTORNEy-EXECUTION BY CORPORATION,
On February 1. 1749, the sooiety, by its president, vioe-president, and committee, exeouted a power of attorney to sell its lIinds in New Jersey. The paper was exe· cuted not only under the hands and seals of the offioers. but under the common seal of the sooiety, and its exeoution was duly proved by the subsoribingwitness before the lord mayor of London, and was duly reoorded. that the paper was a corporate document, duly executed by the sqciety.
The various deeds and grants by whiohDaniel Cox derived title to shares of property in East Jersey, and oonveyed them, 71 in number, were among a large lot whioh remained in the repositories of the West Jersey Sooiety in London from the early part of the reign of William and Mary to the middle of the last century. They were then sent to the society's agent in New Jersey, after being registered in the offioe of a notary in London, oarefully identified by the oaths of the notary and the seoretary before the lord mayor of London, and by the oath of the captain of the ship who brought .them over, and were reoorded in West Jersey. Their validity and existenoe had been fully reoognized by the proprietors of East Jersey. Held, that they were suffioiently authentioated to entitle them to record, and were properly received in evidence in an aotion between one claiming under them and a gran·. tee of the proprietors of East Jersey. 10. SAME-ACT OF 1743. The act of 1743, whioh merely declared that certain acknowledgments or proofs theretofore taken should be deemed sufficient to authorize the deeds to be recorded, did not declare that no other proofs shoUld be insufficient. 11. SAME. The failure to record them in East Jersey is not material to the que.stion of the existence of such deeds. 12. SAME-ANCIENT DEED-PROOF BY RECITAL. . A deed alleged to have been exeouted in 1772, forming a link in plaintifr's chain of title, was not produoed, but a deed executed in 1823, moretban 60 years before defendant undertook to take possession, was produced, which reoited the existence of the deed of. 1772. The grantors in the deed of 1823 had exeroised various acts of ownership. Held, that the reoital waS admissible to prove the existence of the deed as against defendant. 1& EVIDENOE-PROCEEDINGS IN PARTITION.
II.
DEEDS-ANCIENT DEEDS-AuT:\IENTICATION-EvJDENCE.
1'- SAME-ADMINISTRATOR'S
Proceedings in partition in 1818 were introduced, but the original petition, and the order for the appointment of oommissioners, were missing. There were shown the report of the commissionel's the land, a map of the premises, and their allotments, and an order of the court dlreoting the report to be flied. in oonsideration of the lapse of time, and possession of the property in oon. formity with the division, that the were admissible. A reoital, in an administrator's deed, of an order of sale, is suftlcient presumptive proof, 40 or 50 years after the date of the deed. of suchan orde!'; the possession being conformable to the deed. DEED.
At Law.
In ejectment.
On rule to show cause why verdict should not be set aside, and a. neW trial granted. . This rule came on to be argued, by agreement of the parties, before Mr. Justice BRADJ.EY, at his chambers, city of Washington, 11th February, 1889. At the trial of the cause before Judge WALES, at'rrenton, September term, 1887. a stipulation was made between the parties as follows: "It is' on this 28th day of September,' 1887, agreed by and between the respective attorneys of the above parties that at the close of the testimony both parties shall rest; that a pro forma venlict shall be taken for the plaintiff; that an application for a rule to show cause why a new trial should not be had shall then be made by the defendant's attorney, which rule to show cause,. by consent of plaintiff's counsel, shall be allowed; that the attorneys of the respect!ve parties shall each furnish to the other side a brief of the points and cases relied upon, at least 20 days uefore the argument of the rule, the defendant first presenting the plaintiff his briefs, to which tbeplaintiff shall
II. JENNINGS.
201
reply; that the rule shall be argued at such time and place as shall be directed by the court upon the points raised by the record. and relied upon in the reISpective briefs above mentioned. [Signed] "I. W. CARMIOHAEL, Atty. of Deft. "GARRISON &; FRENCH. Attys. of Plfr." [Signed] The report of the proceedings shows that, after the evidence was closed, the judge, referring to this stipulation, charged the jury as follows, to-wit: "Gentlemen of the Jury: Counsel on both sides have come to a stipulation which is avery convenient one for both you and the court. You observe that the case is a very intricate one, the testimony involving the examination of old records and ancient statlltes,-colonialstatutes,-which the court would have had to make itself familiar with, and give you an opportunity to investigate them; but counsel have come to a conclusion to let you render a verdict, and the matter will be argued hereafter on a motion for a new trial, and the court will decide whether your verdict will stand or be set 3l\ide. ,. Thereupon the jury brought in a verdict for the plaintiff. The motion was argued on the whole evidence in the cause, and the question was whether the evidence was sufficient to sustain the verdict in favor of the plaintiff; in other words, whether the rule to show cause should be made absolute or discharged. Garri8O'n k F'rmch and P. L. Voorhees, for plaintiff. I. W. Carmichael and B. Gwmere, for defendant. BRADLEY, Justice. The land for which the action was as described in the declaration, is a parcel of 5 acres and 61 hundredths of an acre, situate on Long Beach, in the township of Eagleswood, in the county of Ocean, and state of New Jersey, being to the east of the line between East and West Jersey, bounded south-easterly by the Atlantic ocean, and north-easterl)' by the line between lots numbered 17 and 18 of the Cox patent, as divided by J. S. Earl and others in the year 1818, and being part of said lot No. 18. The plaintifi' set up two grounds of title: First, by grant from the proprietors of East Jersey to Daniel Cox in 1691, and deduction of title to the plaintiff; second, by continuous possession under claim of title for a long period of time, to-wit, more . than 20 years before the defendant took possession. The defendant claimed title under a warrant for 10,000 acres of land from the proprietors of East Jersey to Charles E. Noble, trustee for themselves, issued in 1884, and a survey thereunder to said trustee, dated March 18, 1886., duly returned and recorded, and a deed of conveyance from Noble to the defendant. Of course, the defendant relies upon his possession, and claims that the plaintifi' must prove title in herself; but it is not pretended that the Q-efendant acquired possession in any other manner than under the said survey of 1886, made for the use of the proprietors. The controversy is really with them. The links in the chain of documentary title on which the plaintiff relies are as follows,to-wit: 1. Certain deeds of conveyance vesting in Daniel Cox two shares of propriety in East New Jersey. These deeds are: First. One from Edward Byllynge, one of the original 24 proprietors of East Jersey',
1202
FEDERAL
vol. 40.
'(see, Leammg & SpiQer , 73,) being a lease and release for one share, dated' 19thRl'l.d 20th of March, 2 JaS. II., (1685-'86:)8econd, a deed from the widow and heir of Wil1iamGibson, another bf the original '24 tb, '1'hoIrtasCox, for one share, dated 6th April, 3 Jas. II., (1687;) and a deed from Robert West and Thomas Cox to Daniel Cox, for the same shln'e, dated 4th December, tW. & M., (1689.) These deeds, if'duly authenticated, show that' Daniel Cox-who, history tells us, )'I'fl,SJ,lOt only a noted person at court, being physician to the queen, pf James II., and to Princess, afterwards, Queen, Anne, but a very prominent man in the affairs both of East and West Jersey -was owner of two shares of pro;eriety in 1?89,.. ,It will be se:n th!lt he dIsposed ofthetn to the West Jersey SocIety' 1111692. But m ·the mean time' he made ,other deeds Qr mortgages afff;lcting these shares. The' recordss};low that he cOl;lveyed the, first from Byllynge, to one Samuel Stancliff, in April, 1687, and that Stancliff got out a warrant/or 10,000 'acres of land upon it, 'but whether he ever procured surveys tHerefor is not shown. It wouldseetn that this con'veyance wasbyiway of security ormol'tgage, and that the share was re''Conveyed to Daniel Cox;, for, in JanliarY',1690-91,rCox conveyed the same share to John Hyde and John Haskins by way-of mortgage; and they joined him in releasing it' to' the WestJerseySoclety, in March, 1692, soon after the conveyance of'bispropel'ty in Amerlea to that association, as will presently be mentioned. The other share, derived from . ,was also Dlortgttged' by Cox to Robert West :and Wetton, bylease and release, dated 5tband' 6th of June, & M.(169Qi)"and thel:ie personl'ljoined him in, a quitclaim to the Marc.h, 1692. The records and certified copies ;pfl,\ll these 'Ye:reprQduced inevidellQe on' the trial. The ;.o,bjeptiop,s to will be noticed hereafter. Meanwhile it is ,pertinent to they were recognized by the proprietors pC El!-st,Jersey, lllil' appear, :. ,2. ,The next link in theplaintifl"s ohain of title is a survey to Doctor lDapiel Cox, TE)turned and entered October 7, 1691, for 2,400 acres of Harbor be,ach, which it is con<Jeded embraces the inquest;io,n. The plai;ntifl·fiJ'st introduced a resolution of the copneil of proprietorl3,adopted May 20, 1690, as,follows. ri\Forasmuoh Rs"this board is given'to understand by the surveyor general ,that ,there is a1iJeast 24.000 acres of meadow at Barnegat, it is therefore Rnd ordered ,that each propriety have allotted. to it 1,000 aores of the ;siM m.eadow, <lndtJJ,j\t,warratlts be granted to each proprietor, and such other ,01', personlJ. their equal to each one's proportiona,l' share in a 'proprie,tr. as they now hold; when desired. and ,that 'all tile npland IMj'oining to the said meadows be granted to such of the said proprietors as :desire the it join their own meadow;" ., , . '\ the ';themselves oHhis resolution, and took q.plands at the Barnegat meadows and on Little.Egg Harborbeacb, $Ad :tpllkpat;euts therefor. Four of these patents were produced in evito. Peter Spmansj. dated 24th May, 1690, for 6,,300 acres,
" BAEDER
!l.
'!
'II. JENNINGS.'
partly' on the beach; one' toA. Gordon, of same date, fo1" about· 4, 000 acres, embracing 3 mihls, of the beach; one to Thomas Hart; and one to William Dockwra,-allinCluding portions of the beach in' continuous tracts. The tenor of the survey to Dr. Cox is as follows, to-wit: ' "By warrant from the proprietors of East New Jersey, dated May 20,1690, surveyed and laid out for Doctor Daniel Cox, (in right of two proprieties,) two thollsand four hundred acres of meadow and upland at Barnegat. in two tracts: The first on the beach of Little Egg Harbor, beginning at the north: side of the mouth or opening of the harbor on the point of the beach, Qr the: running, beginning of the partition .line betwixt East and West Jersey, north-easterly, as the beach goes, six miles, more 01' less, to Peter Soman's line in length, and from the sea to the bay in breadth, including all the meadows and islands adjoining on the side of the main channel of the sound 'or bay, bounded east by the sea, south by Little Egg Harbor, west by the chan-I nel olthe' bay, north by Peter Soman's. The other tract on the main side of the bay, opposite to the last.mentioned tract, beginning," etc., (describing the same.) "Also, five hundred acres of land at Wickatunk, which is his lot there, being number twenty-three, beginning," etc., (descl'ibing the same.) "Also five hundred acres of Topenenny, which is bis lot there, being number eleven, beginning," etc., (describing the same.) "A.lso a home lot, being chains in length, and 12 chains in breadth, bounded north-west by land unsurveyed" north.east by Thomas Warne, south-east by Hobert Barclay, south[Signed] JOHN BARCLAY." west by a highway. This survey has an entry in the margin, as follows, to-wit: "Entd. 7 Oct. 1691." It is objected that there is no proof that. John Barclay was a deputy surveyor in1690 or 1691. It is hardly .credible that a.man of his high position, a son of the then recent governor, Robert Barclay, himself identified largely'and in many 'ways with the proprietary affairs, a member of the council, and afterwards appointed surveyorgeneral,' (April, 1692,) would have ventured to act as a deputy surveyor if he had not been duly authorized so to do. It is hardly credible that the council of proprietors would have allowed his surveys (and there are great numbers of thet;n) to have remained on their records without some protest, if he had not held 1\. commission as deputy surveyor. I think thatthey, and all claiming under them, are estopped from denying his authority. We have the positive testimony of the historian, William A. Whitehead, Esq., in his "Contributions to the Early History of Perth Amboy," (page 42,) that in January, 1688, John Barclay was appointed deputy surveyor under George Kdth, and succeeded him as surveyor general, April 6,1692. His alJPointment as deputy, it seems, was not recorded, and has been lost in the 200 years which have since intervened. But I cannot think that this should vitiate his surveys. I have no hesitation in holding that he was a regular deputy surv:eyor of the proprietors when he made the survey in question. .· . NOl'ha.ve I any greater hesitation in holding that it will be presumed that a warrant was issued as recited in the survey. No warrant was produced on the trial, and that was made a ground of objection to the survey. 'That there was such.a warrant is evidenced by the reciW. This presumptive prdofof the fact, not to be ,questioned at this late, day without' some evidence tl> the contrary. .
is
204: is recorded) Book O.
FEDERAL REPORTER)
. Some. suspicion is sought to be cast on the book in which the survey This is very strange indeed. Hundreds of surveys are only to be found in this book. It is of public consequence to the citizens of New Jersey that it should be carefully preserved. In the schedules annei,rl to the Elizabethtown bill, the proprietors themselves largely refer to it as the authority for many of the surveys which they cited as evidence of their acts of ownership, and of submission to their claims as proprietors, over the lands in dispute in that case. Book 0 and Book 2 of Surveys are very important records,' and a transcript of them should be deposited in the office of the secretary of state at Trenton. It is strange that it has never been done. ' But supp<lsing the survey genuine and authentic, and made by a proper officer, it is still objected that.it i.s insufficient to vest the title in Pan iel Cox without a patent; and no patent was produced. It is conno patents have been issued since the surrender of government, in 1702; the titles granted since then all resting on the surveys lUone. If a patent was why is it not necessary since? No law Wj).S ever passed to dispense 'with a patent; yet no OI;le supposes tq\lrt it is order to perfect the title. It is merely a questipu of regulation. A patent, it is true, is authentic evidence of a title; bu't.itis the survey and return that :segregate the land from the comn;lon domain. Daniel Cox was o,ne of the proprietors, owning onetwelfth of the whole province. Histitle,therefore, was already perfect. to segregate the lands, and set The sur\'eyand return were them apart tohis use. See the observations of Chief Justice KIRKPATRICK. in Arnold'v. Mundy, 1 Halilt. fS7:-69. Perhaps a non-compliance .with the regulations might have authorized the board of proprietors, within a reasonable time, to vacate and, set aside the survey in a regular wayjbut, until thus set aside, it seems to me it stands good. A mnde by a regular deputy surveyor, au officer of the proprietors, returned to their office, and duly entered in their books without objection, (as this was,) has always been deemed a good title in New Jersey. A statute was pAssed on the 5th of June, 1787, declaring "that any survey made of any lands within the eastern or western division of tbeproprietors ()Uhe state of New Jersey, and inspected and approved of ,by the general proprietors, or council of proprietors of such division, and by their orde'r or direction entered upon record in the secretary's officeOf' this state, or in the surveyor general's office in such division, shall, from and after such record is made, preclude and forever bar such j>r6prietors and their successors from any demand thereon, any plea of defi,Ci;El,ncyofright: or otherwise notwithstanding." Revision N.J. p. S{l9;'§ 3... It is coiitended that this act is not retrospective, and does appl! t? su.rveis prior to Its passage, and would be unconstitutlOnalIf It dId. If It does not apply to surveys made and recorded before its passage, it would be of litHe use. In terms, it applies to s'4rveys j the evil to he. remediel;i" relnted to past as well as future sUrveys. 'l'hepre\;qus section ofihe same act, making 30 years' actual posSession; under certain circumstances, a bar to all prior .locations, is
BAEDER fl. lENNINGB.
205
careful to give to parties 5 years to sue after the passage of the act; That section was certainly intended to be retrospective, and yet it is couched in no more absolute terms than the section under consideration. As to the that a retrospective effect given to the act would make it unconstitutional, an obvious answer is that the constitution of New Jersey had no provision on the subject.. and the constitution of the United States had not yet been adopted when the act was passed. In my opinion the survey produced was sufficient. After 200 years, it must be presumed that a survey regularly entered on the books oLthe proprietors, and never objected to by them, was entered with their consent and approbation. 3. The next link in the chain of the plaintiff's title is the conveyance of the laud described in the survey of October, 1691, by Daniel Cox to the West Jersey Society. This is proposed to be shown by certified copies of several deeds offered in evidence for that purpose. Daniel Cox had become a large proprietor of West New Jersey, and was governor of that colony, and was invested with the powers of government therein. That colony was divided iuto hundredths, of which Cox held 20, besides large tracts ofland which had been segregated, and large colonial interests in other parts, Minisink, etc. In the beginning of 1692, Cox -disposed of all these vast proprieties to an association of some 70,diffetent persons, to be held in 1,600 shares, distributed among the parties aoc()rding to their respective interests. By deeds dated the' 4th day of March, 1691-92, he conveyed to Jonathan Greenwood and Peter Guyon, ' to the Qse of the sharehol<iers, all his proprietilrJ" rights, and aU his propertyiri West Jersey and in Minisink, and his two proprietary rights in East Jersey, besides other property specified, and concluding with general words conveying "all his, the said. Daniel Cox's, parcellsanq tracts of land known by the name of ·tOwne lots,' situated and being in or near Gloucester towne and Egg Harbor, in West Jersey, aforesaid,and' all other the lands, tenements, and hereditaments in Amerl'ca whatsoever of him, the said Daniel Cox,whereof or wherebuhe, the said Daniel Cox, or any other person or persons in trust for him or to hisuse, is or are stalldeth or stand seized of any estate," except certain lands re. j rred to, not connected with this controversy. Bya deed of the-same date, (March 4, 1691-92,) not offered in evideilce, but constituting an important document in the public political history of NewJersey, Daniel Cox granted and conveyed to the same persons the right and powers of government in West New Jersey. (These two deeds are copied in the New Jersey Archives, vol. 2, pp. 41, 64.) By another deed executed in the following January, (1692-93,) Daniel Cox released to the same parties a certain charge reserved in the first deed on one-third of the property, as security for part of the purchase money, and conveyed to/ them 4,000 acres of land in West Jersey, part of a tract which had been rellerved by John Fenwick to himself, and an additional half propriety in EilstJersey, which had been conveyed to him (Cox) by ltobert West. The assQciates to whom Cox thus conveyed his.. interests the powers of gov9rnment over West Jersey, apPQiute<1the
FEDERAL ;g,EPORTER,
'Vol. 40.
about,the marragementoftheir affairs,the conveyance of their lands, etc. i (See their Artiolesof Agreement, copied in New J erseyArclti\l-es, vol. 2, wMohis an historical' document. A certified copy of these articles was 'produced in evidence.) They appointed a standing Mmmittee to act" for'the body, consistingfirat of eleven, afterwards o£nine; persons. They; noted and were treated asa corporation. They.were certainly 'a corporation d6facto, and Ithink a corporation de jurej ,as,much so, and.witha8lttluch authority, as the proprietors of East whose corporate Ql1pacity has never been questioned. Exercising the! powers of government, they were a law unto themselves, and a corporation of mere right. They were treated this way by the propriewrsof' East Jersey, in reSpect' to, their ownership of the two and onehalf proprieties of that provinoowhich they had purchased from Daniel Cox;: In1V45the proprietors ofl$st Jersey filed a bill in the court of chailcery ofthe province against a linge nU!"l1ber of persons in the vicinity of ·.Elizabethtown, who claimed "certain lands ad'Vetae to the proprietors, which bill was called the.t' Elizabethtown Bill," already referred to; and the West Jel'8'ey Society of the most promInent of the parties complainant' in' ,this bill, being named; in the order of dignity, next after the earl of Stair and the Fhnns. The bill commences thus: his E3xJtluricy Lewis Morris, Oaptain General and Govemor, etc.: Humbly show, unto' your excellency your orators, John, eal'1 of 1ho.oo»s Penn, Rirhard Penn, [John Child, Le",y Ball, FranStair, John Mico, Henry Green/lway, and Thomas. Knap, in behalf cis of themselves and other the eastern (1ivisJon of New Jersey, commonly called.and known· by the 'name of the · New' Jersey Society,'] I:)l&muel Neville,";';:'" I . ..,;, . as "general proprietors of of New, in behalf of tlwmselves and the rest 8lmeral proJ?rietors of eastern. division of Jersey." Those m .braqkets are .the the West Jersey SOClety, called ill the; b;ill the ." N J erse)! ·." T?eir title the and on.ehalf, shares: of Bropflety before referred to IS set the blll, and lD Schedule 2th eretollnnexed. In tpebill they say. as follows, to-wit: 1, J. . "4-ndllYollr John Ball.. Francis MIDlilhuH, Joseph Mico, Hflnry GreenaW.ay, Knap, in behalf of thems,elves and the re'lt of tbos6, called Jersey Society,' dO show unto yo1.\rexcellency that, by s-nndry niean under the said Ed ward Billing, .William Gibson, and Rtibert 'West, :ttitiy stand seized of and entitled in fee-siinple unto the whole ot those two proprieties, or 24th parts of EaHt New Jel'sey aforesaid, formerly' to the said Edwal'd, Billing and" William.Gibson, and to one-half of to that, pr'!p'riety or,2'f:th part -And-they refel' to said Schedule No: 2 for the derivation of title to the said,tW6 and:o'1le-;half proprieties, Which exhibits the same deeds of conveyance through; !Daniel Cox before referred to. Thill presentation of title both on the West Jersey-Society arid on the ptopHetorSo:l Ell:stJersey, and effectually disposes .of'the objections to the' title of Daniel Cox to those proprietary shl\rellih 1690 alld 1691, "ben' the survey of the' Barnegat·or' I:..ittleEgg Harbor beach was made L ·. · ._"'.-. .
-;and .aboQl
J
BAEPlIlR .,. JENNINGB. ,
,·207
to him. The West Jersey Soqiet.y. or,. as 'sometimes caJled,the New Jersey SQciety," anq the "New Jersey Society," long held immense tracts of land in West Jersey, .as well as considerable tracts in East J ersey, and a great mallY titles are dependent upon their deeds of oonveyance. It 'is too late, at the present day, to doubt of the corporate or quasi corporate Cllpacity of this association, and its power to sell and dispose of its its corporate officers.' It has been recognized by the ,of New Jersey. Near the close of the Revolutionary war, on the 5th of October. 1781, the legislature passed an act for the protection , of its property,entitled "An act for vesting the powers of agency for the West Jersey Soqiety in JosepbReed, esquire; one of tbe said society." The preamble of the act is as follows: : "Whereas, the said Joseph Reed hath. by his petition,' represented. that on or about the 4th April, 1692, Sir Thoma.'! Lane, knight, Michael Watts,es· quire. and divers other personl;l, .then residio/{.in the kingdom of GreatJBrit. ain,"associated together by the nameof the' West Jersey /39aie;ty,' for tbeplIrpose of locating and improving.lands in North America, and \lid accordingly purchase of Doctor DanielCoxe divers lands, tenements, and rig\1ts or Pl'Qpriety ioWest Jersey, Pennsylvania,and New England, ":etc. ,
The act then gives' power to Reed to protecttbe society's property,· to · J'ellt it,eto., for.the peliod of seven years,unless he should 'sooner :be , ·by "ll.notber ,agent. This was . rendered, neoossallJ from the fact that many, if not most, of the associates, resided in Great Britain, amlcould noUook after interests duringthe contin uance of the war. It appears· by the articles of association of the sooiety,and the in&tance .ofthe ElimbethtQ:lVnbill,that tllesociety acted b.y·its president or viee. and standing committee"which was annually elected. . 4. Onthe 1st of February, 1749-50, the West Jersey Society; acting .by its president; vice-president, and committee, executed a poWer of ll.t· torney to Henry ,Lane and Lewis Johnston, authorizing them and ,either of them.;to sell and dispose o{ its lands in New Jersey, and do other acts specified, in the power. Tbis paper was executed, not onlYfuoder the · hands and.seals, of the officers,but under the common seal of the society · Its was duly proved by John Stephenson,the subscribing wit.1le$8j lord mayor QfLondon, and· was 'duly recorded;,'I:consider a document, duly executed by the society j under its and by its usual officers. ' .5. :Thenext link in ,the plaintiff's chainoHitJe is a deed for the ox survey:from the West Jersey Society, executed: by their said ;ltttorneys, , Lan,e and ·Johnston, and datedApri11, 1751. The of this deed was acknOWledged bylone of the attorneys before the James Alexander. It is- objected that both ofthe attorhave acted. The UStimonium clause shows that they did, but QQly Qne acknowltldgel1theexecution. This was sufficient; as the power ,to li!l'll was conferred upon both or either of them. The.title then as follo""/J;6·.. A of conveyanoe ofthe lilaIi:le property, dated Maroh: 26; 1762, ;'fa:mes :ijaywood ,to 2Q'l1i!fA:Irent p.ersoDs"inoluding, among others,
FEDERAL REPORTER,
John Monro, Edward Tomkins,John Leonard, William Newbold, Allthony.Sykes, Benjamin Gibbs,and John Chapman. (A certified copy of this deed was produced, showing it to have been regularlyacknowledged and recorded in the office ofthe secretary oistate, May 30,1762.) 7. Adeed from John Chapman to Joseph Newbold, dated October 8, 1772, for one,.hl'l.lf of his one-twentieth interest in said lands, and to Caleb Shreve·fOr'one-fourth of'said twentieth. (This deed was not produced, but is recited in the deed from William and Clayton Newbold and others to S/l.muelDeacon and Simeon Haines, hereafter stated.) 8. A quitclaim deed from Benjamin Gibbs to his co-tenants, dated De,. 20, 1775, for his one,.twentieth of said lands; SQ that the shares held in common became 19 in number, instead of 20. (This deed was not prodl.\ceAqQ the, bout is recited in a certain deed, which was produced, ftQl!ll George Sykes to Thomas P. Sherborne, Jr., for a portion'of lot Noili13,:set off toJ'ohn Leonard in the proceedings in parti,, '" .' tion 9. Will ofJ'bseph Newbold, dated 27th March,1790, proved 19th , his interest to Clayton New.bold; and will of said Clawton Newbold, dated 26th May, 1808, prQved 18th September, 1812; devising thesa:me to William'Rnd Clayton Newbold. Also the devolution by desoent of Caleb Shreve's interest to his'children and heirs at law; to th·ree of whom, Eenjamin" ' aleb, and Reuben, the others released ' · their interest.. i 10. Proceedingsin partition for the division of the Daniel Cox survey among the said 19 shares';' said partition being executed ou the 1st of December, 1818, by John Collins, Jr., Charlesf. Lott, and Joshua S. Earle, appointed commissione1'S for that purpose by Hon.WILLIAM RosSl1:LL, secondjuj3ticeof the supreme court of New Jersey, on the 18th of · June; 1818,on the application. ofSamuel Sykes, one ofthe heirs of Anthony Sykes, deceased; which commissioners made tpeir report on th& 9th day ofDecember, 1818; and on the 12th of the same month the said report was presented to the said justice, and by him ordered to be filed ,in the clerk's office of the supreme court at Trenton, and the same was filed accordingly, together with a map thereto annexed, showing the sev· eral parcels into which the said Oommissioners divided the said lands. None of the proceedings in said partition were produced on the trial, except a duly-certified copy of the commissioners' report and map, and th& , .otderof the judge indorsed thereon, declaring that he had examined the within repo:rtl,and directing the same to be filed as aforesaid, and a state,. · m.ent .of the :expenses of said partition, it being alleged that the other, proceedings could not be·found. This partition was cited and referred to in severaldeeds for various pbrtions of the Cox survey, given in evithat purpose. Inthis-.partition, the,1inesof division between the several portions into whieh the tractw8s divided, extended across ·the. tram from south-east to north-west, and the several portions wer& numbered from 1 to 19, beginning at the north end, and extending south·westerly. to the old:inlet of Little Egg Harbor. i Lot No. 18, containing was, last lo.t bounding on the ocean. No. 19 (still fur-
BAEDER V. JENNINGS.
209
ther south) was bounded by the inlet. All the lots extended back to' the channel of Little Egg Harbor bay. Lot No. 18 fell to the share of John Chapman, then (in 1818) belonging, one-half thereof to William and Clayton Newbold, and one-quarter thereof to Benjamin, Caleb, and Reuben Shreve. William and Clayton Newbold claimed the remaining fourth of that share by virtue of paying the share of the expenses due from it, no one appearing to claim the same, or to pay said expenses. The judge had power, by the law, to order a sale of any share whose owner failed to pay fl, proportionate part of the expense, and one or more of such sales seem to have been made. After this partition the next links in the plaintiff's chain of title were-11. A deed dated 4th March, 1823, from William and Clayton Newbold, and Benjamin, Caleb, and Reuben Shreve, to Samuel Deacon and Simeon Haines, for the one-half of the John Chapman share owned by the Newbolds, and the one-fourth owned by the Shreves; and another deed of same date from William and Clayton Newbold to said Deacon and Haines for all their right, title, a'nd interest in the remaining fourth. (The originals of these deeds were prodriced, duly acknowledged.) The first contains a recital of the deed from John Chapman to Joseph Newbold and Caleb Shreve, dated October 8, 1772, before referred to; and of the partition just described, and the allotment of lot No. 18 to the representatives of John Chapman. 12. A deed dated 31st May, 1823, from Samuel Deacon and Simeon Haines to William Elliott, George Armitage, John Kenworth, Marine ·Tyler Wickham, Charles Eaton, and Joseph Few Smith, conveying the said three-fourths and one-fourth of the John Chapman lot (No. 18.) (The original of this deed was produced, duly acknowledged.) 13. A deed dated 20th May, 1824,' for the same lot, No. 18, from the last-named grantees (who are declared to hold in trust for the Long Beach Sea-Shore Company) to George Armitage, Marine Tyler Wick'ham, and James Baker, in trust for the uses and purposes declared in certain articles of association of the said company annexed to the deed, and signed by the grantors and various other persons. (The original of this deed was produced, duly acknowledged.) The articles declare that the association was formed for the purpose of keeping a house of public entertainment on the southernmost end of Long beach, in the county of Monmouth. 14. A deed dated 4th May, 1827, from M. T. Wickham and James Baker,surviving trustees, to Jacob Alter, for the same property, described as "all that tract or piece ofland, with the buildings and improvements thereon erected, (distinguished by lot number 18 in a certain plan or · mapaf a larger tract of land known by the ·Southwesterly part. of Long Beach,') situate in Monmouth county, in the state of New Jersey, con· taining about 194 acres, be the same more or less." The deed recites that the requisite majority of the shareholders of the association were in favor of-selling the house, land, and all other property of the company at public sale at a time named, unless previously disposed of at private ' v.40F.no.4-14
FEDERAL REfORTER,
o
.Bale; and that the compa.ny should be dil5s01ved; and thatit was I)old. at auction accordingly, to James Alter, for the sum of $1, 750. {The orig.inalofthis deed was produced, duly acknowledged.) 15. A deed dated 5th May, 1827, from Jacob Alter to Marine Tyler Wickham, Cornelius Stevenson,John Moore, George Wilson, James Baker, and Thomas Stroud, as tenants in common in fee, conveying the seme property. (Original produced, duly acknowledged.) 16. Various deeds and proceedings in pa,rtition, by ,which the title of the last six grantees was conveyed and transferred (or clai.med to be so) to James Burk, to-wit: (1) A deed from James Stroud to Burk, dated 7th A,prU; 835 dor his (Stroud '.s) one-sixth part of said property. (Original produced, dulyacknowleged.) (2) A deed from Cornelius Stevenson to Burk,dated, 31st December, 1835, for his (Stevenson's) (Original produced, acknowledged.) (3) A deed from, the administratorofM. ,T.Wickham to said Burk, dated 16th November, 1835, for Wickham's sj;xthplln. (Original produced, duly.apknowledged.) This deedrecites.thl3 ol'derand proceedings of the county, for the of the land to pll,y !ll;lbts, but the order itself was not deed waa (4) deed dated produced, and for,this pfsaid .1stMaYt 1887,. fromcommis.sioners appointed to property among the said six .conveying the property to said :Bu,rk.' pro.dl;lcj:ld,dulyaoknowledged.), ,The deed recites the proceedings and orders of.three judges of the court9fcommon pleas of MQnmo1ilth: for the pa.rUtionand sale of the ,said proceedings lWd. orders:werenotpl'oduced, and for this reason the deed was objected tq, . Burk iltshowntohave had a tenant intheprqperty by ,the name of William Ivins, in 1835, or about that tillle,. down to. about .. 1839. The next-Il\uniment of title. 1s- : , 28th June, 1839, from JameS:Burk to 17. A for (OrjginaJproo.uced,duJy,l:l.cknpwledged.) . . 18. Da;vid, Good died in June or July t 1840, JeQ.v:inga widow and .three children,. his heirs at law, naro,ely, Rachel Ano, wife of Charles wife of Jonas and John S. Baeder, the, Good. The tiUeof the oth.er heilf1was duly convey.ed.to, the plaintiff by various mesne Q9nveyances, the. originals of whioh. we:r.e produced. duly from John S. GpodJtQ.Qhal'les Baeder, dated February 12, 1866, for his third part; and several deeds from the .heirs of in 1874 and 1817 one of said in 1884, conveyed to 'heirs, whoooqveyed to one Charle;; Baeder. conveyed. the transferred to the pmintitr:, whoreconv:eyeq the Ilame to the :pJaintiff. , him to " It thllsapPlW-l'llth,at David Gopdl'und his family, . :;Pfflintiff,) apd,Jil}a,lly the plaintiff herself, h.ave bad the ostensible title, the property !>incl!'. June, 1839. , ;David Good left a will, execqted in Pennsylvania, in; ,presence of only tWQ,wHnesses, by which he devised the property to his ",ife for life, with rp.mainder to ,his chil'.<1ren. T4e latter,seem. ,to havEl· ,iJ;l;this will ,during their motb'.
, BAEDJlJRtI· .mNNJ1IfGS.
211'
er'slife·time; She died in 1862;' If to this period we add that during which James Burk claimed the ownership, it carries us back to 1835, 50 years before the invasion of the proprietors and their grantee, the defendant. And Burk's title, barring some imperfections in the records, ordinarily requisite to validate conveyances by administrators and commissioners in partition, is regularly deduced from John Chapman's representatives in the partition made in 1818, (namely, the Newbolds and Shreves,) to whom was allotted lot No. 18 as set off in that partition, which includes the premises in question. Chapman was one of the grantees of James Haywood in 1762, and Haywood received title from the West Jersey Society in 1751. The title of the society is claimed under the various deeds from Daniel Cox and his mortgagees or trustees, made in 1692. The claim of Cox is founded on the resolutions of the proprietors in 16'90, and the survey made in 1691. So that there has been a constant claim of title, with undoubted color of title, to the property in question, adverse to the proprietors of East New Jersey, for nearly 200 ye,ars past, and an almost perfectly connected chain of conveyances of undoubted validity for Over 140 years. The alleged defects in certain links of the chain will be adverted to hereafter.' In the mean time the question arising from alleged possession under claim of title, on the part oUhe plaintiff and her predecessors, will be examined. Ofcourse, it is difficult to produce actual proof of possession beyond the memory ofman. We have, it is true, a gleam of historical evidence in the private act of the legislature passed the 27th of October, 1770. This act is entitled" An act to regulate the pasturing the lands. meadov.;s, and islands in common, lying on and adjoining to a certain beach known by the name of 'Barnegat,' or 'Long Beach,' and for other purposes therein mentioned." There can he no shadow of douht that the act refers to the property embraced in the Cox survey, including the lands in question. Its terms are in precise conformity to the then situation of the title as evinced by the deeds produced in evidence. It will be remembered that James Haywood had conveyed the property to twenty persons as tenants in common in 1762, eight to the act. The names of certain of these grantees are mentioned in the act, in the ,appointment of managers for regulating the common use of the property. The preamble and first section are as follows: "Whereas, the owners and proprietors of a certain tract ofland. meadows, and islands, situate in the township of 8tatfurd and county of Monmouth, called' Barnegat,' or · Long Beach,' have by their petition set forth that the aituationand circumstances attending said beal'h, meadows, and islands are such that they cannot conveniently be divided in the ordinary way by fences or ditches, by Uleans whereof it is in the power of a few proprietors to greatly prejudIce the said beach and meadows by overstocking the same, and receiva law to limit and regulate ing the. Whole profits to themselves; and the pasturing !laid beach, meadows in common, which is but reasonable andjHst, therefore be it enacted by the governor, council, and general sssembly ,of the colony of Ntlw Jersl'y, and it hereby enacted by the authorityof the same, that from and after the tenth day of which will be in the year ofont Lord 1771. no possessor, ownero'or theil' representatives shall
212
put on, or suffer to run at large on, said beach, islands and 'meadows it greater number of horses, horned cattle, sheep, or other stock. than in proportion to the quantity and quality of the lands, islands, and meadows he or they shall respectively hold. or be entitled unto!' The second section is as follows: "And be it enacted by the authority aforesaid that it shall and may be lawfuLfor the proprietors, owners, or their representatives to meet and asspmble yearly on the fourth Tuesday in October, at the now dwelling-house of Benjamin Randolph, in the township of Statford. or any place to be hereafter appointed by a majority of the said proprietors. owners, or their representativE'S, met and assembled, and then and there choose three managers to regulate the pasturing said beach, islands, and meadows, which managers shall be and are hereby invested with power to enter upon said beach, islands, and meadows, view the same. and to limit and proportion the number of horses, horned cattle, sheep, or other stock each proprietor or owner shall put oll.or let run at large said beach, islands, and meadows in proportion to the and quality of the same." . The following seotions provide ,for branding the increase of the stopk with the mark of the respective owners, and ·authorize the managers to erect pounds for that purpose, impose penalties for violation of the regulations,-and provide means of collecting the SMne by sale of stock, etc., and prescribe other duties of the managers as to keeping records, accounts, etc. The sixth section enacts "that Anthony'Sykes, William Newbold, and John Leonard are hereby appointed managers for the en.. suing year, and so to continue till such time as others are chosen in their room." The eighth section declares that the' waters surrounding "all that beach island called 'Barnegat,' or 'Long Beach,' and also Ule, waters which surround a certain island called' Beach Island,'lying and being next unto and onthe north of Long beach, shall be deemed a lawful fence around each of said islands, so as to support any action of tres-pass for any trespasses committed or done on those islands, or either of them; and that all trespassers within those premises shall be subject to the like penalties as are inflicted by the laws of this province on treson any of the inclosed lands within this colony." From the antiquity of tbis act I have 110 doubt of its competency as proof that the lands therein described were used and occupied by the then claimants to the title thereof, and that they claimed the land as their own. This evidence is also prima facie proof, unless the contrary appears, that the land continued to be occupied and possessed by the owners thereof,according to its quality and adaptations. . . The proceedings in partition which took place in :r818(as well asio.:. termediate conveyances of portions of the land) tend to the same conclusion, namely, that it was never aba.ndoned by the persons claiming to own the same, but continued to remain in their possession. But, coming down to later times, within the memory of living men, we have the testimony of John D. Thompson, 80 years of age, that he lived 011 Long beach in 1834, in the house, vyhich,he thinks, was built about 1830, and stood right south of Bond's house. 'The comthfl ,pany referred to WAS either the.
BAEDER V. JEXNINGS.
213
associates who then owned the property as grantees of James Alter, in his. deed executed in May, 1827. They were M. T. Wickham. Cornelius Stevenson, John Moore, George Wilson, James Baker, and Thomas Stroud. The house is specially mentioned iu the deed to Alter, executed just previously, namely, in May, 1827. Thompson, testi(ying, more than 50 years afterwards, undertakes to give the names of some of the company. He mentioned James Hickey, John W. Moore, Henry Shively, John Wilson, and Mr. Baker. Of course it is obvious that the persons he came in contact with may only have represented the owners. He states that he agreed with the Long Beach Company for the housej agreed with James Hickey, who was the property manj paid rent to William Ivins, who lived in the house after Thompson. (Hickey was probably the agent of the Qwners.) In 1835, as we have seen, some of the part owners sold out to James Burk, and in 1837 he purchased all the interests at commissioners' sale. Ivins, who received rents from Thompson, became tenant of Burk. An agreement between him and Burk in respect. to the occupancy of the premises WitS produced in dence. Thompson says that Ivins afterwards moved to Barnegat, and died there, and he (Thompson) was his administrator. He says that he found Ivins there (in the house) when he (Thompson) took sion in 1834; and after the season, he left Ivins in posseflsion, and htl (Ivins) resided there until he went to the Mansion of Health House, Manahawkin, in 1838, two years before his death; and, that he died in 1840. left, some year or so, Ivins sold out to a lawyer by name of Jones, who moved there, and Ivins moved to· the Mansion of Health. There is a little confusion in Thompson's '3tatements, but not more than would naturally be expected from au old mlln half a century after the events.. It is clear from his testimony that the property was occupied by the ostensible owners, under the conveyances produced, from about 1830 to 1839; and the recitals in the deeds show that it was occupied and a house built on it several years before 1830, probably as early aR 1824. The map made by the commissioners of partition in 1818 shows a house on the land at that time, occupied by a person by the name of Horner. The nature of the land was such that it was probably only used as a place for summer resort, or for pasturing cattle during certain seasons of the year. In regard to such lands, a continuous pedis possessio is not necessary to maintain the owner's possession.in law, sufficient to antagonize all trespassers. In 1839 Burk conveyed the property to David Good, and his family have claimed to own it ever since. We have the testimony of David -Good's.son, John S. Good, who was born, ashe says, in 1823, and was therefore 16 years old when his father purchased the land. He testifies that after his father's death (in 1840) he several times visited the place with his mother; that it was then owned by his mother. (It has been seen that David Good devised the property to his wife f(u her lifej and the children, no doubt, recognized her right to ii, ahhough the will, being wituessed by only tWQ witnesses, was not a valid devise in New a right in it at/'loU events.) John S. Good Jersey. She
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says he thinks that Lloyd Jones was in possession when his mother owned· it. He says tha·t they (he and his mother) sometimes staid there two or three weeks at'a tim.e; that they were there threedr four times. His recollection is'somewhat indefinite. But it is clear that the family always continued to claim the property as their own. Living in Pennsylvania, and not able in those times to derive much income from the property, they may have let it lie unused for many years. There is no evidence on this point. But this did not deprive them of their right to it, or of their legal possession as against all trespassers. Certainly the Board of Proprietors of East New Jersey had, least of all, any right to disturb them, or to interject a party into p@ssession, and thus place them in the position of being obliged to make out strict title after peaceable private ownership oHhe property for many generations. In my jtldgment there was a legal possession of the property, under color of title, in the plaintift', and those whose estate she acquired, for a much longer period than 20 years, and the defendant has not shown an adverse possession for a sufficient i>eriod to overoome the prima facie right of the plaintiff. This conolusion is arrived at independently of any alleged defects inthe documentary; titleptoduced by the plaintiff, and therefore the rule to show cauSe why anew trial should not be granted must be discharged without regard to those alleged defects. It will be mare satisfactory, to examine the objections made by the defendant·to the documentary title of the plaintiff. The first general objection relates to the deeds and grants by which Daniel Cox derived title to the two shareS of propriety of East Jersey, under which the survey of 1691 was made, and to those by which he and his mortgagees conveyed' his and their interests to the West Jersey Society. . Sev. eral of these deeds were never entered upon the East Jersey records at all, and were not entered on those of West Jersey until 1754. It is objected, for one thing, that these deeds were not acknowledged or proved. But no law required them to be acknowledged or proved. The regulation of the original concessions and agreement of Berkeley and Carteret, with regard to the acknowledgment and proof of deeds, referred only to conveyances between private personsjand no other regulations went into effect of 1699. which did not make any prior to the surrender, change in this matter, being substantially a mere repetition of the concessions. The dl'eds in question were among a large lot of deeds and. papers, 71 in number, which remained in the repositories of the West Jersey SocietYiin the secretary's office in London, without having been placed on record, from the early part of William and Mary's reign to the middle of last century. They were then sent to this country to their agent here, after being registered and recorded in the office of a notary public in London, carefully identified by the oaths of the secretary and notary, taken before the lord mayor of London, and by the oath or the captain of theiShip that brought them over, taken before the honorable James AleXll,nder,and indorsed on each deed, and were then recorded in Book M·of Deeds·for West Jersey, aathey principally related to property in that division of the province. . They ware aneient deeds. Sixty years