Russell v. Schuyler.

of Baroness Nonesuch, Countess of Southampton, and Duchess of Cleveland. See Rapin's Hist. by Tindal; Bishop Burnet's Own Times; Ward's British Hist.; and Granger's Biog. His. The grandson of this first Duke of Grafton, Augustus Fitzroy, who died in 1741, in the lifetime of his father, the second Duke, married Elizabeth the daughter of Col. William Cosby, our colonial governor; and by her he was the father of Augustus Henry, Duke of Grafton, afterwards the prime minister of England; whose name was immortalized by the very powerful but still unknown pen of Junius. And he was likewise the father of Lieut. General Charles Fitzroy, who was created Lord Southampton, in 1780, and was afterwards groom of the stole to George III. See Annual Reg. 1787, p. 233. By a reference to Debrett's British Peerage, it will also be found that the witness was correct in supposing that Lady Augustus Fitzroy, the daughter of Governor Cosby, after the death of her first husband, married James Jeffreys. And as she died subsequent to our act of 1786, changing the course of descents, her lands in this state, by virtue of that act and the act of March, 1790, removing the disability of alienism, descended to her daughters and to Lord Southampton, her second son, as well as to the Duke of Grafton, her oldest son, who would have been the sole heir by the common law. All those children joined in the deed of 1793, which was executed, by virtue of their joint power of attorney to Watts, dated in 1791.. I think, therefore, there can be no reasonable doubt that the premises passed to General Schuyler under that deed, if Cosby's manor belonged to Governor Cosby at the time of his death. Whether the other evidence was sufficient to authorize the jury to presume that the original patentees had conveyed their interests in the lands to Governor Cosby previous to his decease, is the other material question in the case; which question I will now proceed to consider.

The recital in the conveyance from Grace Cosby in 1762, is, after such a lapse of time, sufficient evidence of the fact that Governor Corby died shortly after the making of his will in 1735; although the date of the probate of that will VOL. XXII.

36

Russell v. Schuyler.

which would have been better evidence, has by some inadvertence not been stated in the bill of exceptions. As he must therefore have died within a very few years subsequent to the date of the patents, it could not be expected that after the lapse of nearly a century, the lessors of the plaintiff would be able to show Governor Cosby is possession, under the supposed conveyance from the patentees previous to his death. The fact that the land had obtained the name of Cosby's manor previous to the making of his will, in January 1735, is certainly a very strong circumstance in favor of the presumption that he was in the actual possession by his tenants, before that time. Independent of the recitals in the deed from Grace Cosby, there is another important circumstance, which appears to have escaped the vigilance of counsel. By referring to the probate of the will, it will be seen that three of the original patentees, J. Felton, C. Williams and W. Cosby, were subscribing witnesses to such will; which in terms devised the lands originally patented to them, to the two sons of the testator as lands which had lately been purchased by him. I think this fact alone, after the lapse of ninety years, and when no claim to the manor has been made by any of the original patentees since that time, was sufficient to authorize the presumption of an actual conveyance of the manor to Governor Cosby; which conveyance had been lost by time and accident. But it further appears that the part of the manor on the north side of the Mohawk, has been actually held and possessed for more than seventy-five years under this supposed conveyance to Governor Cosby, as the common source of title to the whole manor; and in this point of view the recitals in the conveyance of Grace Cosby, as well as the recital in the will under which Henry claimed title to that part of the manor, are strong presumptive evidence in favor of those claiming the residue of the manor under the same will or from the same common source of title. It is pretty evident from the recitals in the deed from Grace Cosby to Oliver De Lancey, which deed was executed by Sir Wm. Johnson as her attorney, that the scrivener who prepared that deed, had before him at that

Russell v. Schuyler.

time not only the original will of Governor Cosby, but also the lease and release of the patentees, bearing date a very few days after the issuing of the patents; as the deed recites even the christian names of the wives of the several patentees, and notices the fact that the husbands alone, signed the lease, but that their wives joined in the release, and states the consideration specified in each. The fair presumption therefore is, that the lease and release from the patentees were then in the hands of Sir William Johnson, the attorney of Grace Cosby, and not in the hands of the eldest son of Governor Cosby, under whom the lessors of the plaintiff claimed; and they probably went into the hands of De Lancey, the grantee, as a part of the evidences of his title; as they cannot be found among the papers of Sir William Johnson in the hands of his son and heir. By referring to the act of attainder of the 22d of October, 1779, 1 Greenl. Laws, 26, it will be seen that Oliver De Lancey. was attainted for adhering to the enemies of the state, and his property was confiscated. And it is a matter of public history, of which the records of our judicial tribunals also furnish abundant evidence, that most of the persons who were in that situation, sent their evidences of title to England, for the purpose of obtaining remuneration for their losses, from the government, to which they adhered in the revolutionary contest; and that those evidences of title cannot now be obtained.

In the case of Jackson v. Lamb, 7 Cowen 431, a release of the whole of a tract of land was presumed, after the lapse of forty years, upon the prodution of the mutilated parts of a lease for one year, which recited that the object of such lease was to found a release thereon and upon proof of the fact that some of the lots in the tract had been long possessed under title derived from the person named as lessee in such mutilated lease. And in the case of Jackson v. Lunn, 3 Johns. Cas. 109, a conveyance from the patentees to Admiral Warren, the father in law of this same Gen. Charles Fitzroy, was presumed after a great lapse of time, from the recitals of such a conveyance, which were contained in leases of parts of the patent which had been

held under such leases, although there had never been any actual possession of the premises in question in that suit, under the conveyance which was presumed to have been so executed. See also Beal's Lessee v. Lynn, 6 Harr. & John. Rep. 336. The case now under consideration is certainly a much stronger one than the case of Jackson v. Lunn, from the fact that a part of the patentees were witnesses to Gov. Cosby's will, devising the manor as having been conveyed to him by them and their associates. The fact that the owner of this part of the manor was for many years previous to his death, supposed to be insane, accounts for no claim to the premises having been made by him, and of there being no attempt to settle upon this part of the manor previous to the revolution. His sister also must have been far advanced in years at the time of his death; as her son was old enough to be the prime minister of England in 1767. And the disability of alienage not being removed until 1790, accounts for the fact that she did not attempt to exercise any acts of owership over this part of the manor during her life.

There was no legal evidence of the sale of any part of the land for quit rents; and if such a sale had taken place during the lunacy of Wm. Cosby of New Rochelle, or after his interest had vested in the people of the state by escheat, it is probable that Gen. Schuyler, after the act of March 1790, thought it most safe to protect his title by a purchase from the heirs of Lady Elizabeth Jeffreys. The jury were therefore properly instructed. to presume a grant from the patentees to Gov. Cosby, as recited in his will and in the conveyance to De Lancy.

There was no proof of a tenancy which entitled the defendant to notice to quit. His declaration that he had once paid rent to General Schuyler for the land, without stating whether such tenancy was from year to year, or for a certain specified term, even if it was legal evidence in his own favor, did not make out a tenancy or holding from year to year. And no notice to quit was therefore necessary.

For these reasons I am satisfied that the decision of the court below was correct, and that the judgment should be affirmed.

Hoffman v. Carow.

On the question being put, Shall this judgment be reversed? all the members of the court voted in the negative. Whereupon the judgment of the supreme court was accordingly AFFIRMED.

HOFFMAN and others vs. CAROW.

An auctioneer who sells stolen goods is liable to the owner in an action of trover, notwithstanding that the goods were sold by him, and the proceeds paid over to the thief, without notice of the felony.

Whether the same rule prevails in respect to common carriers, and others, having a mere temporary possession of the property, not claiming title to it, and not converting it into money by sale, quere.

It seems, that where a plaintiff brings an action in respect to personal property in the place where he is domiciled, that the law of that place, and not the lex rei sita governs in respect to the rights of the parties.* ERROR from the supreme court. Carow brought an action of trover in the superior court of the city of New-York,

*The law is different here from what it is in England, in respect to the right of the owner to pursue or to recover the value of stolen property which has been sold by the thief. In England, the owner cannot bring his action against the thief or a purchaser from him, until after conviction for the larceny, because by the common law, the private injury is merged in the public wrong. Nor will an action lie there against a bona fide purchaser in market overt, if he has parted with the property previous to the conviction. Neither of these rules prevail here. The doctrine that the private injury is merged in the public wrong, is abolished by statute, and the English law of markeris overt has not been adopted here. Consequently the owner of goods feloniously taken, may here bring his action to recover the property or its value, without showing a conviction of the thief, and notwithstand ing that the purchaser has parted with the property previous to the conviction. The reason why the owner cannot maintain an action in England where the purchaser in market overt has parted with the property previous to the conviction of the felon is, that by the purchase in market overt the owner's right of property is gone, until the conviction of the thief. If, therefore, previous to such conviction, the purchaser part with the property, the owner in an action of trover cannot prove that the stolen goods were his property, and that while they are so, they came to the defendant's possession, who converted them to his use, for until the conviction, the owner has no property in the goods. Thus it will be perceived that this doctrine rests upon the law of markets overt, and that does not prevail here, the law with us depends upon different principles.