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Varick's ex'rs v. Briggs.

been duly made as alleged, (which I agree with the chancellor is made out by the evidence,) the title under them is valid, unless they are vitiated by the statutes requiring in general terms all deeds executed since February, 1799, and October, 1802, to be recorded, and enacting that all deeds not so recorded should be considered fraudulent and void against subsequent bona fide purchasers and mortgagees. I have nothing to add to the chancellor's reasoning as to the probable intention of the legislature that the act of 1813 was not to be retrospective as to all prior deeds, but was intended to apply only to conveyances of lands in counties which had already been subject to similar laws under previous acts for recording; and that, therefore, lands in this particular district, which had by accidental changes from one county to another, escaped the operation of such laws, must not be deemed to be included in the general retrospective words. I assent fully to this construction; but at the same time I must place my conclusion as to the effect of these recording statutes distinctly and expressly upon the clause of the constitution of the United States prohibiting any state from passing any law impairing the obligation of contracts. cannot but give an effect to this constitutional restriction, in relation to this question, much beyond what the chancellor's opinion appears to admit. I have, in a former opinion, delivered in this court, objected to what I considered an undue extension of this salutary restriction. Here I regard it as applying in full force. Deeds valid and perfect at the time. of their execution, and not then requiring for their full legal effect, any further legal sanction, such as recording, are complete and valid executed contracts. Now the effect of a subsequent statute enacting that such valid contracts shall be adjudged fraudulent and void as against certain persons unless a further legal sanction be added, must be in direct hostility to the very words of the constitutional inhibition. The contracts themselves are impaired by being adjudged void. If a law enacts that any class of contracts now fair and valid against the whole world shall hereafter be adjudged fraudulent and void against some particular persons, can this be any other than a law impairing the ob

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Varick's ex'rs v. Briggs.

ligation of those contracts? It is true that the contract may still be said to exist as between the original parties: but the obligation of the contract is surely impaired if its effect and validity are destroyed as against another party—if the executed contract has no longer any validity as between one of the original parties and an assignee of the other, in telation to the same subject matter. The obligation of the contract between A. and B., was before binding upon B. and all who night claim the effect of the contract by his grant or under his title. A law is passed pronouncing that in certain cases the contract shall be binding only upon B., and that its former obligation shall no longer bind B.'s grantees. Does not such a law impair that contract? Now it cannot be presumed that the legislature intended to enact such an unconstitutional requirement. If their intention to do so, was manifest and their language not susceptible of any other meaning, then the enactment was unconstitutional and void. But here, evidence, as shewn by the chancellor, not indeed from the statute itself, but from other parts of the statute book, indicates the probable intention, as well as the manner, in which the framers of the law were led by a natural oversight, to use words that in their literal interpretation would apply retrospectively to some few cases, like the present, not within their contemplation. We may accordingly safely here apply the rule that "a thing which is within the letter of the statute, is not within the statute unless it is within the intention of the maker." Bac. Abr. tit. Statute I. When, therefore, the act of 1813, required all deeds executed after February 1, 1799, to be recorded, under the penalty of being adjudged to be fraudulent and void against subsequent purchasers, we must consider it. as referring to deeds, which had when executed been subject to a similar rule, and which should have been recorded under previous laws, but not as embracing retroactively deeds then valid without being recorded, which might unintentionally fall within the letter of the enactment. I apply the same principle and the same rule of interpretation to the prior act of 1805. I allow the weight of the chronological reasons assigned by the chancellor to show that

Varick's ex'rs v. Briggs.

this act did not cover the deed of 1802, and which was probably executed in August or September, whilst the act did not go into effect until October. But independently of that view, that act cannot vitiate either of these deeds, if it comprehends them in its provisions as the chancellor thinks it would, unless proved to have been lost or destroyed. It is remarkable that this act, after requiring all deeds executed since October 1, 1802, to be recorded before the 1st of January 1806, does not go on to add in terms the usual penalty of being adjudged fraudulent and void against subsequent purchasers. It is only by inference from the former act of 1801, the provisions of which are here extended to another county, that this penalty can be made out. A mere inference of this kind, operating in direct hostility to a constitutional restriction, cannot be presumed or allowed, when, even if it had been an enactment in express words, such enactment would have been void. The provision for recording such prior deed then stands alone, merely directory as to the manner, the time, and the place of recording the deeds of those, who without absolute legal necessity might think fit thus to protect the evidence and muniments of their title.

I assent to the chancellor's view of the evidence of the existence of the deeds, and of their loss or destruction, as well as to his conclusions from that evidence.

I am, therefore, of opinion that the deed of 1801 to Mrs. Briggs, and the deed of 1802 for the same lands, with the addition of two hundred acres more, excepted out of the first, are not to be adjudged fraudulent and void as against the complainants, under any of the recording acts; but conveyed a valid title not defeated by the subsequent conveyance,

On the question being put, Shall this decree be reversed? All the members of the court answered in the negative, Whereupon the decree of the chancellor was affirmed,

VAN RENSSELAER and others, appellants, and AKIN and others, respondents.

The release of lands by one of two trustees, from the operation of a mortgage, is not in itself sufficient to discharge the lands; to render it available, it must be executed by both trustees.

If, however, such release be treated as a valid instrument by an assignee of the trustees, all persons deriving title from such assignee are estopped from questioning its validity.

Judicial proceedings may be given in evidence as circumstances from which to infer a given consequence, without that concurrence as to identity of parties and of subject matter which works a technical bar.

APPEAL from chancery. This was a bill to foreclose three mortgages executed by the respondent and two other persons. On the 10th March, 1810, the defendant William Akin, together with Titus Goodman and John Dickinson, became the purchasers of a tract of 537 acres of land, situate at Green Bush opposite the city of Albany, for which they agreed to pay $60,000 in manner following: Each purchaser to give his notes for $5000 payable at certain days, and also to give three several bonds for $5000 each payable as follows: $5000 on 1st May, 1811, $5000 on 1st May, 1812, and $5000 on 1st May, 1813. The three bonds of $5000 each, payable in 1811, executed by the three purchasers, separately, to be secured by a joint mortgage executed by the three purchasers upon a portion of the land purchased. The three bonds payable in 1812, to be secured in like manner by a joint mortgage upon another portion of the land, and the three bonds payable in 1813 to be secured in like manner, by a joint mortgage upon a third portion of the land sold. The contract for the purchase was made with Stephen N. Bayard, and Stephen Van Rensselaer, to whom the above tract with other property was conveyed by John J. Van Rensselaer in trust for the benefit of his creditors, for the support of his family and the out fit of his children. The trustees accordingly conveyed to the purchasers and the securities for the payment of the purchase money were executed. On the 20th April, 1811, the purchasers made partition of the tract, and duly executed re

Van Rensselaer v. Akin.

leases to each other. The three notes of $5000 each, as also the three bonds of $5000 each, payable on the first day of May, 1811, were duly paid: and subsequently William Akin paid the remaining two bonds of $5000 each executed by him, and on the 10th April, 1815, obtained a release from Bayard one of the trustees, (Van Rensselear, the other trustee refusing to execute it,) exonerating his portion of the premises from all liability on account of the mortgages. On the 17th October, 1812, the trustees of John J. Van Rensselaer gave up the bonds executed by Dickinson one of the purchasers, for the $10,000 due from him, and accepted in lieu thereof the bond of a person of the name of Marshall Jones. On the 1st February, 1816, the trustees assigned the three mortgages and the bonds of Goodman one of the original purchasers and of Jones, the substitute of Dickinson, to Elias Boudinott, for the alleged consideration of $22,000, and on the 11th July, 1818, Boudinott filed a bill in chancery for the foreclosure of the mortgages, to which bill he made Goodman, Dickinson, Jones and some subsequent purchasers parties, but did not make William Akin a party. In this bill the complainant set forth the partition made by the original purchasers, and admitted that Akin had paid and satisfied the three bonds executed by him, but alleged that there was a large arrear of principal and interest due and owing on the mortgages from Goodman and Dickinson. The defendants suffered the bill to be taken pro confesso, and previous to the 1st November, 1819, the whole of the premises contained in the mortgages, except that portion which on partition had been allotted to Akin, and also excepting some lots which had been released by the trustees, were sold at public auction, and with the exception of two small lots which brought $471, on the bid of others, was bought in by Boudinott for the sum of $8,309,44. The whole amount due on the bonds of Goodman and Jones, having been certified by a master at $25,176,86. The premises thus purchased by Boudinott, were subsequently conveyed to the trustees of John J. Van Rensselaer on the re-payment of the moneys advanced by Boudinott on receiving the assignment of the bonds and mort

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