Glen v. Gibson , 9 Barb. 634 ( 1850 )

By the Court, Welles, P. J.

The plaintiffs entirely failed to show title in themselves to the lands upon which the trees grew and were cut, out of which the lumber was made, for the conversion of which, the action was brought. Upon the death of Oliver, the trustee, in 1834, the trust estate did not descend to his heirs, or pass to his personal representatives; but the trust, being then unexecuted, the estate vested in the court of chancery of this state, and could only be executed by some person appointed for that purpose, under the direction of that court. (1 R. iS. 730, § 68.) The proceedings of the Baltimore county court in equity, conferred no right whatever upon the plaintiffs, as trustees or otherwise, in relation to the lands in question. They were entirely null and void in regard to the lands in this state.

The question is, whether Boyer or those claiming under him, are at liberty to set up and alledge the want of title in the plaintiffs, after he, (Boyer) with Beard and Klinefelter, had entered into an agreement for the purchase of the lands from the plaintiffs.

The proceedings of the court in Baltimore, which were introduced and made evidence by the defendants, show by the amended bill filed in that court, that Boyer, Beard and Klinefelter had contracted with Catón and Oliver, for the purchase of the same land. This must have been as long ago as 1834, as Oliver died in that year. The contract of purchase from the plaintiffs was in July, 1839, and was made in pursuance of the decree of the Baltimore court, which was passed in February, 1839. If that arrangement had been carried out, and effectuated by the payment of the purchase money, and the execution of a conveyance by the plaintiffs, it is impossible to see that the purchasers would thereby have acquired any title whatever, legal or equitable, to the land. The proceedings in the Baltimore court seem to have been founded in an entire misapprehension of the law, and of the power of that court over the subject matter of the suit, as regards lands in this state.

The defendants offered to prove that Boyer, Beard and Klinefelter were in possession of the land, claiming title, from February, 1837, and had ever since so continued in possession; that the plaintiffs never were in possession of the land, or any part of it. That Boyer, being thus in possession claiming title, had, for the period from 1837 up to the commencement of the suit, cut and sold the timber and lumber from this land, without objection on the part of the plaintiffs j and that while Boyer was thus in possession, the defendant Lyman Gibson purchased from him the lumber in controvesy, and paid for it in full, before receiving any notice that Boyer had no right to sell it. This was objected to by the plaintiffs’ counsel, and the evidence excluded by the judge; who held that the plaintiffs had shown sufficient, as against the defendants, to establish title in themselves; and that Boyer and the defendants were estopped from disputing the plaintiffs’ title, or setting up title in themselves. I am constrained, for several reasons, to dissent from the learned justice in excluding the evidence offered, and in holding as matter of law, that, the defendants and Boyer were estopped from disputing the plaintiffs title, or setting up title in themselves. I am aware of the general rule, that where one person purchases land of another, he is not at liberty afterwards to dispute the title of his vendor. (Jackson v. Ayres, 14 John. R. 224, and note (a) at the end of the case.) This rule, however, is subject to several exceptions, and is by no means universal. One exception is, where, at the time of the purchase, the vendee is in possession as owner, claiming title, and his original entry was not under the vendor. (Jackson v. Leek, 12 Wend. R. 105; Jackson v. Spear, 7 Id. 401; Jackson v. Cuerden, 2 John. Cas. 353.) In this case one part of the offer was to show that, in 1837, and from that time down to the trial, Boyer,, from whom the defendants purchased the lumber, together with Beard and Klinefelter, were in possession as owners, claiming title. This would have been prima facie evidence of title in Boyer and his associates, commencing several years prior to any pretense of title in the plaintiffs, and to the contract of purchase with them. I understand the rule in question is confined to cases where the vendee enters into possession of the land, under and by virtue of the contract of purchase, or where, if in possession, it was without pretense of title or right. But where a man is in possession of land as owner, claiming title, he is at liberty to purchase the land over again as often as claimants shall appear, who are not in possession, and thus quiet such claims and fortify his title, without being estopped from disputing the title of such subsequent vendors, should it afterwards become necessary for him to do so. The principle is, that where one is put in possession of land by another, the former is not at liberty to controvert the title of the latter, until he has restored the possession so received, and placed the other party in as good condition as he was before he parted with the possession. Another exception to the rule in question is, where the vendee, although he entered under the purchase, yet in making the purchase, was deceived or imposed upon. (Jackson v. Ayres, 14 John. 224.) And I am inclined to think, that -where it affirmatively appears that both parties were under an entire mutual mistake even as to the law, in regard to the right of the vendor to sell, as in this case, it would form another exception to the rule; and the vendee would not he precluded from showing it; especially where such supposed authority ivas utterly void and ineffectual. (Story’s Eq. Jur. § 134.)

I forbear noticing the other points raised upon the argument, as the views already presented are sufficient to sTioay that the defendants are entitled to a new trial.

New trial granted.