Englishbe v. Helmuth.

II. The "act concerning escheats," passed April 29th, 1833, (Laws of 1833, p. 472,) as amended by laws of 1834, p. 31, authorized the release to Mary Englishbe. (1.) The act is not unconstitutional by reason of the want of a two-third vote. (1 Cowen, 564; 4 Wheat. 625; 6 Cranch, 87.) It does not appropriate public property for private use; but merely authorizes the sale of an inchoate title upon equitable terms. (See title to act of 1832, p. 32; Jackson v. Adams, 7 Wend. 367.) It opened a common market for all persons who might happen to have the prescribed equitable right to favorable terms; and, therefore, it was not within the spirit or intent of the constitutional restriction. (Warner v. Beers, 23 Wend. 190; Gifford v. Livingston, 2 Denio, 402.) If unconstitutional in respect to lands which had previously escheated to the state, it could not be so in respect to lands which, like the premises in question, escheated subsequently to its passage. It imparted an equitable mitigation to all subsequent escheats, and was, substantially, a modification of the law of descents.

(2.) James Englishbe died seised of the premises in question, within the true intent and meaning of the acts of '33 and 34. On general principles, the sheriff's deed would relate to the time of sale. (1 Cru. Dig. 63; Taylor v. Horde, 1 Burr. 60; Watkins on Desc. 36, 37, 57, 3; Ratcliffe's case, 3 Co. 37; 2 Bl. Com. 209, (Chitty's ed.) note 10; H. Chitty on Desc. ch. 4, § 3, pp. 40, 62, 51; Co. Lit. 48, a; 1 Coke's Rep. 98, a; Jackson v. McCall, 3 Cowen, 81; Greenhill v. Greenhill, 2 Vern. 679; Langford v. Pitt, 2 P. Williams, 629.) The statute of 1830, relative to sales on execution, does not declare that the very benign and convenient doctrine of relation, shall not apply, but on the contrary, endeavors, by specific and detailed provisions, to apply it without defeating the debtor's right of temporary occupation. (Laws of 1820, p. 167; id. 1824, p. 276; 2 R. S. 373, 62 to 64; id. 336, 20 to 22; Rich v. Baker, 3 Denio, 80.) The act of 1833 having been passed subsequently to these regulations, must be deemed to include the peculiar and qualified intermediate equitable seisin with which they vest the purchaser. The word seised, in the statue of 1833, does

Englishbe v. Helmuth.

not import a strict technical legal seisin. The act embraced every case where the state acquired an interest in lands by escheat. (§§ 24, 25. Vanderheyden v. Crandell, 2 Denio, 24; Wendell v. Crandell, 1 Comst. 491; Amherst v. Skynner, 12 East, 263; Cumming v. Trysden, id. 272, note; Shrapnel v. Vernon, 2 Bro. C. C. 268; Halsey v. Hales, 7 T. R. 194, 270, 271; Matthews v. Ward, 10 Gill & John. 443; Sugd. on Ven. 9th ed. 173, 179, 180, 181, 203, 277; 2 R. S. 1st ed. 373, § 61.) It is a rule that where the heir takes any thing which might have vested in the ancestor, the heir shall be in by descent, and this must be on the notion that the ancestor was, in a certain legal sense, seised. (Shelley's case, 1 Co. 93, 97 b, 98, 99, 106b; Co. Lit. 361b; Doe v. Griffiths, Burr. 1961; 7 Co. 38 a; 5 T. R. 179, 180; 1 Co. 98 a; Jackson v. Ramsay, 3 Cow. 75; Jackson v. Dickenson, 15 John. 309; 2 R. S. 1st ed. 370, §§ 42 to 45, 50, 51, 63, 64; 1 id. 1st ed.751, § 1; id. 755, § 27.) Other cases of relation. (Jackson v. Bull, 1 John. Cas. 81, 85; Johnson v. Stagg, 2 John. 510; 15 id. 309; Howard v. Cromwell, 4 Har. & McHenry, 353; Doe v. Dugan, 8 Ham. 87; Vroom v. Van Horne, 10 Paige, 558.)

III. The letters patent are conclusive until repealed; and while they remain in force, it cannot be questioned that all the interest of the state, legal or equitable, passed thereby. (Jackson v. Lawton, 10 John. 23; Houseman v. Hart, 12 id. 77.)

IV. If the state did not acquire a title by escheat arising out of the seisin of James Englishbe, and his death, without heirs, then the widow, Mary Englishbe, took an absolute estate under the sheriff's deed. (2 Black. Com. 328, 331; Jenk. Cent. 190; Burgess v. Wheate, 1 Eden, 177, 261, note; Barclay v. Russel, 3 Ves. 430; Sir Geo. Sands' case, 3 Ch. R. 19; Taylor v. Haggarth, 8 Lond. Jur. 135; McCartee v. Orphan Asylum, 9 Cowen, 468; 1 Cruise, 418, tit. 11 Use, § 26; Bac. Read. 42, 61; Co. Litt. 8, a; Com. Dig. Alien, ch. 1; Orr v. Hodgson, 4 Wheat. 453; Jackson v. Lun, 3 John. Cas. 121; Leggett v. Dubois, 5 Paige, 114; 1 R. S. 718, § 3, 1st ed.)

V. The attempted grants to the plaintiff are void. (1.) The state could not convey before entry. (Bro. Abr. tit. Escheat VOL. III.

38

Englishbe v. Helmuth.

26; Acceptance, 25; Co. Litt. 268; 2 Kent, 54, and cases in note b; St. 3 Ed. 1, ch. 24; 2 Inst. 206; Com. Dig. Prerog. D. 67; Co. Litt. 13, b; Fairfax's Lessee v. Hunter, 7 Cranch, 603; Jackson v. Adams, 7 Wend. 367; Wilbur v. Robey, 16 Pick. 177; Doe v. Redfern, 12 East, 96; see act of 1833, ch. 37, p. 31, 7; Stamford, De. Pre. Reg. 54, a.) (2.) The premises were held adversely at the time of the making of the plaintiff's pretended grant. (Commonwealth v. Hite, 6 Leigh, 588; Jackson v. Hudson, 3 John. 384.)

John T. Doyle, for the respondent. I. The conveyance from the sheriff to the administratrix of James Englishbe was in trust for his heir at law, and therefore passed the legal title directly to the heir at law. No estate vested in the administratrix. (2 R. S. 2d ed. 296, § 63, 64; 1 id. 721, 722, i 45, 47, 49, 55, 67.)

II. The plaintiff also derives title to the premises as grantee of the state, under the acts of May 9, 1846, and Nov. 19, 1847, and by those acts he is invested not only with the state's title thereto, but with the same powers, rights and actions to recover possession thereof as the people had before the passage of those acts. (Matthews v. Ward's Lessee, 10 Gill & John. 443; Jackson v. Lane, 3 John. Cas. 109; People v. Cutting, 3 John. 11; Jackson v. Adams, 7 Wend. 367; Leggett v. Dubois, 5 Paige, 114; 1 R. S. 2d ed. 714, § 2, 3; id. 724, § 67.) Unless the people had, previous to the passage of those acts, made a valid grant of the premises in question to some other person, they had at the time of the passage of those acts a right to bring an action of ejectment to recover them, and that right and action have by the acts aforesaid become vested in the plaintiff. (Hubbard v. Goodwin, 3 Leigh. 492, 514; 1 R. L. of 1813, p. 379; Sess. L. of 1818, p. 293, § 2; id. of 1820, p. 248, §§ 2, 5; General repealing act, 3 R. S. § 1, Nos. 99, 266, 214.)

III. Prior to the passage of the acts of May 9, 1846, and Nov. 19, 1847, the state had made no valid grant of the premises in question; the letters patent issued by the commissioners of the land office to Mary Englishbe, were issued without authority

Englishbe v. Helmuth.

(Jackson v.

and void, and consequently conveyed no title. Stanley, 10 John. 133; Jackson v. Hart, 12 id. 77; Jackson v. Lawton, 10 id. 23; Jackson v. Marsh, 6 Cowen, 281; 2 R. S. 2d ed. 479, 12; Rev. note, vol. 3, p. 787 ; Polk's Lessee v. Wendell, 9 Cranch, 87, (99;) Stoddard v. Chambers, 2 How. S. C. R. 284; Fairfax v. Hunter, 7 Cranch, 630.) The premises in question not having escheated "by reason of the death of the person seised without heirs," are not within the scope of the act concerning escheats, nor were they within the powers of the land commissioners under that act. (Russell v. Paine, 20 John. 3; Everton v. Sawyer, 2 Wend. 507; Farnham v. Clark, 10 Paige, 599; Case of Mary Ball, Ass. Doc. 1844; Bac. Abr. tit. Statute I. § 2, sub. 9, § 4, sub. 29; Merch. Bank v. Cook, 4 Pick. 411.)`

But the act concerning escheats, and the act amendatory thereof, (Laws of 1833, p. 472; id 1834, p. 31,) are not constitutional, and no title was derived by Mary Englishbe from the release under them. The constitution of 1821, article 7, sec. 9, required the assent of two-thirds of all the members elected to each branch of the legislature, to every bill appropriating the public moneys or property for local or private purposes. (Lewis V. Webb, 3 Greenl. 326; Governeur v. Porter, 5 Humphrey, 165; State v. Fleming, 7 id. 152; Stamford v. Barry, 1 Aik. 114; De Bow v. The People, 1 Denio, 14.) The acts above mentioned were not passed by the requisite constitutional majority, and are therefore void. (1 R. S. 2d ed. 143, 3; Laws of 1842, p. 397, ch. 306, 2,3; De Bow v. The People, 1 Den. 14; Purdy v. The People, 4 Hill, 384; Opinion of Attorney Gen. Ass. Doc. 1844, No. 48.)

After advisement, THE COURT arrived at the following conclusions:

That the act concerning escheats, passed April 29, 1833, and the act amending the same, passed March 18, 1834, did not require the assent of two-thirds of the members elected to each branch of the legislature, in order to render them valid and effectual in respect to lands which escheated after their passage;

Englishbe v. Helmuth.

as to which, they are not to be regarded as acts appropriating public moneys or property for private purposes, within the meaning of article 7, section 9 of the constitution of 1821, but as statutes effecting a modification of the laws relating to escheats, and whereby the state upon proper application and on certain prescribed conditions, might in all cases waive or relinquish its claim to lands, the title to which should fail from a defect of heirs; which waiver or relinquishment in the mode prescribed and by a general law, it was as competent for the legislature to ordain by a majority vote, as it would have been by such vote otherwise to have amended, or to have abolished altogether the statutes relating to escheats.

The statutes in question having been designed to establish a liberal and benign policy on the part of the state, ought to receive a liberal construction; and there appearing to be no reason why lands under the circumstances of this case should be excepted from the operation of these statutes, and their language being sufficiently comprehensive to embrace such lands, provided it be not taken in a strict and technical sense, but receive a liberal construction, it is the conclusion of the court upon the facts presented by the special verdict, that James Englishbe died "seised" of the premises in question within the true intent and meaning of those statutes, which were intended to embrace every case where the state might acquire an interest in lands by escheat.

That it was therefore competent for the commissioners of the land office to release the lands in question by letters patent under the great seal of the state, as was done on the 22d day of April, 1835, to Mary Englishbe, the widow of James Englishbe, the person last seised, whereby the state was divested of all right or claim to such lands; so that the subsequent statutes in favor of Francis Englishbe, the plaintiff, did not operate to vest him with title. He therefore had failed to establish any right to the premises in question; and the judgment in his favor ought to be reversed, and a judgment rendered in favor of the defendants.

Ordered accordingly.