#### Embury and others *v.*J. and W. C. Conner.

The legislature has no authority to grant private property for private uses, making compensation to the owner, unless by his consent.

This is prohibited, as well by the spirit of the provision in the constitution that private property shall not be taken for public use, without just compensation, as by the constitutional provision, that no person shall be deprived of life, liberty, or property, without due process of law.

The provision in the act relative to the city of New York, allowing the corporation on opening or widening a street, which improvement takes a part of an entire lot of ground ; in the discretion of the commissioners to include in their estimate and assessment the whole of such lot, awarding damages to the owner, and thereupon the title of the owner to be divested in the portion of the lot not required for the street, and the same to become vested in the corporation; is unconstitutional and void, as to such residue not required for the street.

In an ejectment for a piece of land thus unconstitutionally taken on a street widening, it appeared that the owners, after the corporation had conveyed the land away, received the compensation awarded by the commissioners in an entire sum, as well for such piece as for the land taken for the street; that the owners had contended before the commissioners for a greater allowance and not that their proceeding was illegal; and that the grantee of the corporation had taken *99possession, and held it undisturbed for seventeen years; *held,*that the owners were not estopped or barred from recovering the premises in ejectment.

The provision of the act, that unrecorded deeds shall be void against *bona fide*purchasers, &e., is intended for the protection of purchasers against previous grants of those under whom they derive title. It has no application to a purchaser who derives his title from one claiming in hostility to all of the parties in the unrecorded deed.

July 10, 11;

Sept. 30, 1848.

Ejectment, for a piece of ground at the North-West corner of Nassau and Ann streets, in the city of New York, being seventy feet and seven inches long on Ann street, nine feet and nine inches wide on Nassau street, seventy feet on its northerly side, and nineteen feet and one inch wide in the rear. The plaintiffs, Peter Embury, Hannah Aymar, and Margaret Jacot, derived their title from Daniel Aymar, who died seised of the premises in question in 1815, leaving five children and heirs, viz.: the above named Hannah and Margaret, Francis and John D. Aymar, and Catharine, the wife of Peter Embury. The premises were a part of a lot owned by Daniel Aymar, which was twenty-five feet in front, thirty-four feet in the rear, and about seventy feet in depth. All of his heirs united in the conveyance of this lot to Philip Embury, May 2d, 1821; who, on the 30th of October, 1821, by separate deeds, conveyed two undivided fifths of the same to the plaintiff, Peter Embury, two other undivided fifths to the plaintiff, Hannah Aymar, and the residue to the plaintiff, Margaret Jacot. The deed to the latter was not recorded at the time of the trial. The plaintiffs then proved, that the defendants were in possession of the premises in question on the 19th March, 1847, when the suit was commenced; and thereupon rested.

The defendants introduced the proceedings of the common council of the city, for the widening and improving Ann street, by which it appeared that a resolution for widening Ann street, between Broadway and Nassau street, was duly adopted, December 22d, 1828. That thereupon, application was made to the supreme court, and commissioners of estimate and assessment were appointed pursuant to the act of April 9th, 1813. That on the 22d of August, 1829, the supreme court confirmed the report of the commissioners, together with an additional *100report, the one dated July 8th, and the other July 31st, 1829. By the commissioner’s report, it appeared that they had taken for the widening of Ann street, the southerly portion of the lot so owned by the heirs of Daniel Aymar, as being required for the street itself, such portion being fifteen feet and two inches on Nassau street, and sixteen feet and five inches wide in the rear, and extending the whole length of the lot. The commissioners further reported, that this ground belonged in fee to the devisees of Daniel Aymar; that the same was a part only of a lot of land, of, in, and to the whole of which the devisees of Aymar were seised in fee; that they, the commissioners, deemed it expedient and proper to include and comprise in that, their estimate and assessment, the whole of the residue of such lot, so belonging to Aymar’s devisees, along with that part of the same which was in the report before described, as being required for the purpose of the street, in like manner as if such residue were also required for that purpose. The report then proceeded to describe such residue, it being the same premises for which this suit was brought. It then stated, that the commissioners had estimated and assessed the loss and damage to the devisees from the widening and improving of Ann street, by and in consequence of their relinquishing their interest in the piece of land required for that purpose, and also with the residue so included and comprised therewith, and in the buildings situated on the entire Aymar lot, at the sum of $11,220.

By the additional report of the commissioners, it appeared that on re-considering their estimate and assessment, they awarded to Aymar’s devisees $11,370, instead of the sum before mentioned. By the papers attached to the proceedings on file in the supreme court, it appeared that Peter Embury, on the 13th July, 1829, objected in writing, and at great length, to the amount of damages estimated by the commissioners, as being unjust; stating that they were taking his property against his consent, and that he should oppose the confirmation of their report. An affidavit of one of the commissioners was attached, sworn August 1st, 1829, stating that Embury appeared before them in behalf of Aymar’s devisees, and urged them to take the whole lot, and not leave the gore remaining ; and insisted *101upon it, against the persuasions of the commissioners, who finally deemed it expedient to include the whole lot in the assessment.

The defendants offered a certified copy of Embury’s objections, attached to the additional report of the commissioners, in which he objected to the amount of the award, and insisted on its being increased, but made no objection to the commissioners including the whole lot in their estimate, instead of the part actually required for the widening of the street. This evidence, with some other not deemed necessary to be stated, was excluded by the judge. The rule confirming the report, showed that its confirmation was opposed before the supreme court.

The defendants then proved the signature of the plaintiffs, P. Embury and H. Aymar, and the then husband of Mrs. Jacot, to a receipt, dated September 1st, 1830, by which they acknowledged to have received from the street commissioner of the city, a warrant for $11,370, expressed to be the amount awarded to the devisees of Daniel Aymar in widening Ann street. The warrant was also produced, drawn upon the treasurer of the city, payable to the “ devisees of Daniel Aymar,” expressed to be for the award on widening Ann street, and which appeared to have been indorsed by the three persons who signed the receipt. The fact of its payment was admitted.

The defendants then read in evidence a deed from the corporation of the city of New York to James Conner, one of the defendants, dated March 27th, 1830, for the consideration of $4700, quit claiming to him the premises in question, described by metes and bounds, and as being the residue of a lot owned by Daniel Aymar’s devisees, part of which was required for widening Ann street, and such residue was included and comprised by the commissioners of estimate and assessment, with the part so required for the street, and which on confirmation of their report, became and was vested in the corporation pursuant to the statute. :

The plaintiffs then read in evidence a deed from Philip Em-bury to Margaret Jacot, dated May 25th, 1846, confirming and conveying to her the premises conveyed to her by his former deed.

*102Various objections to the evidence, were taken on both sides, which were reserved at the trial; and, with the consent of the parties, a verdict was taken for the plaintiffs, subject to the opinion of the court.

*E.*Sandford, for the plaintiffs.

The evidence on the part of the plaintiffs established their title to the premises in question, in the respective proportions described in their declaration.

The several papers, records and other evidence given on the part of the defendants, did not show any title to the premises in question:

1. Because the act (2 R. L. 416, § 179 *;*repealed, Laws of 1839, p. 185 :) authorizing the commissioners, in all cases where part only of any lot of ground should be required for widening or opening a street, leaving a residue belonging to the same owner or owners, *and the commissioners should deem it expedient*and proper so to do, to include in their estimate the whole of such lot in like manner as if such residue was required for the improvement, and vesting upon the confirmation of their report, all such residue in the mayor, &c., of New York, in fee simple ; was unconstitutional and void.

The constitution of 1777, did not delegate any authority to the legislature to take the property of one person and give it to another, with or without compensation.

The.vesting of the *“*supreme legislative power” in the senate and assembly, conferred no right to take private property for private purposes. (Const, of 1777, Art. II; *Taylor*v. Porter, 4 Hill, 140, 144, 5; *Wilkinson*v. *Leland,*2 Peters, 657.)

It provided that no member of the state should be disfranchised or deprived of any rights, &c., unless by the law of the land or the judgment of his peers. The terms “ law of the land,” mean by due course and process of law. *(2*Coke’s Inst. 45, 50; 3 Story on Const. 661, § 1783; 2 Kent’s Com. 13; 4 Hill, 145, 146.)

2. If this part of the act of 1813 was within the constitutional powers of the legislature at the time of its enactment, the constitution of 1821 abrogated it by declaring that private pro*103perty should not be taken for *public use*without just compensation. (Const. of 1821, Art. *7,*§ 7; *Matter of Albany*Street, 11 Wend. 149; *Bloodgood v. M. & H. R. R. Co.,*18 Wend. 59; *Matter of John & Cherry Streets,*19 ibid, 659, 665 to 667, 675; *Varick*v. *Smith,*5 Paige, 137; *Taylor v. Porter,*4 Hill, 140,147-8.)

3. In assuming to take the property in question, the commissioners assumed to exercise the powers conferred upon them by this unconstitutional act, and the case does not present the question whether the report made by the commissioners, that they had taken the portion of the lot in question, which was not required for the widening of Ann street, with the express assent of the plaintiffs, and the confirmation of that report, could have operated to divest the plaintiffs of their title to the land.

4. If the question last referred to were presented, any parol assent which might have been given by the plaintiffs, could not have operated upon their title to the land. (1 R. S. 738, § 137, 138; 1 ibid, 756, § 1; and 762, § 38; 2 R. S. 134, § 6; *Howard*v. *Easton, 7*J. R. 205; *Cook*v. *Stearns,*11 Mass. R. 533, 36; *Noyes*v. *Chapin,*6 Wend. 461; *Hess*v. *Fox,*10 Wend. 437; *Trustees of Presbyterian Society*v. *The Auburn & Rocheschester R. R. Co.,*3 Hill, 567.)

The acceptance by the plaintiffs of the moneys awarded by the commissioners, did not divest their title to the land in question, nor constitute an estoppel *in pais,*by which the plaintiffs can he prevented from asserting their title. A part of the moneys so awarded was justly due to the plaintiffs. They were awarded to them as an entire sum. No right to apportion existed, nor were there any means, either in their possession, or in the possession of the corporation, by which they could have ascertained the amount justly due to them, for that portion of the lands to which their title became divested by the confirmation of the commissioners report. They had to take the whole or none. The corporation of New York did hot act upon their acceptance of this award in disposing of the land in question, for they had sold and conveyed it to Conner, previously to the payment of the money by them. *(Dezell*v. *Odell,*3 Hill, 319; *Lyon*v. *Reed,*13 Mees. & Wels. 285, 309; *Nicholls*v. *Ather**104*stone,*11 Lond. Jur. R. 778; Smith’s Lead. Cas. Amer. Notes, 467, 8; *2*Metc. 423, 431.)

*J. S. Van Rensselaer,*and *W. Kent,*for the defendants.

1. The power given to commissioners of estimate and assessment, on the widening and improvement of streets in the city of New York, under the act of 1813, to include in their estimate of damage and benefit, the residue of a lot, part of which only is required for public use; is advantageous to the owner, and is constitutional and lawful; especially when exercised with the consent of the owner. *(Case of Trinity Church,*11 Wen. 149.)

2. The consent and ratification of the owner may be inferred from circumstances ; and the taking .the consideration money and award, and delivery of possession of the land by the owner, his acquiescence for seventeen years in such possession and in the improvement of it by erecting buildings, &c. by purchasers, without ?my claim of title by the former owners ; or any one of these acts, is conclusive evidence of such consent. (Broom’s Legal Maxims, 309; 26 Wend. 53.)

3. The commissioners report, and the schedules and papers annexed, confirmed by a rule of the supreme court, form the record of the proceedings, which cannot be separated, and must go together ; and *thus form, the conveyance of the land*awarded to the common council in this case. (11 Wend. 149; 1 Phill. Evid. 385; Cow. & Hill’s Notes on same, 1059.)

4. The laws for improving streets in New York, are recognized by the revised statutes, and provide a mode of transferring real estate taken in cases of improving streets, peculiar to themselves, and different from the mode prescribed by the revised statutes for granting land in every other case, but equally legal and efficacious.

5. The order of the supreme court, confirming the report and proceedings of the commissioners, after due notice to all the parties concerned, published according to law; was a final decision, subject to review in the court of errors, and the owners in this case having omitted their writ of error within five years, are concluded, and cannot now review the proceedings by eject*105ment, after acquiescing seventeen years. (12 John. Rep. 31; 16 Wend. 371; 11 Wend. 154; 2 Howard, 319; 5 Pike, 424.)

6. The deed of Philip Embury to Margaret Jacot, of 11th May, 1821, was not recorded, and therefore, by the law of March 30th, 1811, (2 R. S. p. 406,) was void as respected *bona fide*purchasers. James Conner was such *bona fide*purchaser, as was also his grantee. No recovery can therefore be had as to the one-fifth of the premises in question, which the plaintiffs claim that Philip Embury conveyed to Margaret Jacot.

7. The plaintiffs and each and every of them, by receiving from the corporation the amount awarded by the commissioners, and by yielding up possession of the premises in question, and by their acquiescence in the possession of the corporation and their grantees, and by each of those acts, are estopped from impugning or denying the validity of the proceedings under which the premises in question were taken. (Smith’s Leading Cases, 467; 6 Adolp. & E. 474; 3 Hill, 219; 6 ibid, 47.)

8. The proceedings to widen Ann street, having been commenced and carried on under authority of a statute, and the land in question taken under such statute, and no objection having been made to the validity of the statute, or the legality of the proceedings, or the jurisdiction of the court, the proceedings, and all contracts acquired under them, will not now- be disturbed. (4 Pike, Arkansas R, 582; 24 Wend. 338; 5 Pike, 424.)

By the Court. Vanderpoel, J.

Some objections were taken to certain testimony offered by the defendants, and sustained by the judge at the *trial;*but as the ground on which we have concluded to dispose of the case, is broad enough to strike at the whole defence, and the evidence rejected, if admitted, could not, in our view, have varied the result to which we have come; I shall forbear to discuss the question, whether the judge was right in rejecting the testimony offered and overruled.

We see no difficulty in the claim of the plaintiffs, unless the same is barred by the proceedings to open Ann street. The several deeds and other matters given in evidence on the part *106of the plaintiffs, established their title to the premises in question, in the proportions described in their declaration.

. The principal question is, whether the proceedings of the corporation to widen Ann street, and the appropriation of the premises *by*them, divested the plaintiffs of their title, and vested the same in the corporation, under whom the defendants claim.

The commissioners proceeded under the 179th section of the act to reduce the laws of the city of New York into one act, (2 R. L. 416,) which provides in substance, that where only part of any lot or parcel of land shall be required for any improvement, leaving a residue, and the commissioners shall deem it expedient to include or comprise in their estimate and assessment the whole or a part of such residue, and shall so include it, then, on the confirmation of the report, the whole or part of such residue, so included in the assessment, shall be vested in the mayor, aldermen, and commonalty of the city. The premises in question were included in the assessment; the report of the commissioners was duly confirmed, by reason of which the defendants, who hold under the corporation, claim that the title became vested in the corporation.

Upon this point, we find an express adjudication in *The Matter of Albany Street,*(11 Wend. 149.) Chief Justice Savage, in commenting on the section under which the corporation has proceeded, says, that *“*The constitution, by authorizing the appropriation of private property to public use, impliedly declares, that' for any other use, private property shall not be taken from one and applied to the private use of another. It is in violation,” he says, “ of natural right; and if it is not in violation of the *letter*of the constitution, it is of its *spirit,*and cannot be supported.”

The constitution of 1777, did not delegate any authority to the legislature to take the property of one person and give it to another, with or without compensation. It ordained and declared, that the supreme legislative power within the state should be vested in the senate and assembly; (Art. 1 of Const, of 1777;) but this surely conferred no right to attack private property for private purposes. It also (Art. 13,) declared, that no member of the state should be disfranchised or deprived of *107any of the rights or privileges secured to the subjects of the state, unless by the law of the land, or the judgment of his peers. The words “ by the law of the land,” have been held to mean *“ by due course and process of law.” (Taylor*v. *Porter,*4 Hill, 140.) They do not mean, a statute passed for the purpose of working the wrong. (Ibid. 145.) Justice Bronson, in the above case, holds that the section was taken, with some modifications, from a part of the 29th chapter of Magna Carta, which provides, that no freeman shall be taken or imprisoned, or be disseised of his freehold, but by the lawful judgment of his peers, or by the law of the land. (2 Story on Const. 661, § 1783.)

But if this part of the act of 1813, were within the constitutional powers of the legislature, at the time of its enactment, the constitution of 1821 abrogated it, by declaring that private property should not be taken for public use, without just compensation. (Const. of 1826, Art. 7, sec. 7. *Matter of Albany Street,*11 Wend. 149. *Bloodgood*v. *Mohawk and Hudson R. R. Co.,*18 Wend. 59. 19 Wend. 659, 675. *Taylor*v. *Porter,*4 Hill, 140.)

In *Bloodgood*v. *The Mohawk and Hudson R. R. Co.,*(18 Wend. 59,) Mr. Senator Tracy says, these words of the constitution should be construed “ as equivalent to a constitutional declaration, that private property, without the consent of the owner, shall be taken *only*for the public use, and then only upon a just compensation.” Justice Bronson, without questioning the soundness of this view, seems to think that the case stood stronger upon the first member of the clause, “ No person shall be deprived of life, liberty, or property, *without due process of law*holding that these words cannot mean less than a prosecution or suit, instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt, or determining the title to property. We are, therefore, on the most conclusive authority, bound to say, that the provision of the act of 1813, under which the corporation, or the commissioners in their behalf proceeded, in respect to the premises in question, is unconstitutional.

2. It is contended, that the plaintiffs, by receiving from the *108corporation the amount awarded hy the commissioners, and by yielding up the premises to them, are estopped from denying the validity of the proceedings under which the premises were taken, and have, by those acts, given a binding consent and ratification'to the proceedings.

This strikes us as the only question in the cause worthy oí serious consideration ; the former having been previously ruled in direct terms.

In undertaking to take the property in question, the commissioners assumed to exercise the power conferred upon them by this unconstitutional act. The report of the commissioners does not proceed on the ground, that they had taken the portion of the lot in question, which was not required for the widening of Ann street, with the express assent of the plaintiffs. On the contrary, the corporation proceeded on the ground that the title of the plaintiffs was divested by the confirmation of the report, whether they consented or not. The statute in question does not provide for any parol assent; and sitting in a court of law, we cannot see how any such assent which might have been given by the plaintiffs, could have operated to divest their title to the land. The statute of frauds, (2 R. S. 134, § 6,) provides, that no estate or interest in lands, other than leases for a term not exceeding one year, shall be created, unless by act or operation of law, or hy deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or his agent, authorized by writing. This creates an insuperable difficulty in the way of the defendants. There is no estoppel by deed here, nor is there any thing in the acts of the parties to constitute an estoppel *in pais.*The acceptance by the plaintiffs of the money awarded by the commissioners, could not divest the legal title of the plaintiffs to the land in question, nor constitute an estoppel *in*pais, to preclude them from asserting their title. The plaintiffs were clearly entitled to part of the money awarded to them. It was assessed or awarded to them as an entire sum; nor was there any right to apportion it; neither could they say to the corporation, “ We will take part of this money, just enough to cover the land you actually appropriated to public use, and ■ reject the. residue.5’ *109They had no means of ascertaining the amount due for that portion of the land, as to which their title became divested, by the confirmation of the commissioners report. They were obliged to take the whole or none. The corporation did not take or sell the premises on the ground, that the plaintiffs had accepted the sum awarded; for they sold and conveyed to the defendant, J. Conner, before the money was paid to the plaintiffs. We cannot say that the corporation would not have taken the land, had the plaintiffs refused to accept the amount awarded to them. On the contrary, they claimed the right to take and sell the land, the moment the report was confirmed, and before the award was paid.

The legislature had thrown these owners helpless, at the feet of the commissioners. According to the act, they had no option to part with their property or not. No act of theirs, induced the corporation to part with its money. If there could be such a thing as an estoppel *in*pais, in a court of law, every element of such estoppel is here wanting. Peter Embury was a resisting party, and did not lead the corporation into the taking of the property. As the statute under which the proceeding was had, had no operation at all, the alleged assent is good for nothing. We have yet to learn, that a parol assent will, at law, convey a title to land. *(Dezell*v. *Odell,*3 Hill, 215; *Lyon*v. *Reed,*13 Mees. & Welsby, 285, 309.) As to estoppels, we refer to the American notes to Smith’s Leading Cases, in 28 Law Library, N. S. 467; and 2 Metcalf, 423, 431.

I have omitted to notice the objection to the plaintiffs title derived through the deed from Philip Embury to Margaret Jacot, executed in 1821; on the ground that it was not recorded, until after Conner received his conveyance from the corporation. As to this, it suffices to say, that the provision in the recording act, is intended for the protection of purchasers against previous grants made by their own grantor, of which they were ignorant. It has no application to a purchaser who derives his title from one claiming in hostility to all of the parties in the unrecorded deed.

There must be judgment for the plaintiffs.