author: Johnson, J.

text:
    The President, Directors, and Company of the City Bank of New Haven v. Simon Perkins.
    Nothing short of actual malajides, or notice thereof, will enable the indorser or acceptor of negotiable paper to defeat an action brought upon it by one who is apparently a regular indorsee or holder; especially where there, is no defense as to the indebtedness.
    As to anything beyond the bonajides of the holder, the defendant, who owe* the debt, has no interest.
    He cannot set tip, as a defense to an action on bills of exchange drawn 01 accepted by him, that the same were the property of a bank, and weri« transferred or pledged to the plaintiff, as security for a loan by the cashier who had no authority so to transfer or pledge them.
    It is sufficient, if the plaintiff’s title is good as against the defendant. If there are any others who claim a title to the bills superior to that of th« plaintiff, it can be determined whenever they come before the court to assert it.
    The cashier of a bank is the financial officer thereof, and the only person who can transfer negotiable paper belonging to the bank¡ His authority to make such transfer ex officio, for a legitimate purpose, is undoubted.

      Appeal from, the Superior Court of the City of .New York.
    The action was brought on two bills -of exchange of $10,000 each endorsed by the defendant, and two other bills of $5,000 each accepted by him. These bills bore date in August and September, 1854. The defendant denied his indebtedness, and also denied that the plaintiffs were the lawful holders and owners of said bills, and alleged that the bills belonged to the Bank of Akron, in the state of Ohio, or to its legal representative, the State Bank of Ohio. It appeared, upon the trial, that the defendant was indebted upon the bills, and the only question was whether the plaintiffs were legitimate holders. The facts áre as follows:
    In July, 1851, J. W. McMillan, cashier of the Bank of Akron, ajiplied to the president of the plaintiffs’ bank for a loan by the latter bank" to the Bank of Akron of $50,000, which loan was agreed to be made, and the terms and conditions thereof were arranged and agreed upon as follows: The loan was to be made in the bills of the plaintiffs’ bank. The amount advanced was to, be secured by the notes of McMillan individually, and endorsed by him as cashier, and also by a pledge of the discounted bills of the Bank of Akron to be placed in the American Exchange Bank of the city of New York for collection. The Bank of Akron was to pay four per cent per annum interest on the amount of the loan, and to protect the plaintiffs and the bills thus issued by a credit in the American Exchange Bank to the account of the plaintiffs, on being advised each week of the amount of bills redeemed by the plaintiffs. The bills were to be sent by express from New York in parcels to the address of McMillan, cashier of the Bank of „Akron, care of Y. C. Severance, cashier, Cleveland, Ohio, at the risk and expense of the Bank of Akron. The bills were sent accordingly in packages, commencing in August) 1851, and ending in January, 1852, when the whole amount of the loan had been sent. The packages were received and receipted by McMillan as cashier, who made his notes and endorsed them according to the agreement, which were sent to the plaintiffs as each package was received.
    On or about the 26th of September, 1857, the cashier of the American Exchange Bank was notified that $50,000. of the collection paper of the Bank of Akron, held by the American Exchange Bank, at any time, was pledged to the plaintiffs, and that it had been agreed that the amount of such collection paper should at no time be less than the indebtedness'of said Bank of Akron to the plaintiffs. On the 12th of January, 1852, a similar notice was addressed to the cashier of the American Exchange Bank, stating that $60,000 of the collection paper of the Bank of Akron was pledged as security for the loan of $50,00Q, and that it had been agreed that the amount of collection paper in the American Exchange Bank to be held for that purpose should at no time be less than that amount, so long as said indebtedness should exist.
    After the loan of $50,000 liad been completed, the several-notes which had been given by McMillan and endorsed as cashier, were surrendered by the plaintiffs, and a new note for the whole amount of $50,000, signed by McMillan, and payable to his order as cashier, and duly endorsed, ivas delivered and accepted in lieu of the notes surrendered. This note bore interest at four per cent, payable semiannually.
    On or before the 24th of October, 1854, $30,000 of the principal of this note had been paid, and all the interest thereon. The arrangement had been continued up to this time, and the weekly redemptions regularly provided for with the fupds of the Bank of Akron. Shortly after this the Bank of Akron failed to provide funds in the American Exchange Bank to meet the redemption of the bills loaned, and on the 11th of November, 1854, the plaintiffs demanded and received from the cashier of the last named bank the notes in question, which had been deposited there for collection by the Bank of Akron. These notes had been regularly discounted by the Bank of Akron and sent forward for collection to the American Exchange Bank, Avhere they were made payable. After they were received by the plaintiffs, they were left at the latter bank for demand and protest, and were finally sent to the plaintiffs, about the 4th of December, 1854, duly endorsed. On the 23d of November, 1854, the Bank of Akron committed an act of insolvency, whereupon, in pursuance of the laws of Ohio, all its property and assets vested in the State Bank of Ohio. It appears that the other officers of the Bank of Akron Avere wholly ignorant of this loan from the plaintiffs, and of the arrangements made for securing it, until a short time previous to the failure of the bank. The evidence tends to show that McMillan,, on pretence of obtaining a loan for the bank, had effected it on his own account, and used the funds for his own purposes, and that he had entered only a very small portion of the transactions between the two banks on the books of his own bank, and that the money received from the plaintiffs was credited to his individual account as it was received at the bank, and applied to his own individual use. It also appeared that McMillan had wrongfully appropriated a large amount of the funds of the bank to his own use. The packages of money sent, directed as aforesaid, were all received at the bank, opened and counted by the teller, put into the bank safe and paid out at its counter. The letters sent to McMillan, cashier, on the subject of the loan, were all received at the bank by the cashier or teller; whichever was present, and opened, read, and filed with the other correspondence of the bank. It also appeared that McMillan was the principal financial officer of the bank, and that he had the sole management and control of its affairs at and before the time of making the said loan, and up to a short time before the failure of the bank, when he resigned by reason of the discovery of his fraud. The president was in the habit of doing business at the bank, but made no investigation into its affairs, or inquiry as to the manner in which its business was conducted. The board of directors met twice in each year, January and July, but made, no examinations, trusting wholly to the cashier. The defendant’s evidence tended to show that the cashier had no authority to pledge the assets of the bank, without the consent of the board of directors. Upon the discovery of the fraud of McMillan, and his resignation, a new cashier was appointed, and the bank gave notice to the plaintiffs that it did not sanction the loan, and should hold them responsible for the money and the bills in question. It also appeared upon the trial that by a statute of the state of Ohio, in force when the loan was made and the money sent, it was made unlawful for any bank in that state “ to issue, pay out or give in exchange for other money, so as to go into circulation in this (that) state, any circulating notes or bills except the notes or bills of the banks of this (that) state, issued according to law.” The statute also provided that all contracts, promises and agreements, founded in whole or in part upon the payment, exchange or putting forth of sdch bank notes contrary to the provisions of the act, should be held and adjudged utterly null and void. The plaintiffs, at the time of maldng the loan, had no knowledge of this statute. The written proposition of the cashier, McMillan,- which was accepted by the plaintiffs for the loan of their bank issues, contained no provision or stipulation' hi regard to the place where the bills were, to be paid out or circulated. The plaintiffs’ cashier, in his testimony, states that the inducement to their bank to make the loan at so low a rate of interest was the circulation of their bills; and he adds that “the agreement was that the notes should be circulated in Ohio, and as we redeemed them, we were to be reimbursed for their redemption.”
    When the plaintiffs rested, the defendant moved for a dismissal of the complaint, on the ground that the plaintiffs had shown no legal title to the bills in question, even if they were creditors of the bank. That McMillan was the principal debtor, and had no authority to endorse for the bank or to pledge its assets either for the debts of the bank or for his own debts. The motion was denied, and the defendant’s counsel excepted. Several exceptions were taken to the rulings of the judge in. the course of the trial by the defendant’s counsel, but no point was made upon them here.
    When the evidence on both sides was closed, the judge directed the jury to find a verdict for the plaintiffs for the face ,of the bills, and interest; to which direction and ruling the defendant’s counsel excepted. The jury thereupon found a verdict in favor of the plaintiffs for $36,-541.95. The defendant made a case, with exceptions, and moved at the general term for a new trial, when the motion was denied, and judgment ordered for the plaint®; from which judgment the defendant appealed to this court.

      C. C. Langdell, for the appellant.
    I. McMillan had no power to borrow money of the plaintiffs on behalf of the Bank of Akron.
    1. The cashier of a bank, as such, has no power to borrow money for the bank. That is a power intrusted exclusively to the board of directors. A cashier, or any other agent, undertaking to exercise such a power, must show that he has authority for that purpose from the board of directors. (Hallowell & Augusta Bank v. Hamlin, 14 Mass. 180; Hartford Bank v. Barry, 17 Mass. 97.)
    2. There is nothing in the case to distinguish McMillan from ordinary cashiers, in respect to the power to borrow •money. The charter of the Bank of Akron ' expressly declares that its affairs “ shall be managed by not less than five nor more than nine directors,” and it does not recognize a cashier at all. Therefore, McMillan could derive no mthority from the charter. Nor does it appear that any authority was ever conferred upon him by resolution of the board of directors. Neither is the Question at all affected by the evidence respecting the mode of conducting the. business of the Bank of Akron. It is admitted that McMillan was the chief executive officer of the bank; but that did not enlarge his powers. Every cashier is presumed to be the principal executive officer of his bank, and to be clothed with all executive powers, but these do not include borrowing money. The fact that the directors did little or nothing is not material; the cashier derives no power to act from the inaction of the board of directors. The evidence should show what was done by the cashier; not what was left undone by the board of directors. It is true, McMillan testifies that he borrowed money for the bank, but he gives no particulars; it doe's not appear whether it was once or twice; whether it was with or without the' knowledge of the board of directors; whether it was by their authority or without it; whether they, approved or disapproved of it. No inference whatever can be drawn from a statement so entirely loose and vague. Nor did the plaintiffs make the loan in the belief that McMillan had any other powers than such as ordinarily belong to cashiers of banks; for they had no knowledge or information upon the subject. They dealt with McMil lan entirely upon the strength of a letter of introduction from the cashier of the American Exchange Bank.
    3. Since the making of the loan, it has not been in any manner adopted or ratified by the Bank of Akron. As to any express ratification, it appears, without contradiction, that the directors of the bank were wholly ignorant of the loan until the 16th of November, 1854, and that, on the following day, their president, by their direction, wrote to the plaintiffs, repudiating the entire transaction in the most positive terms. Notwithstanding such ignorance, if the money borrowed had been applied to the use-of the bank, it could not, perhaps, have repudiated the debt, while retaining the benefits accruing from it. But here again the proof is uncontradicted that McMillan borrowed the money for his own use, and that not a dollar of it ever enured to the benefit of the «bank. In the case of Beers v. The Phœnix Glass Company (14 Barb. 358), cited and relied upon in the court below, it not only appeared, from the previous course of business, that the secretary was fully authorized to borrow the money for which the suit was brought, but the facts proved warranted the presumption that the money was in fact borrowed for the company in good faith, and applied to its use. The defendants made no attempt to rebut this presumption; and, for any thing that appeared in the case, the loan may have been made with the full knowledge and sanction of the board of trus. tees. It is undoubtedly true, as a general proposition, that notice to an agent, as such, of a matter within the scope of his authority, is in law notice to the principal, as between the latter and the person giving the notice, for all the purposes for which the notice is given. But notice to an agent of matter not- within his authority, is no notice to his principal; and notice to an agent is never notice to his principal as between the latter and third persons, or as to any matters in reference to which the notice was not given. The present case furnishes an illustration of these distinctions. Thus, notice from the plaintiffs to McMillan, of any matters relating to the loan in question, would not affect the Bank .of Akron, for if McMillan had no authority to make the loan, he had no authority to receive any notice respecting it.. On the other hand, notice from the American Exchange Bank to McMillan, of any matter relating to the ordinary business between the two banks, would be notice to the Bank of Akron as to such business; but it would be no notice as to other distinct matters, nor any notice for any purpose as between the Bank of Akron and third persons.
    II. Assuming the loan to have been valid and binding upon the Bank of Akron, the cashier had no power to pledge the property of the bank as security for its repayment. The fact that the property-consisted of negotiable paper,. is wholly immaterial, the rights of a subsequent bona fide holder not being in question. (Hoyt v. Thompson, 1 Seld. 320.)
    III. Assuming that McMillan had power to borrow money for the bank, and to pledge its property as security for repayment, still, as he was committing a fraud upon the bank by borrowing money in its name for his own use, and pledging its property for the payment of a debt really his own, the plaintiff can not hold the property so pledged, they not being in the position of purchasers for a valuable consideration. To constitute one a purchaser for value, he must have parted with value on the faith of the. specific property in question, or on the faith of. other specific property for which the property in question has been substituted. The plaintiffs have clone neither. They parted with all the money nearly three years before the bills in question were in existence; nor' did they part with it on the faith of any other specific property for which these bills have been substituted. The most that can be said is that these bills were received in pursuance and execution of a previous contract; but that does not make the plaintiffs purchasers for value within the meaning of the rule. The contract was not applicable to any particular bills, and while it remained unexecuted it clearly created no lien upon anything whatever. It appears that the plaintiffs’ presiden! selected, such bills as he chose; but it is impossible that the mere election of the plaintiffs to take these bills instead of others, should make them purchasers for value. (Stalker v. McDonald, 6 Hill, 93.)
    IY. The contract between the plaintiffs and the cashier of the Bank of Akron was illegal and void, as being in violation of a law of the state of Ohio, where it was to be performed. The plaintiffs, therefore, acquired no title to the bills sued on, having received them as security for a void and illegal contract. The case of Dewitt v. Brisbane (16 N. Y. 508), is directly in point to show that such would be the result upon a suit brought in the state of Ohio; and the case of Hyde v. Goodnow (3 Comst. 269), is in point to show that our courts will give the same effect to the laws of Ohio that the courts of Ohio would do, even as against our own citizens. Much more will they do so in a case like the present, where a foreign corporation is suing a citizen of Ohid in this state, upon a controversy to which this state and its citizens are total strangers, and in which they have not the slightest interest; and where the suit was commenced for the express purpose of withdrawing the controversy from the state of Ohio, where it properly belonged, and where it was already m train for adjudication. We have already shown that the plaintiffs are entitled to no particular favor from the courts of this state; but there are other reasons why they should not have been regarded even in the state of Ohio with that degree of favor which they seem to. have found in the court below. The real contest is not between the plaintiffs and the defendant (who has no real interest in the controversy), nor between the former and the Bank of Akron (which long since ceased to exist), but between the plaintiffs and the bona fide creditors of the Bank of Akron, of the validity of whose.claims there is no question, and who trusted the latter bank upon the credit of those assets which the plaintiffs seek to appropriate exclusively to their own use. The question is whether the assets of the Bank of Akron shall be appropriated, in the first instance, to the payment of a debt fraudulently contracted by McMillan for his own benefit, to the exclusion of the bona fide creditors of that bank, who had no participation in McMillan’s fraud, and are in no degree responsible for it. The plaintiffs urged .in the court below that the defendant should not be heard with favor, because he admitted that he owed the money to some one, and was volunteering a defense on behalf of other persons. But the plaintiffs having entrapped the defendant by serving process on him while passing through this state, he has taken the only course that he could take under the circumstances, with safety to himself and justice to others, viz: by defending the suit on behalf of the State Bank of Ohio, and at their expense. The consequence of any other course would have been either that the defendant would run the risk of paying the money twice, .or the State Bank of Ohio would have its rights adjudicated upon without a hearing.

      B. W. Bonney, for the respondent.
    I. The bills of exchange in suit were respectively accepted and endorsed by the defendant, and regularly discounted Tby the Bank of Akron. The defendant owes the amount of those bills, and admits his indebtedness, but denies that the plaintiff is the lawful holder of the bills or entitled to collect them. So far as appears in this action, he is the only person who questions the plaintiff’s title.
    II. It is conclusively proved that the plaintiff, in February, 1851, at New Haven, in Connecticut, agreed to lend to the Bank of Akron $50,000, on the security of a pledge of bills of exchange, discounted by the Bank of Akron and sent to the "American Exchange Bank, in New York, for collection; that the sum of $50,000 was, pursuant to such agreement, advanced and lent by the plaintiff to the Bank' of Akron, and by order or letter addressed to the American Exchange Bank, that bank was advised that bills of exchange, discounted by and belonging to the Bank of Akron, sent to the American Exchange Bank for collection to the amount of $60,000, were duly pledged to the plaintiff to secure the payment of said loan; that in October, 1854, $20,000 of said amount loaned remained due to the plaintiff, and the bills of exchange now in question, which belonged to the Bank of Akron, and had been sent to the American Exchange Bank for collection, were received by the plaintiff from the American Exchange Bank under said pledge, and are now sought to be collected by the plaintiff as such pledgee.
    HI. The bills in question are all regularly endorsed, and the plaintiff’s prirna facie title thereto is perfect.
    TV", The pledge made to the plaintiff by the Bank of Akron authorized the plaintiff, at any time before said loan was paid off, to take and receive from the American Exchange Bank bills of exchange belonging to the Bank of Akron, sent to the American Exchange Bank for collection to an amount not exceeding $60,000, and, as such pledgee, to demand and collect such bills of exchange as the lawful holder thereof. • » ■

    V. John W. McMillan, cashier of the Bank of Akron, had, as such cashier, authority to borrow money for the use of said bank, and to secure the repayment of the loan by pledge of the bills of exchange or other property of such bank. (Farmers and Mechanics' Bank v. Butchers and Drovers' Bank, 16 N. Y. R. 125, 133; Curtis v. Leavitt, 15 N. Y. R. 51, 62 to 66, 169, 219 to 223, 262, 267 to 270; Lafayette Bank v. State Bank of Illinois, 4 McLean's R. 208; Angell & A. on Corp. 5th edition, sec. 299, 300; Bank of Vergennes v. Warren, 7 Hill, 91; Commercial Bank of Buffalo v. Kortright, 22 Wend. 348; Hartford Bank v. Barry, 17 Mass. R. 94; Folger v. Chase, 18 Pick. 63.) Besides his implied authority as cashier, it is proved that said cashier, at the time of the transaction in question, was entrusted with and exercised the control of the Bank of Akron, and had the management of all its business.
    VI. The contract for the loan in question was made at New Haven, in the state of Connecticut, and with reference to the laws of that State, and there the money was to be repaid. The contract must be construed, and its legality determined- by the law of the place where the contract was made, and where it was to be performed. (Curtis v. Leavitt, 15 N. Y. R. 91, 230, 296, and case's there cited; Babcock v. May, 4 Ohio R. 334, 348; Van Cleef v. Therasson, 3 Pick. 12.)
    VII. There is no allegation or pretense that the contract between the plaintiif and the Bank of Akron violated any law of the state of Connecticut, or would be in that state invalid, -or that any right or interest of the state of New York, or of its citizens, can be thereby injured or impaired. The courts of the state of New York will, therefore, enforce the contract. (Merchants' Bank v. Spalding, 12 Barb. 302; Same case (in Appeals), 5 Selden, 53; McIntyre v. Parks, 3 Metcalf, 207; Pellecat v. Angell, 2 Cromp. Mees. & Rose. 311; Reznor v. Hatch & Langdon, 7 Ohio State R. 248, 255.)
    VHI. There is no proof or ground for pretense that the plaintiffs, in the transaction with the Bank of Akron, intended to violate any law of the state of Ohio, or did any act intentionally to promote or aid any such violation; or even had knowledge that by any law of the state of Ohio, the circulation o'f the bills of foreign banks by the banks of Ohio was prohibited, and this action would be sustained in Ohio. (Merchants' Bank v. Spalding, 5 Selden, 53-63.)

    IX. The court will not be astute to so construe the law or apply the evidence as to sustain the defense in this action. It is proved, and not denied, that the defendant owes the amount of the bills in suit, and that the plaintiff holds them for full consideration paid in good faith. The defense is, therefore-, unjust and inequitable, and, to be successful, must be fully and strictly made out. Every intendment will be against it.
    X. There was no error in any ruling or decision of the judge presiding at the trial, nor in his direction to the jury' to render a verdict for the plaintiff. The judgment of the superior court was correct, and should be affirmed with costs and ten per cent damages.
   Johnson, J.

In the view I take of this case, it is wholly unnecessary to inquire whether the contract between the plaintiffs and McMillan, the cashier of the Bank of Akron, in pursuance of which the bills in question were endorsed to the plaintiffs, was in all respects valid and binding upon said bank, as between it and the plaintiffs. The bank of Akron is not a party to the action, nor is its legal representative, the State Bank of Ohio. The defendant claims no title -to the paper, and does not pretend to have any interest in it, except as a promisor-, liable to pay to any proper holder. There is no party before the court who has any legitimate 'interest in 'questioning the plaintiffs’ title, or who- has, as it seems to me, under the circumstances of this case, any right to be -heard on that question. There is no connection shown between the defendant and the State Bank of Ohio which represents the Bank of Akron. It is not shown or pretended that the defendant has been forbidden to pay the bills to the plaintiffs, or even requested not to do so; and, for aught that appears, the State Bank of Ohio acquiesces in the plaintiffs’ claim of title to these obligations. It is of no consequence whatever that the Bank of Akron undertook'to repudiate the transaction by giving .notice to the plaintiffs before its insolvency. All its rights, as the case shows, are now vested in the State Bank of Ohio, and the latter bank may, upon better advisement, conclude never to contest the plaintiffs’ claim. The legal presumption is that it does not .ntend to do so, as the contrary is not shown. The defendant stands here, therefore, as a mere volunteer, in behalf of others not before the court, and who make no claim on their‘own account. Confessedly he owes the debt. He has no defense, whatever, on his own account, and should he succeed in defending, on the grounds on which the litigation seems thus far to have proceeded, he may escape the payment of a just debt altogether. This the court should not allow in a case like this, except upon clear and well-established grounds. It will be time enough to determine whether any other person has a better title, when such person shall éome before the court to claim the bills in question, or their proceeds, from the plaintiffs. Upon what grounds, then, can the defendant, as a mere debtor, be permitted to defeat the action? It has been held that' if a defendant can show that the plaintiff obtained the note by his own fraudulent act, he has a right to defeat the. action on that ground, although he may be liable to pay the note to the true owner. (Talman v. Gibson, 1 Hall, 308.) Oakley, j., in delivering the opinion in that case, says: “ This proceeds on the general doctrine that no man can acquire a right, by his own fraud, to sustain an action in any court; and it is a principle of general application.” In that case, however, it appears that the defense was set up for the defendant by one Hyslop, who claimed to be the true owner of the note and had demanded it of the plaintiff. The same principle was adopted by this court in Houghton v. McAuliffe, decided at the last December term (reported 26 Howard’s Practice Eeports, 270). The action was against the makers, who refused to pay on the ground of the illegality of the transfer to the plaintiff. It was held that the transfer of the note was contrary to the statute, and that the party who transferred it to the plaintiff was guilty of a criminal offense in obtaining the note, and could transfer no title to any one having notice that it belonged to another; and that the plaintiff, under the circumstances, must be deemed to have notice that the note belonged to the company to which it was given, and not to the person of whom he purchased it.

And so the finder of negotiable paper, or the thief who steals it, acquires no title, although either may transfer a good title to a bona fide purchaser. (2 Parsons on Notes and Bills, 265 to 270 inclusive, and cases there cited.) The same rule would, I suppose, apply to the case of one obtain ing such paper through any positive breach of law. But as I understand the rule, nothing short of actual malafides, or notice thereof, will enable a maker or endorser of such paper to defeat an action brought upon it by one who is apparently a regular endorser or holder; especially where there is no defense as to the indebtedness.

This rule is founded in the most obvious dictates of reason and sound policy, and should be inflexibly maintained. As to anything beyond the bona fides of the holder, the defendant, who owes the debt, has no interest. This was held in Gage v. Kendall (15 Wend. 640.) The defense in that case was, that the plaintiff did not own the note, although he appeared to be the endorser; and that the action had been commenced without his knowledge or consent, or any notice of, or assent to the pretended transfer to him. But it was held that the owner had the right to fill up the blank endorsement with any name he pleased, and the person whose name was thus used would be deemed on record as the legal owner; and that whether he was so in fact or not, he could sue as trustee for the real owner, and the defendant had no' concern with the question. The court sáy it was not a case of mala fide possession, and remark: “Why should, the defendant give himself the trouble to investigate the plaintiff’s title? He owes the money to some" one.” The principle of that case applies here, with full force. There is no ground for pretending that the plaintiff’s possession is mala fide. Upon the face of the .bills, their title is complete and perfect. They belonged to the Bank of Akron,' and were regularly transferred to the American Exchange Bank by the endorsement of McMillan as cashier of the Bank of Akron. He was the financial officer of the latter bank, and the only person who could thus transfer them. His authority to make such transfer ex officio for a legitimate purpose is undoubted. (Ang. and.Ames on Corp. 296; 2 Parsons on Notes and Bills, 7; Fleckner v. The Bank of the United States, 8 Wheat. 338.)

I do not understand that any question is made in behalf of the defendant in respect to the validity of the transfer to the American Exchange Bank; or .but that the defendant might have been compelled, by action brought by that bank, to pay the amount of the bills. The point is, that the cashier had no authority to pledge the bills while there to the plaintiffs as a security for the loan, and therefore the transfer by that bank under the authority, or by the direction of McMillan to the plaintiffs is void, and confers no title upon the latter. But it is very clear that the plaintiffs were acting in good faith—all the time supposing and believing that they were, in fact, dealing with the Bank of Akron, and with no one else, and took the bills in question without any-notice or suspicion of any fraudulent conduct, or excess of authority, on the part of McMillan, the cashier. That must be sufficient as against the defendant, who is without defense upon, the obligations themselves. And even if it should be held as between the Bank of Akron, or its legal representatives, and the plaintiffs, that the lat-. ter were bound to inquire into the authority of the cashier and take notice of its extent (as to which I shall express ' no opinion), it is a question which in no way concerns the defendant, and upon which he cannot be allowed to defend, and escape the payment of his obligations. . It is enough that the plaintiffs make out a title free from mala fides on their part, and which is every way sufficient for his protection. The issue, beyond that between the parties before the court, is wholly,immaterial; and if established against the plaintiffs, would constitute no defense to this action. The title is good as against the defendant, and that is sufficient. If there are any others who claim a title to the instruments superior to that of the plaintiffs, it can be determined whenever they come before the court to assert it.

The point that the whole transaction is void, as a positive breach of the laws of the state of Ohio, is untenable. The contract was not made in that state, and was not to be performed there; it was made in the state of Connecticut, and was to be performed there; and there is no pretense that it infringed any law of that state.

It was not an essential part of the contract that the bills of the plaintiffs’ bank should be circulated in the state of Ohio. The borrower might have circulated them elsewhere, or withheld them from circulation altogether, without any violation of the contract. It is quite possible that the plaintiffs might not be able to enforce their contract in the courts of the state of Ohio. As a general rule, no people are bound to enforce, or hold valid in their courts of justice, any contract which is injurious to their public rights, or offends their morals, or contravenes their policy, or via< lotes a public law. (2 Kent’s Com. 458.) Though I am inclined to the opinion that even then a contract of this kind would be enforced, notwithstanding their statute. It is quite certain that our courts would enforce it under similar circumstances against one of our own citizens. In this respect it would be analogous, in principle, to the cases of The Merchants' Bank of New York v. Spalding (5 Selden, 53); and Tracy v. Talmage (14 N. Y. R. 162.) Certainly it does not violate any law of Connecticut or of this state, and we could scarcely be expected to give any stich extraordinary effect in our courts to a statute of Ohio as to hold that the contract cannot be enforced here. My conclusion is that the judgment is right, and should be affirmed. .

All the judges concurring, judgment affirmed.


source: Caselaw Access Project

author: Selden, J. Hogeboom, J.

license: Public Domain

text:
    The Long Island Railroad Company v. Nathaniel Conklin and Emily A. Conklin.
    A deed of land to a railroad company, after describing one parcel, by metes, and bounds, and stating that it was to be for the uses and purposes of the road proper, and contained an area of sixty square rods, proceeded as follows: “Also, in addition to which said sixty square rods, the Long Island Railroad Company may be further entitled to an extra additional width of seventy feet on the south side of said railroad, for the use's and purposes of a side track, engine house, depot,” &c., “provided such buildings may be used for purposes of railroad only, and which-additional land, contains an area of sixty-four rods,” &c., “ to have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said parties of the second part, their successors and assigns •forever,” concluding with the usual covenant for the quiet and peaceable possession of “the said premises” by the grantors, theii successors and assigns forever:

      Held, that the deed was sufficient to pass to the grantees the title to both the parcels of land described therein.
    That the meaning of the deed was this: “ In consideration of one dollar, we have granfed, bargained and sold to the railroad company sixty-four square rods of land for their road proper; also seventy rods, in addition, which they may be entitled to for a side track, engine house,” &c.

      Held, also, that if any doubt existed in regard to the construction and effect of the deed, the covenant for quiet enjoyment of the property by tho grantees, estopped the covenantor, and those claiming under him, from interfering with such enjoyment.
    This is an action of ejectment, to recover possession of a piece of land seventy feet wide and two hundred and fifty ■ feet long, on the south side of and adjoining the track of the Long Island Railroad, at Deer Park station, Suffolk county. On the trial, before Mr. Justice Lott, at the Suffolk circuit, in October, 1859, the plaintiffs claimed the premises by virtue of a deed from Edward Dodd, (who was the "owner at the date of the deed,) the material portions of which are as follows: “The said party of the first part,” (Dodd and wife,) “for and in consideration of one dollar, to them in hand paid, * * * have granted, bargained, sold, aliened, remised, released, conveyed and confirmed, and by these presents do grant, bargain, sell, alien, remise, release, convey and confirm, unto the said parties of the second part,” (the plaintiffs,) “and to their successors and assigns forever, all that certain piece or parcel of land, situate, lying and being in the town of Huntington, county óf Suffolk and state aforesaid, being known and bounded as follows: Commencing at a point on the ,-oad leading from Dix Hills to Babylon, commonly called he straight path, where the location of the second diviion of the Long Island Railroad crosses the same, and whence along said railroad, the centre line of which bears lorth seventy-nine degrees east, a distance of two hundred tnd fifty feet, and which said line of road is to have a uniform width of four rods, for the uses and purposes of the 'road proper, and comprises an area of sixty square rods. Mso, in addition to which said sixty square rods, the Long Island Railroad Company may be further entitled to an extra additional width of seventy feet on the south side of said railroad, for the uses and purposes of a side track, engine house, depot, or such buildings and appendages to said road as may be considered necessary, provided such buildings may be used for purposes of said road only, and which additional land contains an area of sixty-four square rods, more or less, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging,” * * * “ to have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said parties of the second part, their successors and assigns forever.” The deed concluded with the usual covenant on the part of Edward Dodd, for the quiet and peaceable possession of “the said premises,” by the parties of the second part, their successors and assigns forever. Soon after the date of this conveyance to the plaintiffs, which was in December, 1841, the plaintiffs built an engine house, which stood partly upon the premises in question, and a turn-out track was constructed, running into it. This, however, was removed about a year afterwards to another station. They subsequently constructed a second building for an engine house, partly on the same premises, which remained from 1844 to 1854, and subsequently a tool house, on the same ground, which remained in use by the plaintiffs to the time of the trial. Some time after 1850, the owner of a paper mill in the neighborhood built a house for storing paper on the seventy feet, with the consent of the defendants’ grantor, and the builder paid rent to such grantor until the time when he conveyed to the defendants. The vacant premises were used by the plaintiffs, and by persons having wood for market, for storing wood. The plaintiffs gave their consent to the owners of the wood, for such use, but made no charge for it. The whole prémises, at the time of the conveyance to the plaintiffs, were covered with timber, and the plaintiffs’ grantor cut and removed the timber without objection from the plaintiffs.
    In 1855, the son and heir of Edward Dodd, (the father having died previous to that time,) sold and convéyed the whole seventy feet to the defendants, who, in 1856, erected a store thereon, at a "cost of $1,500, of which they were in possession at the commencement of the action, claiming title to the whole seventy feet.
    On these facts the judge at the circuit dismissed the complaint, on the ground that the deed of Dodd and wife to the plaintiffs did not, by its terms, convey such an interest in the premises claimed as would sustain an action of ejectment. The plaintiffs appealed to the general term, where the judgment dismissing the complaint was reversed and a new trial ordered. From that judgment the defendants bring the present appeal, stipulating that final judgment be rendered, in case the order for a new trial shall be affirmed. The causé was submitted on printed arguments.

      J. Lawrence Smith, for the appellants.
    The complaint was properly dismissed. The plaintiff had not such a valid subsisting interest in the premises as is required to sustain an action of ejectment. (2 E. S. 303, § 3, 5th ed. vol 3, p. 592.)
    I. The deed clearly did not convey a present interest in the premises. The terms used in it in relation to this tract of land are widely different from those used in relation to the first described tract. The first tract is conveyed positively by the usual words. The person who drew the instrument well knew, it would appear, what are the proper words of conveyance, and actually used such words. If the fee of the second tract was intended to be conveyed, why were not the same terms used? “ Also, in addition. to which sixty rods, the company may be further entitled to an extra additional width of 70 feet,” &c., 11 for the use and purposes * * * provided,” &c. There was nothing to call for this change of phraseology, if it was intended to convey a present interest in the whole of the premises; and the absence of such intention is the only rational explanation of this change of phraseology. The words used are equivalent to saying the four rods are sufficient for present purposes, but you may, at some future time, upon the occurrence. of some future event, be further entitled, &c. The question naturally arises, when and upon what conditions may they be so entitled? The deed being ambiguous, we may resort to the context to assist us in its construction. We may also resort to the construction which the parties have themselves put upon it by their own acts. The acts of the defendant and his grantors have been open and notorious—indicating, without ambiguity, a claim of absolute ownership. The habendum clause in the deed does not help the plaintiff. The office of the habendum is to limit the certainty of the estate granted, It is in the premises of the deed that the thing is really granted.' (4 Cruise Dig. 272. sec. 67; 273, secs. 73, 75; Jackson v. Ireland, 3 Wend. 99; et vide Sumner v. Williams, 4 Mass. R. 162.) But the deed did not convey, either in presentí or futuro, a legal title in the land. “ May be entitled,” “ for the uses,” &c., “provided,” &c.' The most that it was intended that the plaintiffs ever should have was the right to use the land, or such portions of it as might be necessary. The legal title remained in the grantor; and he could bring an action of ejectment or trespass against any one who injures the land, or appropriates it to any other use than the servitude. (15 Barb. 358.) And even if viewed as conferring a presr ent interest, the grant must be construed to be only an easement; and ejectment will not lie for an easement. (The North Turnpike Co. v. Smith, 15 Barb. 358; Adams v. The Saratoga & W. R. R. 11 Barb. 414; Child v. Chappell, 5 Selden, 246.)
    II. We are not here to ascertain what are the plaintiffs’ rights (if any) under the deed. The question simply is, Have they 'the right to recover in this action? To entitle them to recover, they must have the legal estate; (Jackson v. Demont, 9 Johns. 60; Wright v. Douglass, 3 Barb. 554; Adams on Ejectment, 43; Carroll v. Norwood's Heirs, 5 Har. and Johns. 464;) which we have shown they have not. An equitable title cannot prevail against the legal estate. (Jackson v. Sisson, 2 Johns. Cas. 321; Jackson v. Harrington, 9 Cow. 88.) The jury could not, under the evidence in this case, have found a verdict for the plaintiffs, under either subdivision of § 23 (§ 30) of the statute relative to ejectment. . (3 R. S. 5th ed. 594;- 2 R. S. 1st ed. 307.) The learned judge who delivered the opinion in the court below coincides in all the positions above taken. He admits, that by the terms of the deed, no title exists in the grantee. But he assumes that, from the whole tenor of the deed,' it was the intention of the grantor to pass a fee. Starting on this theory, he reconstructs the deed to adapt it, as he. thinks, to that position. It is submitted, that it is the business of the courts to construe deeds, not to make them. The learned judge cites some cases where one word has been substituted for another in construing deeds and wills; but it will be borne in mind, that in all' those cases the word was so substituted to carry out the manifest intention of the grantor. Certainly no one, be he lawyer or layman, can say, after reading this deed, that it manifests a clear intention, on the part of the grantor, to convey a present estate in the lands in controversy, and no authority cited by the learned judge, ór any argument used.by him (we say it with all due deference), helps or tends in any way to warrant such a conclusion. The learned judge insists, that although the words we are construing do not manifest the intention he suggests (and the habendum clause does not do it), yet the other portions of the deed—i. e., the words of bargain and sale—manifest such intention; and cites the case of Jackson v. Delacroix (2 Wend. 433), in support of his position. That case, if it has any bearing on this one, is adverse to the position of the judge. There, the court was construing an instrument concerning the letting of premises; and though it contained words of present demise (as do the formal parts of the deed in this case contain words of grant); but, subsequently, there was inserted an agreement by the owner to make alterations, &c., and by the other party to take a lease when the alterations should be made; and the term was stipulated to commence from the time that the improvements were so made. The words of the present demise were disregarded, and the instrument was held not to be a lease, but an agreement for a lease. So in our case the words of bargain and sale, so far as this tract of land is concerned,' may be disregarded; and they are, as they were used in the lease above referred to, mere formal words. So it may be perfectly consistent that the words of bargain and sale, and the habendum and warranty clauses, may be applicable to the first piece of land, and not to the second. In other words, a deed of bargain and ‘ sale of one piece of land may be perfect in itself, and yet contain independent covenants and provisions relative to another piece. The learned judge assumes that this whole instrument is a deed of bargain and sale, and nothing else; and theú insists, “ that if the words we are construing were not inserted for the purpose of giving the railroad company a title, it is impossible to say what object the parties had in view.” We think the judge here assumes too much. The instrument may well be a bargain and sale for the first tract, and a contract0 to convey the premises in question That the terms of this contract, or the circumstances undei which it should be consummated, are left vague and uncer tain, is not more surprising than that the parties should adopt the instrument at all, in its present form. If the parties intended a mere bargain and sale of the whole, wi* again ask—if the parties- so intended—why did they nol manifest that intention by appropriate words, such as they had already used in relation to the first piece? It is impossible to say that they so intended, when they, apparently with deliberation, went out of their way to use language which the judge admits is entirely inappropriate to that.purpose. The fact that the judge cannot say what object the grantor had in view, is no argument to show that the grantor intended to do as it is insisted he did. We are here, not to ascertain what object other than a grant the party had in view, but simply to ascertain if a grant was intended; and if we find that it was not so intended, that is enough for our purpose—it is not our business to say what else he did intend.
    III., Having arrived at a conclusion satisfactory to.itself as to the intention of the parties, the court below proceeds to amend the deed .so as in its opinion to carry out that intention, by inserting the word “ shall” in lieu of the word “ may.” We are at a loss to see how the construction of the deed is helped by that change, or how the ambiguity would have been less patent if the deed had originally contained the word “shall” instead of the word “may.” The arguments above used, as to the change of phraseology, will apply equally to the language of the deed as amended by the court below. It appears to us that the court, in order to effectually carry out its theory, should have gone further and struck out all the words, between “also” and “an”; then the intention would be manifest, and the deed unambiguous. Such a liberty the court would hardly have taken. • The learned judge asserts that the deed is to be taken most strongly against the grantor. This, undoubtedly, is one rule of construction, but can apply only to the deed as actually made by the grantor. Where it is sought to give a deed an additional effect by reforming, a reverse rule of construction should be adopted.

      George Miller, for the respondents.
    I. The deed in question, if it conveyed any interest in the premises secondly therein described, conveyed the land itself with a limitation as to the use to which it should be appropriated, and not a mere easement or incorporeal interest authorizing a use of the land for certain purposes. ' The position that an easement only was intended to be conveyed is now taken for the first time; we never heard the suggestion before. We think it very clear tliat the operative words of the deed, whether they operate as a conveyance or an agreement to convey, take effect on the land itself and do not merely give a right to exercise certain privileges upon it. The land first described in the deed is conveyed absolutely in the strongest terms, yet with a qualification as to its use. It is only for the uses and purposes of the railroad; for any other purposes the company could not' use it. Then an additional width of seventy feet, which is called additional land before the end of the sentence, is conveyed, or agreed to be conveyed, .with more specific provisions as to the use it shall be put to by the company, and the use that shall be made of the buildings that the company may erect upon it; and then all the estate, right, title, interest, etc., of the grantors are conveyed in the fullest and most ample manner. Besides, we believe the right to permanently and exclusively occupy land with buildings is not a right which the law enumerates with easements or servitudes. (3 Kent. 434.) We imagine that if the grantor should enter against the will of the company upon any of their erections made upon the land he would be a trespasser. An absolute control of the premises by a railroad company, where they put any of their erections for the purpose of their business, would be indispensable. All the charters of such companies give them a right to take the land for their purposes, not a mere right to use the land as an easement.
    II. The only question in this cause is whether the deed from Dodd to the railroad company conveyed a present interest in the premises therein secondly described. The first question is, was it the intention of the parties to the deed that a j>resent interest should be conveyed by it? And secondly, is the language of the deed sufficient to effectuate that intention? 1
    1. The whole deed, and every word and phrase of it, indicates an intention to convey a present interest. The words “may be entitled” are in their meaning as effectual' to convey a present as a future interest, and in the connection in which they stand, they can mean only an immediate interest. The word “may” is in all cases as applicable to present as to future time. The deed on its face recognizes no future act to be performed by either of the parties, nor any future event to occur upon which a conveyance should be made. On the contrary the company wanted the land for immediate use, and they used it immediately. The engine house was built on it in 1842. The deed was given in December, 1841. Then the nature of the transaction shows clearly that any. future conveyance coul(¡l not have been within the meaning of the parties. The grantees were laying a railroad track and making a depot upon the land of the grantor, in a forest of miles in extent, and thereby increasing the value of his land more than five hundred per cent. He therefore gave them so much land as was judged necessary for their purposes, but, as is usual in such cases, provided against the use of it for other business.
    2. Are the words of the deed sufficient to effectuate the plain and obvious intention of the parties, that the grantees should take a present estate in the premises secondly described? All the formal parts of this conveyance are full and ample. The granting part of the deed is as.full as any one can require. We insist, in the first place, that it was the intention of the parties, and that it is the true meaning of the deed that the granting part should apply as fully to the premises secondly described, as to the premises first described. The words “also,” “in addition to” “which said sixty square rods,” “ the Long Island Railroad Company may be further entitled to an extra additional width of seventy feet,” &c., were used by the parties with the intention not to exclude the application of the granting part of the deed to this seventy feet, but really to say that the granting part did apply to' such seventy feet upon the terms which the deed then went on to explain, viz., that the land should be used by the grantees for a side track, depot, buildings, &c., but the buildings to be used for the purpose of the road only. If there could be any doubt as to this construction, the further description of the premises and the estate granted contained in the deed all the way to the habendum, must remove such doubt. Certainly all this part of the description applies as fully to the premises secondly as to the premises first described in the deed. 1 Also the habendum and the covenant of warranty clearly indicate that such must have been the mean
      ing of the parties. The words “also,” “in addition to,” “be further entitled,” “an extra additional width,” all indicate that the parties supposed that they were conveying the second. premises by the. same means by which the first was conveyed, and the words “be further entitled” show that the grantees were to acquire title to the second premises by force of the words by which they acquired title to the first. Assuming that the words used in the granting part of the deed do not apply to the premises secondly described, then the deed in respect to the second premises would read thus: "“In consideration of one dollar, duly paid,” etc., “the Long Island Railroad Company may be further entitled to an extra additional width of seventy feet,” etc. The above words are sufficient to transfer the title by way of bargain and sale! The words “bargain and sell ” are the appropriate words, but any words that are sufficient to raise a use will convey an estate by way of bargaiti and sale. The words “may be entitled to”‘are as effectual to convey a use as the words “bargain and sell.” An agreement by A. that, in consideration ot one dollar, B. may be entitled-, will pass from A. to B. the use of any real estate, or any article of personal property. By the common law it did not pass the land itself, because that could only be done by livery of seisin, but it gave B. a right to the use of the laüd, and then the statute transferred the possession, The words remise, release, and forevei quit claim, and the words “.release and assign,” were held by our supreme court sufficient to raise a use. In no other way could a quit-claim deed operate to transfer the title. The court says: “There are no precise technical words required to raise a use. If the words amount to a present contract of sale or bargain, a trust is instantly raised on which the statute operates.” (Jackson v. Fish, 10 Johnson’s Reports, 456; 4 Cruise’s Digest, 123.) Any words between two parties showing that for a consideration one shall give and the other shall take, make a sale or conveyanee. Courts are bound to effectuate the intention of the parties where that is clear, if it can be done without a violation of the law. This arises front the nature of things that all language must be conventional, and that the language of the party speaking must tie construed according to the understanding of the party addressed, if it was known to the speaker.- This is the true basis of honest intercourse between men, and it is the foundation of the rule that a deed shall be construed most strongly against the grantor. And it fully justifies the rule that courts will give a different, unusual, and even contrary meaning to words, to effectuate the intention of the parties. The learned judge in the court below has so clearly and fully illustrated and applied the law upon this point that we deem it unnecessary to add a word, and certainly there is nothing in the criticism of the opposite counsel that calls for an answer. He clearly misapprehends and misapplies the case from 2 Wendell, 433, which is directly to the point as cited by the judge. But with much deference to the learned judge, we think the word “may” has abundant force in its position in the deed, to convey the property, and that for such purpose it is almost, if not quite, as potential as the word “shall.” It declares the assent and intention of the grantors that the grantees shall take the title to the land, that is, all that is called for from the ■grantor. The grantees are the beneficial recipients, and no stronger word can be necessary for them who are volunteers in- taking the title. If the words were intended to restrain or coerce the will of the grantees, the Word “shall” would be more appropriate, and to effectuate the intention the court could properly give to “ may ” the meaning of the word “ shall.”
    HI. The occupation of the premises by the plaintiffs confirms our construction of the deed. They built an engine house in 1842, very shortly after the deed was given, used it there a year, built another .in 1844 which stood ten years, and they have very nearly during the whole time been in actual possession of some part of the premises by their tracks and buildings, besides using it as a deposit for cordwood, the premises not being used, being wild and uncultivated. In 1854 a storehouse was built, and in 1856 the defendants built their store without the knowledge of the plaintiffs. The wood was cut off by the grantor in the deed. It was the general custom .for the owner to take wood where he gave land to the railroad. The plaintiffs do not seek to take from the defendants their store, bul will suffer them to move it off, or permit it to remain foi the present for a trifling rent.
   Selden, J.

The facts proved on the trial, aside from the deeds and the possession by the defendants of a pari of the premises in dispute, with a claim of ownership to the whole, are wholly immaterial The case depends upon the construction of the deed from Edward Dódd and wif*. to the plaintiffs; and such construction must be determines from the words of the deed alone; the- extraneous circum stances which were given in evidence not tending in tb* least to aid in that construction. I entertain no doubt of the sufficiency of the deed to pass the title to both the' parcels described. In deeds of bargain and sale, designed to transfer the title to lands by the aid of the statute oí: uses, no particular form of words is necessary; any wordy which show the intention are sufficient. “Any words that will raise a use will amount to a bargain and sale.” (4 Kent’s Com. 491-496; Jackson v. Alexander, 3 John. 485, 495; Jackson v. Fish, 10 id. 456.) The words “ make over and confirm” (18 John. 60), “ release and assign” (id. 79), “limit and appoint” (Shove v. Pincke, 5 T. R. 124,) have been held sufficient. In the last mentioned case, Bullek J. says: “ The thing conveyed is a reversion; that is, the subject of a grant; and the-words ‘ limit and appoint’ operate as a grant.” It is hardly necessary to say that any words which would amount to a grant at common law, would be. sufficient in a bargain and sale under the statute of uses; and if that were not so, would be good as. a conveyance under our revised statutes, which have made every interest in lands the subject of grant. (1 E. S. 738, .739; 4 Kent’s Com. 491.) In Fisher v. Fields (10 John. 495), in the court of errors, the following instrument, sealed, and a pecuniary consideration being shown, was held sufficient to create a trust, viz: “This is to certify that the bearer hereof, J. B., is entitled to all the lands that I, B. G. am entitled to, either from the state or continent, for my services as a soldier.” In that case the bargainor had only an equitable interest, and could not therefore transfer a title, but the instrument was held sufficient to charge him (when he afterwards obtained the legal title)-, as a trustee of the lands for J. B. A trust now is what a use was before the statute óf uses, and words which are now sufficient to create a trust would have been sufficient to create á use before the statute, and-by aid of the statute are now sufficient to transfer the legal estate. The operative words in the case of Fisher v. Fields, were almost identical with those used in the deed under consideration. In the one case they are “is entitled to,” and in the other “Also, may be further entitled to.” The same words, however, in one ease might be held sufficient to operate as a conveyance, when, in another, they would be altogether insufficient on account of their relation to other parts of the instrument. The intention alone determines the interpretation of the deed, and to ascertain that intention the whole instrument is to be examined. Looking, for this purpose, at the whole of this deed, we find that by it the grantors declare that, in consideration of one dollar, they have bargained and sold to the railroad company a piece of their land four rods wide and two hundred and fifty feet long, comprising an area of sixty square rods, “ for the uses and purposes of'the road procer.” Also, that, in addition to the sixty square rods, the company may be further entitled to an extra width of seventy feet on the south of the road, “ for the uses and purposes of a side track, engine house, depot,” &c.-, “ provided such buildings may be used for purposes of said road only; and which additional land contains an area of sixty-four rods.” To those granting and descriptive words, there is added the habendum clause, “.to have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said parties of the second part, their successors and assigns, forever,” and the only one of the grantors capable of entering into a covenant, adds that the quiet and peaceable possession of the said premises, by the party of the second part, he “will warrant and forever defend.” The entire deed being considered, the intention to convey the last described piece as effectually as the other, appears to me very plain, notwithstanding the difference in the language used in reference to the different pieces. I regard the words directly applied to the piece last described, viz.that the company “may be entitled to” seventy feet in width for a side track, as sufficiently expressing an .intention to give a present interest to the grantee, to operate as a conveyance) the consideration otherwise appearing. Those words were designed to have some effect, and if they do not operate as a conveyance, no effect whatever can be given to them. The effect of the deed, as applied to the piece of land last described, does not, however, depend upon the language which I have last quoted. By its,true interpretation the technical words of conveyance, “grant, bargain, sell,” &c., apply as well to the last described piece of land as to the first. No one would question that the words, “for and in consideration of one dollar,” apply to both pieces, and just as clearly the granting words apply to both. The substance of the deed—its plain meaning— is this: In consideration of one dollar, we have granted, bargained and sold to the railroad company sixty-four square rods of land for their road proper; also seventy rods in addition, which they may be entitled to for a side •track, éngine house, &c. This interpretation of the deed is strongly confirmed by the habendum clause; and although that clause can never be resorted to for the purpose of enlarging the estate granted, there is no reason why it may not be considered in determining the question whether the prior words of the deed were or were not intended to operate as a grant.

It is not necessary, in order to maintain the plaintiffs’ title, to resort to the covenants of the deed; but if there were in the instrument no words which could be held to operate as a direct conveyance, I entertain no doubt that the covenant for quiet enjoyment, entered, into by the ancestor of the defendants’ grantor, would be equally as effectivé as a direct conveyance from such ancestor would have been to bar the claim set up by the defendant. Such ancestor would not, himself, have been allowed to assert a claim to the property in opposition to his covenant, nor can any one claiming under him be allowed to do so.

In the case of Goodtitle v. Bailey (Cowper, 597), which was an action of ejectment, the lessor of the plaintiff had executed a release of the premises claimed, with a covenant for quiet enjoyment, and further assurance. There was a doubt as to the sufficiency of the words of the release to operate as a conveyance. Lord Mansfield, after stating the' circumstances which created the doubt, says: “One> thing, however, is decisive. This is a fictitious action to recover the possession. In such an action, if a man has made a solemn deed covenanting that another shall enjoy the premises, and likewise for further assurance, it shall never lie in his mouth to dispute the title of the party to whom he has so undertaken; no more than it shall be permitted to a mortgagor to dispute the title of his mortgagee. No man shall be allowed to dispute his own solemn deed.” The court concurred in this opinion, and on that ground sustained the non-suit of the plaintiff, which had been granted at the trial.

For these reasons I think the deed was effectual as a conveyance of the title to the premises in controversy, for the purposes expressed therein; but if a doubt exists in regard" to this, the covenant for quiet enjoyment of the property by the plaintiffs estops the covenantor, and those claiming under him, from interfering with such enjoyment. (Eawle on Cov. 322.)

The judgment of the supreme court should be affirmed, and final judgment in favor of the plaintiffs entered in accordance with the stipulation of the defendants.

Hogeboom, J.

The sole question presented in this case is whether the deed from Edward Dodd, and wife, to the plaintiffs, of the 28th of December, 1841, does, by its terms, convey such an interest in the premises secondly therein described as will justify an action of ejectment. I am of opinion that it does, for the following reasons:

1. It is, equally with the first parcel, contained in the granting part of the deed, and the habendum clause is “to have and to hold all and singular the above mentioned and described premises (which embrace both parcels), with the appurtenances, unto the said parties of the second part, their heirs and assigns, forever.” And it is also covered by the covenant for quiet enjoyment.

2. The consideration applies • to the whole deed, and there is nothing to show that it was intended as a mere contract for a deed,’ as it makes no provision for a future deed in any contingency, or at any future time. It must have been intended for one purpose or the other—either as a conveyance of a present interest in the land or as a contract to convey a future interest.

3. The difference of phraseology in regard to the first and second parcels is not conclusive, because the question must after all be determined from the whole scope and tenor of the instrument. Moreover there is, in my opin ion, a reason for the difference of expression in this, that the conveyance of the first- parcel was designed to be direct, immediate and absolute, while that of the second was designed to depend upon its being wanted or used for the purposes named, to wit: for a side track, engine house, depot, or other necessary buildings and appendages to the road. This was consistent with the retention of an interest in the grantors in the premises so conveyed until the grantees should require it for the uses specified; and this was, I think, the intention of the parties, as it was so subsequently used and appropriated by the latter, the abso lute right vested from that period.

4. The words in the deed, “may be further entitled,” should, therefore, be construed as is admissible in the inter pretation of instruments of this description, as synonymous with “shall be further entitled,” or “are further entitled,” in order to effectuate the manifest intention of the parties. In the same sentence similar words are twice obviously used in a similar sense. In declaring the purposes to which this second parcel, and the buildings to be erected thereon, shall be applied, the language is “for the use and purposes of a side track, engine house, depot, or such buildings and appendages to said road as may be (that is, are or shall be) considered necessary, provided such buildings may be (that is, are or shall be) used for purposes of said road only.”

The words “is entitled,” or “are entitled,” are frequently used in legal documents to import the conveyance or transfer of a present interest, and not a mere right to the conveyance or transfer of a future interest. Stock scrips or certificates are a familiar illustration of this proposition.

These considerations are conclusive to my mind as to the intention of the parties and the effect of the instrument. The order of the supreme court should he affirmed, and judgment absolute should be rendered against the defendants in accordance with their stipulation in such event.

All the judges concurring, judgment affirmed.


author: Ingraham, J. Selden, J.

text:
    Mary Creed and George Creed v. George Hartmann.
    For a personal injury occasioned by the negligence of several persons, there is a separate liability as well as a joint one, and the person injured may, at his election, sue both or either of the wrong-doers.
    There is no rule which makes all the tort-feasors necessary parties to an action of that character.
    £n an action for an injury to the person, caused by the negligence of the defendant, the court is warranted in dismissing the complaint because of the plaintiff's own negligence, only where such negligence is clearly proved. Persons contracting with the 5w5er"ofTots to buildnTblock of houses thereon, who make a sub-contract with another to make all the necessary excavations, by digging the ground, blasting the rock, &c.—the latter stipulating to guard against accidents by proper precautions, and to make good all damages—are liable for an injury sustained by an individual who falls into an excavation in the side-walk, through the negligence of the sub-contractor or his servants, in not having the same properly protected.
    The rule laid down in Congreve v. Smith (18 N. Y. Rep. 79) applies in such a case.
    If there is no evidence of any express license to the contractor to make the excavation, or of any circumstances from which a license may be inferred, the work itself is wrongful, and the right of action does not depend upon any negligence on the part of the contractor. Per Ssidbn, J.
    The defendant was one of a firm who had contracted to build a block of houses on the Third avenue in the city of Hew York. The contractors made a sub-contract with one Brady, to make all the necessary excavations,’ by digging the ground, blasting the rocks, &c. He was to guard against accidents by proper precautions, and all damages were to be made good .by him. After the side-walk was dug out the same was covered with boards, but by whom does not appear. The defendant’s foreman was in the habit of putting up guards at evening. Mary Creed, one of the .plaintiffs, in passing over the platform, broke through and fell into the excavation. She was injured, and her thigh was fractured. The counsel for the defendant asked the court to charge that where a party had a license to construct a sewer, and contracted it to a third party, he was not liable for an accident occurring through the negligence of such party. This was refused; and the court charged “if the excavation was caused by the party sued he was responsible for not having the excavation properly protected, although he might not be liable had the accident occurred while the blasting was going on.” To this the defendant excepted. The - defendant also moved fór a non-süit, upon the ground that Brady was the party guilty of negligence, if any; that the plaintiff was guilty of negligence, and that the partner of the defendant was a necessary party. This motion was denied. The jury found a verdict for the plaintiff, and the judgment thereon wai affirmed by the general term.

      Wm. R. Stafford, for the appellant.

      A. L. Pinney, for the respondents.
   Ingraham, J.

There was not sufficient evidence of neg ligence on the part of the plaintiff to warrant the court to take the case from the jury. It did not appear that she had any reason to suppose the boards placed for people to walk over were not sufficient. On the contrary, she saw others passing, and, as if was usual to make such bridges to pass over excavations in the side-walks, she had no reason to suppose there was any difference in the present case. It is only where the negligence is clearly proved, that the court is warranted in dismissing the complaint. The defendant was one of a firm who had the contract for erecting the buildings. Both of the parties were alike guilty of negligence, and both might have been sued for such negligence, but each of them was equally liable, if any liability existed; and there is no rule which makes both parties necessary parties to an action of this character. There was a separate liability as well as a joint one, and the plaintiff might, at his election, sue both or either of them. (14 John. 426.)

The principal question in the case is, whether the defendant was liable for the negligence of Brady, who had the contract to do the work and who made the excavations.

The cases of Blake v. Ferris (5 N. Y. 48) and Pack v. The Mayor, &c. (8 N. Y. 222) decided that the principal was not liable for accidents to third persons, occasioned by negligence'bf the workmen, when the work had been contracted for to a third person to do the work at a stipulated price. The contractor in such case is not the agent of the employers, and they are not responsible for the contractor’s négligence. The principle upon which these cases rest is, that the employer has no control over the men and ser-' vants employed by the contractor, and is not responsible for their negligence.

In Storrs v. The City of Utica (17 N. Y. 107), the case of Blake v. Ferris was reviewed, and Comstock, J., expressed his doubts about the propriety of that decision, and draws a distinction between one who directs a ditch fco be dug in a highway, although he does the work by a contractor, and one who directs rocks to be blasted in a highway, and does that work under contract. I Confess tehat I have difficulty in understanding how the employer iff the one case is liable and not in the other. The digging of a ditch and the blasting of rocks, in a public highway, are both acts equally dangerous to the traveler, and equally call for care against accidents. The one renders the street unsafe for night travel, and the other during the day. That case seems (o have been placed upon the decision of this court in the City of Buffalo v. Holloway (3 Seld. 493), where the court held the contractor was not liable to the city for negligence in leaving an opening in the street, because the contract did not require Mm to take precautionary measures against it. In Storrs v. The City of Utica, Comstock, J., says: “If the work .is done by contract, then I admit that the contractor must respond to third parties, if his servants or laborers are negligent in the immediate execution of the work.” And again: “The employer may insert in that contract a clause that the contractor shall provide proper lights and guards, but I do not see how that can change the principle. But this (he says) has no tendency, in my judgment, to shield the ultimate superior or author of the work from responsibility.”

In Congreve v. Smith (18 N. Y. 79), the defendant was held responsible for work done in a public street, although it was shown that the work was done under a contract calling for the best materials, and that the work should be done in a good and workmanlike manner. Strong, J.. says: A person who makes or continues a covered exea vation in a public street or highway for a private purpose, should be responsible for all injuries to individuals resulting from the street or highway being less safe for use. * *- * * It is no answer to the action that the covering was done under the contractors who contracted to do the work properly, and that the defendants are not responsible for the negligence of the contractors’ servants. It was no part of the contract to cover the opening, and the defendant may have reserved to do that work himself. Neither does it appear, as in Blake v. Ferris, that the defendant had obtained permission toi do this work in the public street. This would distinguish it from the case of Blake v. Ferris, where a permission had been given to build the sewer in the street, by the corporation.

The judgment should be affirmed.

Selden, J.

The verdict of the jury, under the appropriate charge of the. court on the subject, is an answer to the position of the defendant’s counsel that the plaintiff was guilty of' negligence. If the question were an open one, however, it would be very difficult to find in the evi, dence anything to justify a different verdict,

There is no well-grounded reason for questioning the defendant's liability in this case, under the rule laid down in the case of Congreve v. Smith (18 N. Y. 79), that “persons who, without special authority, make or continue a covered excavation in a public street or highway, for a private purpose, should be responsible for all injuries to individuals resulting from the street or highway being thereby less safe for its appropriate use, there being no negligence by the parties injured.” It cannot be material whether the excavation was a covered or an open one, where it was made without authority, and the party injured was free from fault.

The fact chiefly relied upon in the defendant’s behalf, that the injury resulted immediately from the negligence of a contractor, who was doing the work upon his own responsibility, and was bound by his contract with the defendant to guard, by proper precautions, against accidents, does not constitute a defense to the action, The excavation was made on the defendant’s account an.d at his request, in a public street, for a private purpose of the defendant, in which the public, had no interest, and, so far as the case discloses, without the consent of the corporate authorities. The act of making the excavation was wrongful, without reference to the manner in which it was made or secured. The defendant was, therefore, liable for the injury which the excavation produced to third persons, without fault on their part, whether the workmen were guilty of negligence or not. (Congreve v. Smith, supra; Dygert v. Schenck, 23 Wend. 446; Coupland v. Hardingham, 3 Campb. 398.) The basis of the defendant’s liability is his own wrongful act in procuring the excavation to be made without authority, and not the negligence of the contractor or his workmen in performing or guarding the work. In this respect there is a plain distinction between the present case and those of Blake v. Ferris (1 Seld. 48); Pack v. The Mayor, &c. (4 id. 222); and Kelly v. The Mayor, &c. (1 Kern. 432). In each of those cases the work was authorized by the corporate authorities, and was therefore rightful, if carefully and skilfully executed; and it was held that the defendants, not having any control' over the manner in which it was done by the contractors, to whom its performance had been committed, was not responsible for their negligence or want of skill. If the work had been unauthorized, and was, therefore, in itself wrongful without referefice to the manner in which it was performed, the defendants would undoubtedly have been held liable.

I do not think we are called upon to decide whether the defendant would have been liable for the negligence of the contractor in guarding the work, if it had been done by license from the corporate authorities, upon the ground of the distinction taken in the case of Storrs v. The City of Utica (17 N. Y. 104), between negligence in the actual making of the excavation and negligence in providing safeguards against injury from its existence. In that case it was held that a municipal corporation was liable for the injury produced by a neglect to place proper lights and guards at night, about an excavation in a street made in the construction of a public sewer, although the work was done by a contractor upon his own responsibility. There was no provision in the contract in that case, requiring the contractor to guard against accidents, but Judge Comstock expresses the, opinion (the correctness of which cannot well be doubted) that such provision would not have relieved the corporation from liability; atid it may safely be assumed that an individual making an excavation in a street for his own benefit, with the consent of a municipal corporation, could not" claim an immunity which the corporation itself would not possess if it were doing the same work for the benefit of the public. It was upon this ground that the judgment was sustained at the general term in the superior court; and if it were necessary to decide the question, I should be prepared to concur in that view. There is, however, no evidence in the case of any express license to the defendant to make the excavation, and although a license might doubtless be inferred from circumstances (City of Chicago v. Robbins, 2 Black, 418), no proof was offered of any circumstances from which such inference could be drawn. The work itself was therefore wrongful, and the right of action does not depend upon any negligence on the part of the contractor.

The ground upon which I have placed the liability of the defendant, furnishes an answer to the objection, that his partner (Eberspacher) should also have been made a defendant. The making of the excavation without license, was a tort on the- part of both the defendant and Eberspacher, and the liability for torts committed by more than one person is always several as well as joint. (Low v. Mumford, 14 John. 426.) I doubt whether the rule would be different if the liability of the defendant should be held to depend upon the negligence of the common' agent of him and his partner. (Champion v. Bostwick, 18 Wend. 185-6.) It is, however, a sufficient answer to the objection under consideration, that it was not taken in the answer. (Code of Procedure, §§ 144, 147, 148; 16 N. Y. 266.) The facts on which the objection is based are stated in the answer for the purpose of exonerating the defendant by throwing the sole responsibility upon Brady, the contractor; but there was no suggestion of any defect of parcíes. This was necessary, if the objection was sound in brinciple, to make it available, and possibly the further Allegation that Eberspacher was still living. (Cahill v. Vaughn, 1 Saund. 291; 3 Chitty’s Plead., Springfield ed., 1844, 900—note f.) The judgment of the superior court should be affirmed.

All the judges concurring, judgment affirmed.