author: Sutherland, J.

text:
    Rouse v. Whited et al.

    The plaintiff, to show that his property had been applied to the defendant’s use, in payment of a note made by the defendant and indorsed by the plaintiff, proved that the defendant pointed out the property to" the sheriff and declared that it was the plaintiff’s: Held, that the defendant was entitled to prove his statement in the same conversation that the note was the plaintiff’s debt and he was to pay it.
    The rule of evidence, in respect to parts of the same conversation, laid down in- The Quern’s case (2 Brod. & Bing., 297), disapproved, and that in Prince v. Samo (7 Ad. & Ell., 627), approved: Per Sutherland, J".
    Appeal from the Supreme Court. This action was brought in aJustice’s Court to recover moneys alleged, to have been paid by the plaintiff for the defendants. The plaintiff gave in evidence an exemplified copy of a judgment roll in the Supreme Court in favor of one -Kelly against the plaintiff and the defendants and others for $117.89, rendered upon a note made by the defendants and indorsed by the plaintiff, and by others, and from which it appeared that the judgment roll was filed in the county of Albany, and that the judgment was rendered on the 21st day of March, 1856. The plaintiff then gave in evidence an execution directed to the sheriff of Sara ■ toga county, and signed “G. W. Whited, assignee of judgment,” reciting a judgment in the Supreme Court for the same amount, and rendered on the same day, between the same parties, but which recital concluded as follows: “ As appears by the judgment roll filed in the office of the clerk of the county of Saratoga.”
    The plaintiff proved by the sheriff of Saratoga county that ' he received the executión from G. W." Whited, and under it levied on certain pieces of rye, corn, potatoes and oats, on a lot of land occupied by one Gideon More, and advertised and sold the property levied on, except the rye, for $27, which was all he collected on the execution.
    The sheriff further testified that Oliver Whited, one of the defendants, told him of the property and said it was the plaintiff’s, and that he then levied on it. On his cross-examination the sheriff was asked if Oliver Whited did not tell him in the same conversation that the execution belonged to the plaintiff to pay — that it was his debt. This question was objected to as calling for the declarations of the party in his own favor, and as being no part .of the conversation called out by the plaintiff, and not necessary to explain the. same. The objection was sustained and the question excluded.
    The plaintiff also proved by one Stephen Ai Seaman,, that shortly after the levy he heard both of the defendants say that the property levied on belonged to the plaintiff. On his cross-examination, Seaman was asked if the defendants did not state at the same time and in the same conversation, that the note embraced in the judgment was for the plaintiff to pay 'and was his debt. This inquiry was also objected to and excluded.
    There was no other or further evidence that the property levied and sold was the plaintiffs, or to support his claim for moneys paid for the defendants. It was admitted by the defendants that G-. W. Whited had an assignment of the judgment when the execution was issued. There was no proof that there was not a judgment roll. filed in Saratoga county, upon which the execution might have been issued.
    At the close of the evidence, the defendants moved to strike out the execution given in evidence on the ground that it appeared by the execution itself that it had been issued on a . judgment, the roll whereof was filed in Saratoga county, and no evidence had been given of any judgment in Saratoga county. 2. That the money collected by the sheriff was collected on this execution, and for aught that appeared, there was a judgment roll filed and, judgment docketed in Saratoga county upon which said execution issued; and that until such judgment was proved, it did not appear upon what debt the money collected was or was not to be applied. 8. That the execution was irrelevant evidence. The motion was denied.
    The defendants also moved for a nonsuit on the ground that there was not sufficient evidence' to sustain a judgment, and also upon substantially the same grounds that they had moved to strike out the execution given in evidence. This motion-was also denied, and the justice gave judgment for the plaintiff for $27 damages and $2.24 costs. From this judgment the defendants appealed to the County Court, which court reversed the judgment of the justice and gave judgment against the plaintiff for $22.93 costs. The plaintiff thereupon appealed to the Supreme Court, which court reversed the judgment' of the County Court and affirmed that of the justice. From the judgment of the Supreme Court the defendants appealed to this court, under an order of the Supreme Court at general term, allowing them to do so.

      A. Pond, for the appellants.
    J. A. Shoudy, for the respondents.
   Sutherland, J.

The only important question presented by this appeal is: Had the defendants a right to prove on the cross-examination that when Oliver Whited told the sheriff and both defendants told Seaman that the property levied on was the plaintiff’s, they at the same time and as part of the same conversation said that the debt (the execution debt) was the plaintiff’s debt or belonged to him to pay? It appears that the County Court reversed the judgment of the justice solely on the ground that the defendants had a right to prove such further statements, and that the Supreme Court reversed the judgment of the County Court and affirmed that of the justice solely on the ground that they had not a right to prove such further statements.

It is plain that there must be some limitation of the right of the party whose statement or admission, forming a part of a conversation, has been given in evidence against him to prove further or other statements or declarations made by him at the same time or as part of the same conversation, otherwise the court and the jury might be compelled to listen to a long story about matters not at all connected with any matter or thing in controversy between the parties. Ho one will say that a party whose statement has been given in evidence against him by his opponent, has a right to prove all that he said at the same time or in the same conversation, solely because such further or other statements were made at the same time or in the same conversation.

The question then is: What is the rule of the limitation of this right •? In The Queen's Case (2 Brod. & Bing. 297, 298), Abbott, Ch. J., in delivering the opinion of the court on certain questions proposed by the Lords to the judges,, said: “ The conversations of a party to the suit are, in themselves, evidence against him in the suit, and if a counsel chooses to ask a witness as to anything which may have been said by an adverse party, the counsel for that party has a right to lay before the court the whole which was said by his client in the same conversation, and not only so much as may explain or qualify the matter introduced by the previous examination, but even matter not properly connected with the part introduced upon the previous examination, provided only that it relate to the subject-matter of the suit, because it would not be just to take part of a conversation as evidence against a party without giving to the party at the saíne time the benefit of the entire residue of what he said on this occasion.”

The rule, as thus stated, was certainly very broad. The only limitation upon the right of the party to give the whole conversation, in evidence by the rule, as thus stated, would» seem to be, that the other or further part or parts of the conversation offered in evidence, to be admissible, must relate to the subject matter of the action. By the rule, as thus stated, if the defendant, is sued as the maker of two several promissory notes, to one of which his defence is that he never made it, and to -the other that he had paid it, and the plaintiff proves on the trial, that at a certain time, the defendant said or admitted that the note which he had denied making was his note, or that he had made and delivered it, the defendant has a right to prove, that at the same time, or as part of the same conversation, he also said that he had paid the other note. So, also, by the rule as thus stated, if the plaintiff has but one cause of action, and cannot recover without establishing affirmatively two distinct issuable facts, if for the purpose of establishing one of them he gives evidence of a statement or admission of the defendant relative to it, the defendant has a right to give evidence of what he said at the same time or in the " same conversation, relative to the other. As for instance, take the case put by Judge Cowen in Garey v. Nicholson (24 Wend., 351): The defendant is sued as indorser—he denies that he indorsed the note; and he also denies that he received due notice of its dishonor. The plaintiff proves his admission that he received due notice of dishonor: by the rule as stated by Abbott, Ch. J., in 2 Brod. and Bing., the defendant has a right to show, that when he made the admission, he also said that the indorsement was a forgery,

The rule, as stated by Abbott, Ch. J., was adopted by Mr. Starkie and laid down in his work on Evidence. (1 Stark. Ev., 180, 2d ed.) I think Mr. Grreenleaf intended to lay down" substantially the same rule. (1 Greenl. Ev., §§201, 218. In § 218, The Queen's Case [2 Brod. & Bing.], is cited.)

In Prince v. Samo (7 Adol. & Ellis, 627), Lord Denman, Ch. J., who delivered the opinion of the" court, referred to the broad language of the rule, as laid down in Starkie’s Evidence, on the authority of Abbott, Ch. J., in The Queen's Case, and denied that he had the countenance of authority for #the extent to which it went. He denied that any rule letting in the whole conversation of a party merely because it relates to the subject-matter of the action had the countenance of authority. He stated the rule to be, that where part of a conversation had been given in evidence, any other or further part of the conversation might be given in evidence in reply, which would in anyway explain ox qualify the part first given in evidence.

In the 10th English edition of Phillips’ Evidence, after a review of the authorities, and a particular reference to the decision in Prince v. Samo, the rule is laid down as.follows:

“Where a statement, forming part of a conversation, is given in evidence, whatever was said by the same person in the same conversation,, that would in any way qualify or explain that statement, is also admissible, but detached and independent statements, in no way connected with the statement given in evidence, are not admissible, and there is no difference in this respect between statements made in conversation by a party to the suit and those made by a third party.” (1 Phil. Ev., 4th Am. ed., from 10th Eng. ed., 416.)

This is substantially the rule stated in Prince v. Samo. This rule, so far as it applies to the conversation or statements of a party to the suit, was approved by the Supreme Court of this State in Garey v. Nicholson (24 Wend., 350), Justice Cowen delivering the opinion. That case called for no expression of opinion as to that part of the rule applying to the conversation or statements of a third party. In Forrest v. Forrest (6 Duer, 102), the rule, as stated in Prince v. Samo, and approved in Garey v. Nicholson, was somewhat criticised, and held not to apply to documentary evidence. The rule was also approved in Dorlon v. Douglass (6 Barb., 451), although there may be some doubt whether it was properly applied in this case. The rule was also recognized in Sturge v. Buchanan (10 Adol. & Ellis, 598).

All the cases in this State which I have looked at, where it has been held, that the whole admission or statement of the party must be taken together, are within the rule, as stated in Prince v. Samo. (Carver v. Tracy, 3 John, 427; Wailing v. Toll, 9 id., 141; Credit v. Brown, 10 id., 365 ; Smith v. Jones, 15 id., 229; Mumford v. Whitney, 15 Wend., 380; Kelsey v. Bush, 2 Hill, 440; Vibbard v. Staats, 3 id., 144). These cases merely decide, that when the plaintiff avails himself of a statement or admission of the defendant to charge him, the defend - ant may avail himself of any other statement made by him at the same time, tending to destroy or modify the use which the plaintiff might otherwise make of the admission or statement first called out by him. And certainly, to destroy or modify the effect or the use which can be made of an admission or statement, is to qualify it

In Forrest v. Forrest (6 Duer, 126, 127), the Superior Court say: “ The cases in this State falling under our observation, and involving the question whether, when part of one party’s conversation has been proved by the other, the former may have the whole of it proved, are cases in which the additional conversation either justified the act, or showed payment, or a release of the demand, or a counterclaim growing out of the original transaction forming the subject of the action, which the parts of the conversation first proved tended to establish.” Assuming this to be so, the additional conversation was admissible by the rule stated in Prince v. Samo. But the Superior Court add: “ It is difficult to perceive why proof by a party’s admission that he had bought specific property, may be met by proof that he stated at the same time that he paid for it, and yet, that where a plaintiff, claiming to have two distinct demands against a defendant, proves a declaration of the defendant admitting one of them, the defendant may not be allowed to prove that he, in the same conversation, and in the same breath, said he had paid the other.”

How I cannot perceive the least reason why the defendant in the case put should be allowed to prove that he had paid the other note. The action is against the defendant, as the maker of two notes; to the one the defence is, that it is a forgery, and to the other, payment. Can any reason be given why, if the plaintiff proves that the defendant said he signed the note he alleges to have been forged, the defendant should be permitted to prove that he said, at the same time, that the other note was paid ? I do not see why he would not have as much right to prove that he" said that a note not included in the action was paid. The plaintiff has a right to avail himself of the admission of the defendant, that he signed the one note; why should he not be permitted to do so, without giving the defendant a right to prove his volunteer statement as to the other note? The statement that the other note was paid has no connection with and in no way tends to explain the other statement, or to qualify the use or effect of it against him in the action. So, also, where there is but one'cause of action, but the plaintiff has to prove affirmatively two distinct issuable facts, as in action against an indorser—the indorsement and due notice óf dishonor. If the plaintiff avails himself of the defendant’s admission to prove due notice of dishonor, why should the defendant be permitted to show that he, at the same time, said he never indorsed the note ? The admission as to the notice does not- tend to prove the indorsement. All statements made in a conversation, in relation to the same subject or matter, are to be supposed to have been intended to explain or qualify each other, 'and therefore the plainest principles of equity require, that if one of the statements is to be used against the party, all the other statements tending to explain it or to qualify this use, should be shown and considered in connection with it.

The rule is stated in Prince v. Samo, with reference to the use which the party calling out an admission or statement of his adversary can make of it in the action, and irrespective of the number of causes of action, or of issues, if there is but one cause of action.

I think the rule stated in Prince v. Samo, at least so far as it applies to the conversation of a party to the suit, is the reasonable and correct rule, and is the rule which has generally been recognized in this State.

The question then in this case, is, whether the justice, under the rule as limited in Prince v. Samo, should have permitted the defendants to show, that when the defendant Oliver Whited told the Sheriff, and both the defendants told Seaman, that the* property levied on was the plaintiff’s, they, at the same time, made the further statement, that the debt was the plaintiff’s, or was his debt to pay? Most clearly he should. The plaintiff relied on the statements of the defendants proved by him, to show that the property levied on, was his property, and thus to show, that his property to the amount of $27, had gone to pay the defendant’s debt. If the property was his, but it had been levied on and sold to pay his own debt, there was an end of his case. The statements, then, of the defendants, that the debt was the plaintiff’s, or belonged to him to pay, if proved, would have completely destroyed the force and effect, and intended use of the admissions or statements first given in evidence by the plaintiff, and. ought to have prevented a recovery. It is difficult to suppose a case more clearly within the limitation of the rule as laid down in Prince v. Samo. Certainly one statement which completely destroys the force and effect and intended use of another statement, qualifies the latter statement.

Although the plaintiff was the indorser and the defendants the makers of the note on which the judgment was obtained, it may very well have been, that the note wa^ji made for the accommodation of the plaintiff, and that the debt was his debt to pay. If this was the fact, the defendants had a right to show it. (Barry v. Ransom, 2 Kern., 446; Griffiths v. Reed, 21 Wend., 502.)

The other questions in the case were, I think, rightly decided by the Supreme Court.

The judgment of the Supreme Court should be reversed, and that of the County Court affirmed, with costs.

DAVIES, WRIGHT, GOULD, ALLEN and SMITH, Js., concurring,

Ordered accordingly.


source: Caselaw Access Project

author: Gould, J.

license: Public Domain

text:
    Merchants' Bank v. Elderkin.
    It is a sufficient demand of payment of a note that the same was left for collection at the bank where it was payable, on the last day of grace, and the maker having no funds, it was returned to the holder before the expiration of the last business hour.
    Appeal from the Supreme Court. Action against the indorser of a promissory note, who defended on the ground that there had been no sufficient presentment or demand of payment. The facts are stated sufficiently in the following opinion. Judgment for the plaintiff having been ordered by a referee and affirmed at general term in the fourth district, the defendant appealed to this court.

      John K. Porter, for the appellant.

      Taylor & Hobbs, for the respondent.
   Gould, J.

The plaintiff sent the note to its correspondent . in Troy, the Commercial Bank, to be collected. The Commercial Bank, before the commencement of banking hours, on the last day of grace, sent the note to the Troy City Bank, at which the note was, by its tenor, payable. The note remained there until between one and two o’clock of the afternoon of that day (their banking hours ending at two), and was then, before two, returned to the Commercial .Bank, unpaid, and the cashier of the latter bank (being a notary), gave the notice' of protest to the indorsers. There were no funds in the City Bank to pay the note, and no formal demand was made.

From this statement, it is entirely apparent that the Commercial Bank expected to collect, and receive at its own counter, the avails of that note, that day, during business hours; i. e., before two o’clock; and had the note not been returned before two o’clock, that bank could properly have supposed the note paid, and that the City Bank held the avails as a debt due to the Commercial. To avoid any mistake of this kind, the City Bank would, before two, return to the Commercial this, as well as all unpaid notes, that the business of the day might be closed within business hours. And whatever questions might arise, had the drawer, just before two o’clock, placed at the Troy City Bank funds to meet the note, we have no such case before us. We have a case in which, for all the. business hours of the day, except perhaps fifteen minutes next before two o’clock, the note was, for all purposes of payment, in the precise condition it would have been, had the Troy City Bank been the holder, instead of receiving it to be paid; to which case the decision in Gillett v. Averill (5 Denio, 85), fully applies. There was no need of the naked formality of a technical demand; the teller demanding of himself payment of a note, to pay which he knew there were no funds. When a case comes before us, where there has been a note protested, during business hours, in such a way that the indorsers might be prejudiced, or that the settled rules of law were clearly infringed, it will be time enough to deny a plain right on a technicality. This is not that case. At two o’clock there were no funds to meet the note; and nobody has been injured by the protest.

The decision of the Supreme Court should be affirmed.

Judgment affirmed.


author: Smith, J. WRIGHT, J.

text:
    Main v. Cooper.
    An action by an assignee of the lessor against the assignee of the lessee, for arrears of a perpetual rent reserved by a lease in fee, brings in question the title to real estate; and when upon the trial the plaintiff’s claim . is disputed, a justice of the peace is ousted of jurisdiction.
    Appeal from the Supreme Court. The plaintiff brought his action in a Justices’ Court, to recover rent claimed to be due to him as assignee of a lease in fee from Stephen Tan Eensselaer to one Snyder, of a lot of land in the county of Eensselaer, reserving a wheat rent. The recovery was sought against the defendant for rent accrued up to 1856, upon the part of the premises which he occupied. It was alleged that the rent for thirteen years, ending with the year 1855, had become due and was unpaid. All the allegatiqns in the complaint to show a cause of action were put in issue by the answer of the defendant, which was a general denial.
    On the trial, the plaintiff, with the view of showing that he was the assignee and owner of the rent, offered in evidence a lease in fee from Stephen Tan Eensselaer to Lorenzo Snyder, of a lot of land in the county of Eensselaer: the will of Van Eensselaer, proved in 1839, devising his manor lands in said county, together with the appurtenances, rents, issues and profits thereof, to his. son William, his heirs and assigns: an assignment in trust to sell, from William P. Van Rensselaer to persons named in the deed; and an assignment from the assignees of William P. Van Rensselaer to the plaintiff, dated the 24th' April, 1852, “ of the rents, reservations and covenants reserved and covenanted to Stephen Van Rensselaer, his heirs and assigns, in the lease in fee to Snyder, together with the rents in arrear and unpaid.” This evidence was objected to on the ground that it involved the title to real property, but was received by the justice. The defendant also asked that the action be dismissed, on the ground that, by the plaintiff’s own showing, the title to real property was in question, which title the defendant disputed. The motion was denied. The justice rendered judgment for the plaintiff, for one hundred dollars and costs. His judgment was affirmed by the County Court of Rensselaer, but the latter judgment being reversed by the Supreme Court, at general term in the third district, the plaintiff appealed to this court.

      William A. Beach, for the appellant.

      Anson Bingham, for the respondent.
   Smith, J.

Section 54 of the Code provides, that no justice of the peace shall have cognizance of a civil action “ where the title to real property shall come in question as provided by sections 55 to 62 inclusive.” Sections 55, 56 and 57, provide the mode in which the defendant may by setting up in his answer that such title will come in question on the trial of the cause, giving an undertaking in effect to appear in the Supreme Court upon a complaint for the same cause of action, procure the action to be dismissed by the justice. Section 58 provides that in such case, where title is plead before the justice, if the undertaking required is not given, the justice shall have jurisdiction of the same, and the defendant shall be precluded in his defence from drawing the title in question. Section 59 then provides that, “ if, however, it appears on the trial from the plaintiff’s own showing that the title to real property is in question, and such title shall be disputed by the defendant, the justice shall dismiss the action and render judgment against the plaintiff for the costs.”

As the defendant did not in his answer set forth any matter showing that the title to real property would come in question, and give the undertaking as required in sections 55, 56 and 57, to oust the justice of jurisdiction of the cause, the justice was clearly entitled to proceed with the trial unless proof of such title came from the plaintiff and was disputed by the defendant.

The only question therefore presented for our decision is, whether it appears from the plaintiff’s own showing, under section 59, that the title to real property came in question on the trial' of the cause, and it was disputed by the defendant.

The - action was for rent reserved in perpetuity in a grant in fee. The rent was payable in specified articles of personal property and not in money, and the duty to pay it and the right to receive it rested in covenants running with the deed. There was no privity of contract between the plaintiff and defendant. The first step in the process of establishing a right of action on the part of the plaintiff, was necessarily to show title in himself to the rent claimed, issuing out of the land in the occupation of the defendant. To prove his complaint, he was bound to show the original indenture of lease, and that he had succeeded to, or had acquired by grant or assignment, all the rights of the lessor to receive the rent reserved in such lease. He could only show these facts by the deeds and other paper evidence of title.

The plaintiff so understood his rights and the necessities, of his case, for nearly the whole evidence given before the justice consisted of deeds, the will of 'Mr. Van Rensselaer, exemplifications, petitions to the court, and orders of the court showing a deduction of paper title as complete and orderly as if the action had been ejectment for recovery of the land.

Against the introduction of this chain of paper evidence of title, and to each and every part thereof, the defendant’s counsel distinctly objected, and insisted that the evidence tended to bring in question title to real estate, which he disputed. The plaintiff by this evidence was seeldng to establish, that the defendant was in possession of land as the assignee under Snyder, the original lessee, subject to a rent charge, in perpetuity, reserved in covenants in such lease; that the plaintiff was the assignee of those covenants, from and under the original lessor, and was entitled to recover therein, in the action for the rent reserved and in arrears for many years.

The claim made and sought to be established by this proof was, in effect, that the plaintiff had a perpetual interest in the land occupied by the defendant, to the extent of a rent charge, payable yearly, as claimed in the complaint, “ of five bushels of good, clean, merchantable winter wheat ” (the original lease called for 16£ bushels, for the 187 acres), coupled with a right of re-entry for the non-payment of such rent.

The claim in substance, as made, is, that the estate of the original lessee, Snyder, was ah estate upon condition; that this condition was the payment of the rent reserved; and that for the breach of this condition, the grantor and his heirs or assignees might re-enter, the lessee or his assignees forfeiting, and the lessor or his heirs or assignees acquiring, or being restored to, ’the whole estate.

The claim thus made, it • seems to me, cannot be anything less than the claim of an interest in, or title to land. It is the assertion of a right to a perpetual interest in the land, as rent issuing from and running with the land. It is strong enough to overreach and destroy, upon contingencies, all title dr interest of the lessees. It may ripen by default of the lessee into a perfect title.

It has been held in this court, that upon cases of this precise description ejectment lay for the non-payment of rent (Van Rensselaer v. Ball, 16 N. Y., 10); and actions of ejectment have been maintained, in repeated cases, upon this title, or for the non-payment of rent upon these leases. (Wain v. Green, 32 Barb., 448; Van Rensselaer v. Snyder, 3 Kern., 299.)

When it distinctly appeared before the justice, that the plaintiff’s claim was of this character; that it could only he established by deed; that it involved a title to or interest in the land of the defendant, in perpetuity; and that the defendant resisted such claim, and distinctly disputed such title, it was his duty to have dismissed the action, under said section 59 of the Code.

I agree that the mere introduction of deeds or of paper evidence of title to land, before a justice, does not necessarily oust him of jurisdiction; and think the correct exposition of this statute is given by Judge Cowen, in Koon v. Mazuzan (6 Hill, 45). That was an action on the case for injuries to demised premises. The injury being to the tenant, it was necessary for the plaintiff, who was the reversioner, to show title. The plaintiff on the trial introduced a deed conveying to him the house and lot without objection. Judge Cowen if says: “ The evidence was received without objection and the title was not disputed'' and properly held that the justice was not bound to dismiss the action unless his attention was distinctly called to the question and the title expressly disputed. So also it was held in Burr v. Scofield (8 Barb., 241); Bellows v. Sackett (15 id., 103).

The justice too, I think, in all cases where deeds or paper evidences of title to real estate are introduced before him,' is entitled to consider the purpose for which they are introduced. If they are merely introduced incidentally to establish some collateral fact not involving any title to or interest in lands, he is to receive them like other evidence.

But it is said this case presents no question of title to real estate; that it is an action for rent in arrear, Which is a debt due and owing and collectible like other debts; and an action for its recovery cannot be deemed an action for the recovery of real property, and that title to real property cannot come in question except by assailing that of the original lessor, and that a denial of the claim to rent in arrear only puts in issue the existence and ownership of the debt.

It is very true that rent in arrear is a debt due, and an action for its recovery does not involve, ordinarily, any question relating to the title to the land. Between landlord and lessee, where a privity of contract confessedly exists, the plaintiff in an action to recover for rent in arrear, need not prove title and it cannot be called in question. He may also recover for use and occupation, and make all the proof requisite to entitle him to recover by parol; and if a written lease exists it may be referred to and proved and used to fix the amount of the recovery under the statute;

But these principles of law cannot be applied to this case. The defendant and his assignees have confessedly been in possession of the land in question for nearly seventy years, claiming title thereto in fee. The plaintiff seeks to charge this land with a rent charge, which the defendant is entitled to resist. He has made no contract. Ho deed or lease executed by him can be produced to estop him. He claims to hold in fee and admits nothing. He denies the plaintiff’s title and disputes his claim. The plaintiff is bound to make out his right of action and he can only do it by deed. He is obliged to prove, assuming that the defendant’s land was originally charged with the rent, that he has acquired a right to enforce the claim. The claim which the plaintiff makes, is, as Judge Demo in Van Rensselaer v. Hays, 79, calls it, an heritable estate, and descends to the heirs of the grantor. The plaintiff is not heir of the lessee but assignee of a devisee of the grantor. The defendant clearly can dispute the plaintiff’s title as such assignee to maintain an action upon the covenants in this lease and deny their validity" and continuance. There is no estoppel between them, and if there were it could not be assumed until j udicially declared. But the learned counsel for the appellants admits that “ rents reserved upon leases in fee are undoubtedly treated as realty in some of their capacities and incidents,” but insists that, as this action is for rent due, the grants under which the plaintiff claims are merely assignments of a chose in action.

If rents reserved in this class of leases are in fact treated and considered properly as realty, as “inheritable estates,” as interests in perpetuity in land which descend to the heirs, as resting in deed, and only capable of establishment by the same degree and kind of proof as title to land, can it be that an action to recover such, rents does not necessarily involve questions relating to the title to real property; and will not a recovery in such an action necessarily involve a judicial determination of the existence and validity in law of the claim or right in question ? Will it not rest upon a decision that the land in question is subject to the perpetual charge claimed ?

It is not necessary, to oust the justice'of jurisdiction, for the court to pass upon the nice, difficult, and doubtful question relating to the plaintiff’s claim, and arising out of the evidence introduced before the justice in its support, or that we should decide what his precise rights in fact, were under the deeds and paper title then exhibited as evidence of title. It is apparent that the questions are disputable and not of easy solution. The records of the judicial tribunals of the state for the last twenty-five years, show that they involve important interests, are considered of vital consequence, and have been raised, debated and discussed, and litigated with ability and earnestness by able counsel.

Whatever the plaintiff’s right may be, I cannot think that a claim to a perpetual charge upon the land occupied and claimed by the defendant of a rent of “ five bushels of good, clean, merchantable' winter wheat,” is not a claim of such an, interest in real estate as essentially to affect the defendant’s title to his land ; and that an action designed to enforce, adjudicate, and establish such claim forever, is not one where the title to real property does come in question within the intent and meaning of the statute-conferring and defining the jurisdiction of justices of the peace.

The statute excluding from their jurisdiction cases in which the title to real estate should come in question, was designed for just such pases as the present; and I can imagine no one which would more perfectly illustrate and vindicate the policy, propriety and wisdom of the provision;

I think the judgment below should be affirmed.

WRIGHT, J.

No justice of the peace has cognizance of a civil action when the title to real property shall come in question. (Code, § 5 subd. 2.) Title may be brought in question by the defendant setting it up in his defence, or it may be necessary for the plaintiff to prove his title in order to sustain his action. In the former case, unless the defendant proceeds in the manner prescribed by the Code, the justice shall have jurisdiction of the cause, and the defendant be precluded, in his defence, from drawing the title in question. (Code, § 38.) In the latter case, it is provided that “ if it appear on the trial, from the plaintiff’s own showing, that the title to real property is in question, and such title shall be disputed by the defendant, the justice shall dismiss the action, and render judgment against the plaintiff for costs.” (Code, § 59.) If it be necessary that the plaintiff shall establish his title in order to recover, and the defendant disputes it, it is the duty of the justice to dismiss the action; and the consent of the parties that the justice may adjudicate the question, will not confer jurisdiction.

The single point in the present case is, whether, by the plaintiff’s own showing, the title to real property was in' question. Rent in fee falls within the common law definition of things real. The rent claimed was real property; and before the plaintiff could recover it was necessary that he should establish his title. This he attempted to do by showing that the rent came to him by assignment from Yan Rensselaer, the original grantor. Unless he had acquired the right of Yan Rensselaer to the perpetual rent reserved on the lease in fee to Snyder, or, in the words of the complaint, became seised in fee of such rents,” he could maintain no action for any part of the reserved rent. It is not pretended that the plaintiff became the owner of any portion of the rent, otherwise than as the assignee of all the estate of Yah Rensselaer ; and the recovery was sought and obtained not only for rent that had accrued before the assignment, but that which became due and payable subsequently. The original lease, and its several transfers, given in evidence by the plaintiff, were grants of quasi realty, and not merely assignments of a chose in action. It was in this mode,- and through these conveyances, if at all, that the plaintiff could make title to the rent. To establish any claim to recover, he must show himself to have succeeded to the rights of Van Rensselaer. This he undertook to do by the introduction of the will of the original grantee, and the several assignments from the heir of such grantee and his assignees.

It is nof*,necessary to inquire whether if the action had been by the original lessor of the premises to recover the rent, the defendant could have disputed his title. When there is the relation of landlord and tenant, and the tenant is in possession of demised premises, he will be presumed in under the lease, and will be estopped from disputing the title of the landlord. But when the relation of landlord and tenant does not exist or, having existed, the tenant ceases to hold under the lease, and surrenders the possession, there is no estoppel. So, also, the tenant is not precluded from showing in any way he can that the title of his landlord has terminated since the commencement of the tenancy. He cannot deny that the person by whom he was let into possession had title at that time, but he may show that such title is determined. (Doe v. Lady Smythe, 4 M. & S., 347.) When there has been an. actual eviction by title paramount, he may show a state of facts in protection of his possession inconsistent with the claim or title of his lessor. So, also, he may do this when there has been a constructive eviction, as in Doe v. Barton (11 Adol. & Ellis, 315). If the rent in this case was not rent service, but a rent charge granted to Van Rensselaer by the ancestor or assignor of the defendant, I can see no reason why the latter may not deny the plaintiff’s title, and put him to the proof of it. Here the plaintiff was a stranger to the original transaction. He claimed title to the rent reserved in the Snyder lease. The claim was not admitted, but denied by the defendant. Had he merely proved the original lease, and the amount of the rent reserved by it, due and unpaid, it will not be pretended that he would have made a case for a recovery. He must go further, and show title in himself to the rents. This the plaintiff undertook to do, and I think it appeared from his own showing that the title to real property was in question. The justice was called upon to adjudicate upon a material allegation in the complaint, and denied, viz.: that the plaintiff was seised in fee of the rents reserved in the lease to Snyder. This question was not within the jurisdiction of the justice.

The judgment of the Supreme Court should be affirmed.

SELDEIT and SUTHERLAND, Js., expressed no opinion; all the other judges concurring,

Judgment affirmed.


author: Sutherland, J. Davies, J., (dissenting.)

text:
    Kellogg v. Olmsted et al.

    A promise by a debtor that he will not pay a debt then past due until a future day named, and that he will then pay the same with interest, held not to be a good consideration for the promise of the creditor to extend the time for payment.
    Appeal from the Supreme Court. Action on a note for six hundred dollars, made by the defendants and one John I. McPherson, since deceased, dated October 1, 1855, payable one year after date, with interest semi-annually, to one George E. B. Covil or bearer.
    The answer admitted the making and delivery of the note to Covil and the transfer of it to the plaintiff, but set up as a defence, that on the 8th day of October 1856, and after the note became due, and while Covil was the holder of the note, it was mutually agreed between Covil and the defendants, “that in consideration that the defendants would keep the principal sum of the said note until the 1st day of April, 1857, and pay the same with interest on that day, he, the said Covil, would extend the time of payment of the principal of said note until the 1st day of April, 1857; that the said defendants then and there assented to said proposition, and then and there agreed to and with said Covil, to keep said principal sum of said note until the first day of April, 1857, and to pay the same with interest on that-day;” and that the note was transferred to the plaintiff by Covil, after the agreement so made by him with the defendants; and the plaintiff took the note with full knowledge thereof.
    On the trial of the action before a referee, the defendants offered to prove, the defence so specially set up, but the referee ruled out the evidence, upon the ground that the agreement or matters thus specially set np as a defence, if proved, would be no defence. To this ruling the defendants excepted. The appeal to this court was from the judgment of the Supreme Court in the eighth district, affirming the judgment entered on the report of the referee.

      H. R. Selden, for the appellants.

      Charles Danforth, for the respondent.
   Sutherland, J.

I cannot avoid thinking that this case presents an ingenious attempt on the part'of the appellants, to avoid the application of the well settled principle, that an agreement by a creditor to postpone the payment of a debt due, until a future day certain, in consideration of no other or further consideration than the agreement of the debtor to pay the debt with interest on that day, is void for want of consideration.

It has been decided over and over again, if the creditor .whose debt is due, receives part payment of it, and in consideration of such payment, promises to postpone or extend the time of. payment of the balance, that such promise is void for want of consideration. (Miller v. Holbrook, 1 Wend., 317; Gibson v. Renne, 19 id., 390; Pabodie v. King, 12 John., 426; Reynolds v. Ward, 5 Wend., 501; Fulton v. Mathews & Wedge, 15 John., 433.)

These cases certainly assume, that a promise by a creditor, no part of whose debt is paid, to extend the time of payment of the whole debt to a future day certain, in consideration-of the promise of the debtor to pay the debt with interest on that day, would be void.

A creditor promising to extend the time of payment until a certain day, would not expect or ask his debtor to make a formal express promise in consideration of such extension, to pay his debt on that day, and not before that day; nor would the debtor, relying on such promise of extension, be very apt to make any such formal express promise; but if the promise of extension on the part of the creditor were held valid, such a promise on the part of the debtor would necessarily be implied. It would be implied from his acceptance of and reliance on the promise of the creditor. Ho court would ever hold the promise on the part of the creditor valid and binding without holding that there was a corresponding obligation on the part of the debtor to pay at the time fixed by the promise, of extension, and not to pay before; that is, in the language of the defendant’s answer, to keep the money until the day fixed by the promise of extension. Hence the cases before cited necessarily assume, that the agreement, or mutual agreements, specially set up in the defendant’s answer would be nudum pactum and void, and would not have been a defence if proved; for these cases must have been decided on the assumption, if the promise on the part of the creditor to extend the time of • payment was valid, or should be held valid, that there was or would be a corresponding valid obligation or promise on the part of the debtor not only to pay at the time fixed by the agreement of extension, but also not to pay before. These cases then, in effect, decide, if a creditor whose debt is due, in consideration of the payment of a part of it, and of a promise on the part of his debtor to pay the balance on a certain future day, and not before, promises to extend the time of payment of such balance until that day, that such promise is without consideration and void.

In this case, the defendants paid no part of the debt. The sole alleged consideration of the plaintiff’s promise to extend the time of payment of the whole debt, until the 1st of April, 1857, was a promise, on the part of the defendants, tó pay the debt with interest on that day, and not before that day. The promise on the part of the defendants is not stated in the answer, in these precise words, but is substantially this:

But upon principle, and without reference to cases, the counsel for the appellants concedes, that their promise to pay interest was no consideration for Covil to delay payment, because, if Covil had delayed payment without such promise, he would have been entitled to such interest; but he insists that their promise not to pay the principal until the 1st of April, and then to pay it, was a sufficient consideration for the promise of delay on the part of Covil, because it deprived, them of the right to pay the money at any time, and secured to Covil the right to compel the defendants to keep the money until the 1st of April. This, I think, is fanciful. The appellants were to pay only legal interest for the use of the money. The rate of interest, or value of the use of money, being fixed by law, the law cannot hold the delay of payment to' be either a disadvantage to the debtor, or an advantage to the creditor; the one paying, and the other receiving the legal rate of interest for the use of the money only. The law cannot hold it to be a disadvantage to a man, to agree to keep the money of another for a time certain, for the use of which he is only to pay the rate of interest fixed by the law.

My conclusion is, that the judgment of the Supreme Court should be affirmed, with costs.

WRIGHT, GOULD ALLEN and SMITH, Js., concurred.

Davies, J., (dissenting.)

The question presented for decision is, whether the agreement offered in evidence was founded on a sufficient consideration. I am finable to see why not. It was undeniably a benefit to the holder, of the note to invest his money for a further term of six months at lawful interest, and it is not clear that it was a disadvantage to the defendants to pay that rate of interest for that term. Money lenders regard it as advantageous to themselves to loan their money securely, and the benefit to them seems to me to be a sufficient consideration for a promise to permit the lender to have it a given length of time, he paying the lawful interest thereon. Such contracts and agreements are frequently 'made, and the benefit or injury to the lender or borrower depends mainly upon the state of the money market. When the current rate of interest is less than the lawful rate, the benefit is to the lender and the injury to the borrower.

The two cases cited from the Hew Hampshire Reports are in point, and sustain the position of the defendants. In Wheat v. Kendall (6 N. H., 504), Parker, J., says: “We are not pre pared to accede to the argument that a contract to delay for legal interest would not be on a sufficient consideration because the original contract gave that, if nothing further had been agreed to be paid. The security which the creditor would acquire by such agreement, that the payment should be delayed, and that he should receive interest for the whole of the extended time, might well form a sufficient consideration.” In Bailey v. Adams (10 N. H., 162), the court are more emphatic and pointed. The court say the agreement to pay simple interest may be a sufficient consideration for such a contract to delay, if there is in the contract for delay a stipulation by which it is secured to the creditor for any specified time. As for instance, if the creditor, the note being due, should agree with the principal to delay the payment six months on the consideration that the principal promised to pay the interest for that period of time, this would be a contract upon a sufficient consideration. The promise to pay the interest under such circumstances would bind the principal to the payment of it for the period agreed on, and thus secure the creditor a right beyond what he had before, even if the note contained a promise to pay interest; because the debt being due, the principal or surety, before the new agreement, might pay it at any time, and the original contract did not therefore secure the creditor interest for a single day to come.” The reasoning of the court in these cases is satisfactory and conclusive to my mind. I. have examined the cases referred to in the opinion of the Supreme Court, and I do not find anything there which would lead to a different result.

I incline to reverse the judgment of the Supreme Court and order a new trial.

Denio, Ch. J., also dissented.

Judgment affirmed.


author: ALLEN, J.

text:
    Bruce v. Tilson.

      A party entitled to a conveyance upon request, may bring his action for specific performance without request. A previous demand is only important in equity in reference to costs.
    The statute of limitations begins to run at the time the plaintiff might bring his equitable action, and is charged with notice that his right is denied; a new cause of action cannot be created by a subsequent demand of specific performance.
    The vendee being entitled to a conveyance of land, and of a profit o prendre in adjoining premises, accepted a deed of the land only, protesting that he relinquished no right. The vendor did not expressly deny the right of the vendee to a further conveyance, but declined then to execute on account of the opposition of his wife. After the lapse of ten years the vendee assigned his claim, and the assignee demanded performance: Held, that he was barred by the statute of limitations.
    Action to compel the conveyance of the exclusive privilege of using, burning and carrying away stone from quarries on the defendant’s farm in pursuance of, a contract made January 9,1838, by which the defendant agreed to sell to one Lawrence “ the exclusive privilege of using, burning and carrying away stone from all the quarries situated on the farm of the said Tilson with three acres of land lying on the canal and extending back to said quarries, for the sum of one thousand dollars, to be secured by bond and mortgage on said premises payable in two years from date with interest payable yearly.” On the 19 th January, 1838, the defendant and his wife conveyed to Lawrence four and a half acres of land described by metes and bounds, and which was surveyed and laid out by direction of the defendant and under the supervision of both parties, and Lawrence gave his' mortgage thereon to secure his bond for one thousand dollars, the purchase money mentioned in the contract and the consideration named in the deed, payable in two years thereafter, which was subsequently paid. The action was tried by a referee and on the evidence he found that “ at the time of the execution and delivery of these last mentioned instruments, the parties, Lawrence and Tilson, were together at the house of the defendant, and the exclusive privilege claimed in this suit, was a matter of conversation between them. Lawrence desired a conveyance of that as well as the land. Tilson did not convey it, assigning as a reason that his wife declined. Lawrence stated that he relinquished no rights given him by the contract. No other business but the contract occupied their- attention. The conveyance of the privilege was desired by Lawrence, and omitted to be given by Tilson, for the reason assigned, and Lawrence gave notice that he relinquished no right.” Lawrence used the quarries upon the land conveyed to him up to 1854, when he assigned his interest in the contract to the plaintiff for two hundred and fifty dollars. In April, 1854, the plaintiff demanded a conveyance of the exclusive privilege mentioned in the contract, and upon the refusal of the defendant brought this action. The referee found, as matter of law, that the action was barred by the statute of limitations, and gave judgment against the plaintiff, dismissing the complaint, with costs.
    From the judgment of the-Supreme Court at general term, affirming the judgment of the referee, the plaintiff appealed to this court.

      John H. Reynolds, for the appellant.

      Amasa J. Parker, for the respondent.
   ALLEN, J.

Prior to the enactment of the Code of Procedure, the subject matter of this action was cognizable only by a court of equity, courts of common law having no jurisdiction to entertain a suit for the specific' performance of a contract. The cause of action was therefore within the ten years’ limitation prescribed. (2 R. S., p. 301, § 52.) The language of that section is: “Bills for relief, in case of the existence of a trust not cognizable by the courts of common law, and in all other cases not herein provided for, shall be filed within ten years after the cause thereof shall accrue, and not after.” If a cause of action had ever accrued to the original vendor, the plaintiff’s assignor, and the statute of limitations had been permitted to run against it, the bar of the statute could not be avoided, and a new cause of action created, upon the same contract, by the demand of specific performance by the assignee, in 1854. The right of action, once, barred by statute, can , only be revived by the act and assent of the party to be charged. (Kelsey v. Griswold, 6 Barb., 436.) The cause of action accrued whenever the plaintiff or his assignee could'have filed a bill for the relief sought in this action. If, at any time, without further act on their part, or default or breach of duty on the part of the defendant, they could have come into a court of equity and entitled themselves to a specific performance of the contract, the statute of limitations commenced running from that time, and the lapse of the statutory period of ten years barred the action. In order to put a party in default, in the case of dependent covenants, so as to subject him to an action at law, there must be a tender of performance by the other party to the covenant or agreement, and a demand of performance on his part, and when an act is to be done requiring time for its performance, a reasonable time must be given for such performance, unless the party of whom the demand is made absolutely refuses to perform at the first demand. An action at law upon the contract, or to recover back the consideration as upon' a rescission of the contract by the act of one of the contracting parties, can only be maintained upon such technical and formal default, unless it may be in some exceptional cases, as when a party has put it out of his power to perform, so that a tender and demand would be nugatory. The rule at law is well settled by a long line of cases, some of which are cited by the plaintiff’s counsel. (Hackett v. Huson 3 Wend., 249; Blood v. Goodrich, 9 id., 68; Connolly v. Pierce, 7 id., 129; Fuller v. Hubbard, 6 Cow., 13; Lutweller v. Linnell, 12 Barb., 512.) The same principle applies when equitable relief is sought, on the alleged ground of a rescission of the contract by the act or default of one of the parties to it. (Brunell v. Jackson, 5 Seld., 535.) Wells v. Smith (2 Ed. Ch. R., 78; affirmed 7 Paige, 22), turned upon the construction of the contract, the question being whether time was of its essence, and it was held that it was so, and that the complainant had lost his rights under the contract, by not performing at the day. The general discussion, by the Vice-Chancellor, of the course of procedure to secure one’s rights under such a contract, has no application except to cases falling within the same category. The contract does not in this, as in the case cited, make time essential by prescribing a fixed time for its performance, and making a performance at the day, by either party, a condition precedent to the request to enforce it against the other. The agreement looks to and fixes no particular time for its performance, but imposes a present duty upon the defendant to convey the powers and privileges mentioned, whenever the plaintiff shall request. A previous demand is not, nor is any act on the part of the vendor, made necessary by the terms of the contract, to fix the liability of the defendant. -He has promised to convey generally, and is therefore bound to perform upon request; in other words, there is a present liability which may be enforced at any time. The vendor at once acquired a right to a specific performance of the contract by the vendee. When such right exists, it may be enforced in equity without a previous request or demand. The contract not making a request or demand essential to the right of the vendor to enforce performance; the law does not annex it as a condition, and it is sufficient if he offers to perform in his bill of complaint, and is able to perform at the time of the final decree. A request made by action is sufficient, and a request before action is not necessary. The distinction between an action for a specific performance in equity and a suit at law for damages, for non-performance, is this, that in the latter, the right of action grows out of a breach of the contract, and a breach must exist before the commencement of the action, while in the former, the contract itself, and not a breach of it, gives the action. A demand of performance before suit brought is only important in reference to the costs of the action, and has no bearing upon the merits or the rights of the parties. But by a demand and refusal, the party liable to perform is put in the wrong and in the situation of unreasonably resisting the claim of his adversary, and is, therefore, chargeable with costs. Costs in equity are always in the discretion of the court, and whether they are granted or withheld, they are but as incidents to and no part of the relief sought. A party getting the relief asked, may be compelled to pay costs, but nevertheless his cause of áction had accrued upon the filing of the bill or the commencement of the suit. (Vroom v. Ditmas, 4 Paige, 526.) A party filing a bill for a specific performance upon an offer of performance on his part, and a demand from the other party, must make the proper offer in' his complaint; and if he is able to perform at the time of the final judgment, he is entitled to his relief, although he may not have been in a situation to perform at the time he brought his suit. (Baldwin v. Salter, 8 Paige, 473; Stevenson v. Maxwell, 2 Comst., 408.) The rule is, that the plaintiff, in actions for the specific performance of contracts, must aver and plead performance, or a readiness and willingness to perform on his part. (Walker v. Jefferrys, per V. C., 1 Hare, 352.)

It is analogous to the rule of the common law, that a note payable on demand is payable instanter, and the statute commences to run against it from its date; while, if it is payable a given time after demand, or it contains any provision showing the intent of the parties that it should not be payable until actual demand, the rule is otherwise. (Wenman v. The Mohawk Ins. Co., 13 Wend., 267.) The vendee has the right, immediately upon the execution and delivery of the contract, to apply to the court of equity for a specific performance, and the only consequence of such immediate application would have been to charge him with costs; but the relief could not have been denied him, merely because the suit might have been ill-advised, hasty, and unnecessary. The cause of action thus arose, and the rule of courts of equity is, that the.cause of action or suit arises, when, and as soon as, the party has a right to apply to a court of equity for relief. (2 Story Eq. Jur., § 1521, a.) When the party entitled to a specific performance of an agreement to convey land has been in the uninterrupted possession of the premises, an objection to a decree, on account of the lapse of time, will not be sustained. (Miller v. Bear, 3 Paige, 466.) The possession saves the action, and makes the case an exception to the rule which controls other executory contracts. The question of adverse possession, as to which several cases are cited by counsel, is not in the case. It is not an action in rem, to secure the realty or its possession, but is an ordinary equitable action to enforce a simple executory contract, upon which the plaintiff and those under whom he claimed have slept upon their rights, until a statutory bar has arisen against them.

• The maxim that in equity that which is required to be done is considered as done, is invoked by the plaintiff, in aid of the action. But it is not easy to see how a court can assume a fact as accomplished at the instance of a suitor who alleges that it has not been done, and asks, as the only relief sought, .that the court may cause it to be done. It is a maxim applied for the advancement of justice, and as a protection and defence, and it would be a perversion to resort to it in avoidance of a statute of repose. (Burch v. Mahony, 1 Barb., 648; Hasbrook v. Paddock, 1 id., 635.) Had the plaintiff been in possession for twenty years, the maxim might avail him if his possession was disturbed by his vendor. (Miller v. Bear, supra.) So, too, the equitable doctrine that the vendor is the trustee for the vendee of such property from the time of the contract, and that the whole title is deemed to pass by the contract cannot give length of days to an agreement for its conveyance. When dealt with as a contract, it is subject to all the rules which apply to and control other contracts, and cannot by any pretence be taken out of the operation of statutes general in their operation, and applicable to all contracts. If in equity, the title to the real property is vested, in the plaintiff either as against the defendant or third persons, the right, just so far as it has vested, will be protected whenever it is assailed. But when the plaintiff asks the aid of a court of equity to enforce the contract for a legal conveyance, he is within the statutes for the limitation of actions. The plaintiff would have the contract construed as a conveyance in presentí, an executed contract rather than as an agreement to convey in future, an existing contract. But the whole tenor of the instrument shows that it was intended by the parties as a memorandum of their agreement, and that further acts were contemplated to complete and carry it out, to wit, giving of a conveyance by the defendant, and of a mortgage for the purchase money by the vendee. The parties so construed it by their subsequent acts, and the plaintiff ratifies the construction by bringing this action. It was then an agreement by the defendant to execute upon request, and for the considerations named, a grant of an easement or servitude upon his land, which when executed would have charged the land; but until executed, the contract was preserved, binding only the defendant, and creating no charge upon the l&nd. An agreement for a lease is not a lease, or equivalent to a lease, and an agreement to create or grant an easement is not a grant or its equivalent. If the referee had found that the deed of January 19,1838, was a substituted and full performance of the contract of the defendent, accepted and acquiesced in by the vendee, the finding would, in my judgment, have been fully sustained by the evidence. But upon the ground upon which the case was decided by the referee, there was no error, and the judgment must be affirmed.

Smith, J. The referee put his decision, dismissing the plaintiff’s complaint, upon the single ground that the action was barred by the statute of limitations. The plaintiff excepted to the finding of the referee, on this question of law, and also to his decision to dismiss the complaint. If the referee decided correctly, that the statute of limitations constitutes a bar to the plaintiff’s recovery, the complaint was properly dismissed; and, if he decided erroneously • upon this ground, but rendered the proper judgment, the same must be affirmed. If the plaintiff was not entitled to recover upon his whole case,— and the whole case is open to examination, when the complaint is dismissed, or a nonsuit ordered,—■ then the proper judgment was rendered; but if the referee erred in dismissing the complaint, then a reversal of the judgment should be ordered, and a new trial granted.

But I think the referee committed no error in his finding upon the questions of law, and in giving judgment that the complaint be dismissed.

The plaintiff was seeking to enforce an equitable right of action. . If he was entitled to maintain such action, he was equally entitled to institute and maintain it, at any time since the 19th of January, 1838, when the defendant executed the deed for the four and a half acres, and declined to include in the deed the privilege in controversy. At that time, the referee finds that the exclusive privilege claimed in this suit was a matter of conversation between them. Lawrence desired a conveyance of that, as well as the land. Tilson did not convey it, assigning, -as a reason, that his wife declined.

.Lawrence was thus distinctly apprised that the defendant did not intend to deed the exclusive privilege; He made a deed of the four and a half acres, omitting to convey this privilege, and stating that his wife declined to sign a deed conveying the same. Lawrence, while he stated that he intended to relinquish no rights, did in fact take the deed, and gave a bond and mortgage for the whole consideration which he afterwards paid, and immediately went into possession of the four and a half acres, and has continued to occupy the same ever since; never, that we know, even claiming the exclusive privilege afterwards, till he assigned the contract to the plaintiff, in March, 1854, sixteen years afterwards and upwards. Hot-withstanding what Lawrence said at the time, I think it a fair presumption, after such a lapse of time, that he acquiesced in the refusal of the defendant to include the exclusive privilege in the deed-, and assented to receive or regard it as given in full compliance with the contract. But if this was not so, no court of equity I think, would or should ever enforce specifically such a contract, after such a delay under the circumstances of this case, independently of the defence of the statute of limitations.

Lawrence, himself, never asked or sought a conveyance of this special privilege. This action is brought by an assignee of the contract, not by a grantee of the land conveyed, who purchased it for the consideration of one hundred and fifty dollars, March 7, 1854; soon after demanded performance, and in April afterwards commenced this action. It is obviously a speculative suit. It is not the duty or practice of the courts of equity to aid speculators in the enforcement of stale demands beyond the limit of strict legal right.

It has always rested in a large degree in the discretion of the courts of equity, to grant or refuse specific performance, and it is uniformly denied when the contract is a hard one, or the circumstances of the parties or property have changed, or the party has slept upon his rights, or for any reason the claim is unconscionable or unjust, or for any reason unequitable at the time when the aid of the court is invoked. (Seymour v. Delancy, 3 Cow., 445; S. C,, 6 John. Ch., 223 ; 9 Ves., 608; Willard’s Eq., 280; and Story’s Eq., §§ 750, 751; McWilliams v. Story, 32 Barb., 194.)

The point that the right of action did not accrue till the demand made in April, 1854, is untenable. The rules applicable to the making of a demand before the commencement of a suit do not apply to equitable actions. They apply to strict legal fights. In equity the court has a discretion in respect to costs, and if an action is brought to enforce an equitable right unnecessarily and unreasonably, and without giving the defendant a fair opportunity upon request or otherwise, to allow and to satisfy the plaintiff’s claim without suit, the relief may be, and ordinarily will be, granted without costs, and the court, if it thinks proper, may make the plaintiff pay the defendant’s costs. (Vroom v. Ditmas, 4 Paige, 535.) But the objection that a suit is brought without a technical demand is not available to bar an action in equity, if the plaintiff has otherwise a good cause of action. (Stevenson v. Maxwell, 2 Comst., 408; King v. Clark, 3 Paige, 77; Baldwin v. Salter, 8 id., 473.)

The statute of limitations in equity begins to run, as at law, as soon as the party has a right to apply to the proper tribunal for relief. (2 Story’s Eq., §§ 15, 21, a; Whalley v. Whalley, 1 Bligh, 1; Ang. Lim., 41.)

Certainly Lawrence might have commenced this action the next day after the delivery of the deed of the four and a half acres, which was January 19,1838, more than ten years before the commencement of this action.

The decision of the referee was clearly right upon the question, and the judgment of the court below in affirming such judgment should be affirmed, with costs.

All the judges concurring,

, Judgment affirmed.


text:
    Dwight v. St. John.
    Upon an application to" the court, by motion, to cancel a judgment entered' upon confession without action as having been paid, the court may order a reference to ascertain the facts.
    The order of the court denying such motion, made upon full proofs, and appealable as affecting a substantial right, is conclusive between the parties.
    After such an order, the plaintiff in the judgment brought an action for the purpose of having the judgment declared to stand as security for another debt not mentioned in the sworn statement upon which it was entered, and to have such statement amended in accordance with the intent and agreement of the parties as alleged by him, but denied upon oath by the defendant: Held, that while the defendant was concluded by the adjudication upon the motion, in effect that the judgment should stand as security for such further debt, yet the plaintiff could have no affirmative relief

      Appeal from the Supreme Court. The action was brought by Dwight, the plaintiff in .two judgments entered upon confession without action under § 382 of the Code of Procedure. The statements upon which the judgments were respectively entered, declared that one of them was to secure the payment of a promissory note for $7,000, the other, another note for $8,000, both made by the defendant. The complaint in this action averred that it was agreed and intended at the time of the confession of the judgments that they should .stand as security not only for the promissory notes mentioned, but also for an indebtedness of the defendant to the plaintiff arising from the purchase by the former of the steamer Empire on which $30,000 remained due, secured by chattel mortgage of the vessel. The relief prayed was that the j udgments might be declared to have had that effect from their rendition, and to have been and continue valid liens on the defendant’s lands for such Empire debt, as the plaintiff denominated it, and that the defendant should be required to make and cause to be recorded such confessions, acknowledgments and other instruments, as the court should deem necessary to give effect to his alleged agreement, or that the original entries should be so amended as to give effect to the alleged intention and agreement of the parties. It was admitted that the promissory notes had been paid. The answer which was under oath fully denied the case made by the complaint, and alleged that the statements fully expressed the purposes for which the judgments were respectively entered.
    Upon the trial the plaintiff gave in evidence the papers upon a motion made by the defendant in the Supreme Court to have the judgments canceled and discharged of record, as satisfied. Upon the motion being made, the court directed a reference to inquire and report as to the facts set up by the parties which were substantially the same as those averred by them respectively in their pleadings in this action. Upon the coming in of the referee’s report the court denied the motion to satisfy and discharge the judgments, or either of them. The papers given in evidence included the affidavits made for and against the motion, the referee’s report, with the evidence, oral and documentary, taken by him, and the orders of the court. The plaintiff insisted that the whole subject matter of the action was res adjudicata and rested his case. The defendant moved to dismiss the complaint for want of proof. The judge before whom the cause was tried found as facts upon this evidence, that the agreement set up in the complaint was not proved: that neither of the judgments was entered upon any other agreement or consideration than those set forth in the statements on which they were entered; and that both of the judgments had been paid and satisfied. The judge held, as matter of law, that the plaintiff was not entitled to have the confessions of judgment or either of them amended or any part of the relief prayed for in the complaint, and that the defendant was entitled to have the judgments canceled of record. Judgment to this effect was entered, and having been affirmed at general term in the first district, the plaintiff appealed to this court.

      William C. Noyes, for the appellant.

      John Sherwood, for the respondent.
   Gould, J.

If the reference ordered by the Supreme Court (on the defendant’s motion to set aside the executions issued on the judgments and to order those judgments canceled) was without authority of law, then the whole decision of that matter was erroneous. But the reference was plainly within the meaning of section 271 of the Code, subdivision 3; and without the Code the court always had the right to refer to take proofs on matters upon which it desired fuller information before proceeding. In that matter, however, there is as to this defendant a further and a conclusive answer. He was the moving party and if he objected to the order granted in any respect, he should have appealed therefrom, and have had it made correctly. Instead of appealing he proceeded with the reference; and, indeed, he has never appealed from the decision or final order on the report of the referee. It is surely too late for him to take the objection that a reference was irregular.

Again, is that final order so made by the Supreme Court on that motion, conclusively binding on the defendant as an adjudication that those two judgments by confession were really given as security (not merely for the note named therein, but) for the debt arising out of the sale of the steamer Empire ? Upon this point it is to be observed that some decisions (made before the existence of the Code) especially that of Simson v. Hart, in the Court of Errors (14 Johns., 63), are chiefly based upon the ground that such summary proceedings as they passed upon,'were then heard without full proofs, and were not reviewable. Whereas, in the case before us, the hearing was upon full proofs; and the Code has entirely taken away the other ground by making the proceeding liable to review. By its section 349, the order referred to was appealable to the general term of the Supreme Court, and to this court by section 11, division 3; for if those judgments were given for purposes which had (at the time of the motion) been fully satisfied, it was matter of “ substantial right ” on the part of the defendant to have the executions vacated and the judgments canceled; and the motion was not addressed to any discretion from which no appeal lay.

Since then a full hearing, with the right of appeal, was open to the defendant on that motion, how is he to avoid the binding effect of that decision, so far as it covers what was actually and necessarily tried on that reference ? It was then necessary to determine: 1st. Whether the notes for which the judgments, on their face, were expressly given, were paid either in full or in part. 2d. If they were paid in full, whether the judgments in fact, and according to the intent and agreement of the parties, were meant as security for any other and what debt. 3d. If they were security for any other debt, whether so much of that debt remained unpaid that one judgment and execution must remain to secure it, or whether both judgments and executions must so remain; or whether (one of the judgments remaining wholly unsatisfied,) the other judgment should, for the amount it was to secure, be reduced from its face. It is entirely plain that, on that motion, the court could have shaped its order to meet either of these points.

And, as the papers show, all these points were actually litigated before the referee and on the motion; and the decision is, that in fact more was due and to be secured by the judgments than the face of both judgments. To this extent, therefore, the defendant should be held concluded by that adjudication. It was fully ascertained that, unless the judgments were security for what was called the Empire debt, they were both satisfied, and the defendant’s motion must have been granted. It was expressly found that they were not satisfied, because they stood to secure that further debt exceeding their, whole amount. So much, then, is finally adjudicated against the defendant; and this court has now no power to interfere with that decision.

As, however, the relief asked in this suit by the plaintiff involves the necessity of not merely making definite or precise a statement of indebtedness actually covered by the terms of the judgment, but of inserting in a statement made upon oath a distinct, substantive indebtedness not covered by the terms of the confession, it is not perceived how that is within the power of any court, especially when the party, whose oath to its truth is required, says on oath that it is not true.

The result at which we arrive is, that so much of the judgment of the court below as orders the canceling of the judgments by confession must be reversed; but that so much as denies to the plaintiff the affirmative relief asked by him should be affirmed and the judgment should be for costs against the plaintiff, and that his bill be dismissed.

All the judges concurring,

Ordered accordingly.


author: Smith, J.

text:
    Black River and Utica Railroad Company v. Clarke.
    The signature to a subscription for stock in an alleged railroad corporation which recites that a company had been formed under the general act, and that the articles of association, with the necessary affidavits, had been duly filed, is conclusive evidence of an incorporation 'against the subscriber.
    The defendant did not, at the time of his subscription, pay the ten per cent required by ch. 140 of 1850, § 4, but subsequently paid forty per cent: Held, that the subscription was thereby made valid.
    Appeal from the- Supreme Court. Action to recover unpaid calls to the amount of six hundred dollars, upon the defendant’s subscription for one thousand dollars of the capital stock of the plaintiff. Upon the trial before a referee, the plaintiff produced a book containing this paper:
    “ Subscription Book of the Black River and Utica R. R. Co. A company having been formed under the law of the State of New York, passed April 2, 1850, entitled, an act to authorize the formation of railroad corporations, and to regulate the same, to construct and operate a railroad from Utica to Clayton, under the corporate name of the Black River and Utica Railroad Company; and the articles of association, with the necessary affidavits, having been duly filed, for the purpose of making subscriptions in consideration of the premises, &c., we the undersigned, do each for himself agree to take the number of shares-set opposite to our respective names, &c., and to pay, &c.”
    The defendant’s subscription for ten shares of one hundred dollars each, was proved, as were calls for six installments of ten per cent each, made subsequent to the payment" of four hundred dollars by the defendant, upon his subscription and the first three calls succeeding it. . The defendant moved for a nonsuit, which was denied, and he took an exception. There was another exception which is sufficiently stated in the following opinion. The plaintiff had- judgment, which was affirmed at general term in the fifth district, and the defendant appealed to this court.

      Alexander S. Johnson, for the appellant.

      E. A. Graham, for the respondent.
   Smith, J.

The motion for a nonsuit was made upon the single ground that it was not proved that the plaintiff was a corporation. The subscription book introduced and proved, signed by the defendant, distinctly recites and declares the formation and existence of a corporation organized under the general railroad act, “ under the corporate name of the Black River and Utica Railroad Company,” and that the articles of association, and the necessary affidavits showing due compliance with the law, had been duly filed. This must be sufficient proof of the corporate character of the plaintiff as against the defendant. By his subscription to this paper he recognized the corporate character of the plaintiff, and became a stockholder in such corporation. He is estopped, by his own acts and admissions, from denying thereafter the corporate char' acter of the plaintiff. Judge Thompson, in Dutchess Cotton Factory v. Davis (14 Johns., 245), said of a defendant sued like the defendant in this action, upon an installment due upon his subscription to the stock of the company: “The defendant having undertaken to enter into a contract with the plaintiffs, in their corporate name, he thereby admits them to be duly ‘ constituted a body politic and corporate, under such name.” The soundness of this rule of evidence has been asserted in numerous cases. (Palmer v. Lawrence, 3 Sandf., 170; Steam Navigation Company v. Weed, 17 Barb., 382.) It was questioned in Welland Canal Company v. Hathaway (8 Wend., 480), but that case did not present the point between a corporation and one of its own stockholders. This is a case like that in 14 Johnson (supra), of an action by the corporation against a stockholder, upon his subscription to its stock. In such case I think the rule stated by Judge Thompson, in the Dutchess Cotton Factory v. Davis (supra), the true one, and should apply. The admission, in the defendant’s subscription, of the existence of the corporation, we think, should be held conclusive against him in such an ‘action. The motion for a nonsuit was therefore properly denied.

The remaining exception discussed, arises upon the offer to prove by the defendant, that at the time of his subscription to the stock, he paid nothing, although subsequently he paid four hundred dollars, in ca'sh, on account thereof.

The defendant’s subscription not having been made to the articles of association for the purpose of organizing the company, or made previous to the filing of such articles, it was essential that the ten per cent be paid before it became a valid subscription.

His subscription was under the fourth and not under the first section of the general railroad act. This section requires the payment of ten per cent by each subscriber, upon the amount subscribed by him, at the time of subscribing.

The intent of this section doubtless was, that no subscription should be valid until ten per cent was paid thereon, and not that it should be invalid if a short interval occur between the actual subscription and the payment of the money. The subscription and the payment of the ten per cent must both concur to make a valid subscription. The subscription one day, with payment the next, would satisfy the statute, and so would actual payment at any period after subscription, with • intent to effectuate and complete the subscription. The writing of the name in the subscription book, should be deemed but part of the transaction, and provisional or conditional till the ten per cent is paid. But after the payment of ten per cent, and certainly after the payment of forty per cent on the subscription, the statute requirement on this point must be deemed fully complied with by the defendant. We" think this exception not well taken, and that the judgment below should be affirmed.

Judgment affirmed.


author: Wright, J.

text:
      Purchase v. Matteson et al.

    It is a mistrial where the judge, there being a question of fact controverted, orders a verdict against a party who has taken exceptions subject to the opinion of the court at general term.
    The party taking exceptions has a right to have them heard upon an application for a new trial, if the verdict be against him and the facts are not conceded.
    The court at general term cannot find the facts on which to base a final judgment. They must either be conceded on the trial or have been found by a jury.
    Appeal from the Superior Court of the city of New York.
    The facts sufficiently appear in the following opinion.

      John Graham, for the appellant.

      John W. Edmonds, for the respondent.
   Wright, J.

This cause was tried in the Superior Court of the city of New York, before the Chief Justice and a jury.

On the trial, evidence offered by the defendants was rejected, and exceptions taken. The action was to recover the amount of two checks made by the defendants, payable to bearer, and transferred to the plaintiff, payment of which had been stopped. The defence was, that the checks had been obtained by one Sollenger and others, fraudulently and without consideration. Whilst the defendants were giving evidence in relation to the origin and .consideration of the checks, and the habits of dealing between them and Sollenger and others, the judge ' intimated that it was unnecessary to pursue that branch of the case further, as it was evident that Sollenger and the parties concerned with him could not recover upon the checks, and that no further testimony was required upon that point. It was shown that Sollenger, after having received the checks, transferred them to the plaintiff, and it was claimed by the latter that they were passed to him in absolute payment of a pre-existing debt of Sollenger, without notice that they were accommodation checks. The only proof offered to show that they were received and applied in payment and discharge of the debt, was a credit of their amount entered on the sales-book of the plaintiff, the day they were passed to him, but several hours after Sollenger had left. Without submitting to the jury the question, whether the checks had been received in payment and extinguishment of the Sollenger debt, the judge assumed the fact, and stated, that, in his judgment, there was but a single point in the case, and that was, whether, notwithstanding Sollenger and the others concerned with him could not recover upon the checks, the plaintiff was a holder for value from them in such a way as to entitle him to recover upon the checks; that he would reserve the point as to whether, under the evidence, the plaintiff was entitled to recover, for the consideration of the general term; and that, in the meantime, he would direct the jury to render a verdict for the plaintiff, for four hundred and eight dollars and sixteen cents (the amount of the checks and interest), subject to the opinion of the court on a case to be made and to be heard in the first instance, at the general term.” The case was taken from the jury, and heard at the general term, and judgment rendered for the plaintiff; and the questions or conclusions of law, together with a statement of the facts upon which they arose, was prepared by and under the direction of the general term, and filed with the judgment roll, for the purpose of a review in this court.

This was plainly a mistrial. The judge trying the cause directed a verdict for the plaintiff, subject to the-opinion of the court at the general term. This was really what was done. It was not a case where exceptions were taken, and, instead of going to the special term, the judge directed them to be heard in the first instance at the general term, and in the meantime suspended judgment. The defendants had taken various exceptions to the rulings of the judge, rejecting evidence offered by them; and the facts entitling the plaintiff to recover, if at all, were controverted. The defendants had the right to have the questions raised by their exceptions considered upon an application for a new trial, if the verdict was against them; and unless an uncontroverted state of facts was presented, involving only questions of law, the judge, at the trial, had no authority to direct a verdict subject to the opinion of the court at general term. The effect of the order was to deprive the defendants of an opportunity of having their exceptions considered, either at special or general term; and to have the general term and not the jury, from the evidence, find the facts upon which the questions of law arose. The general term did substantially find them in this case, and up ok such finding, came to the legal conclusion that the plaintiff was a holder of the checks for value, so as to be entitled to recover upon them, and rendered judgment in his favor.

There are but two cases where the general term can, before judgment and in the first instance, review the proceedings upon the trial. One is, when the judge trying the cause, directs the exceptions of the unsuccessful party to be heard in the first instance at the general term; the other, when there are no exceptions taken in the progress of the trial, upon any questions of evidence, and the facts upon which the questions of law arise, are uncontroverted. In the former case the general term either grants a new trial or renders final judgment. In the latter case, it renders final judgment in favor of either of the parties, who, upon the conceded state of facts, is legally entitled to it. When the general term renders judgment upon a verdict subject to the opinion of the court, for the purpose of a review here, the questions or conclusions of law, together with a concise statement of the facts upon which they arose, are to be prepared by and under the direction of the court, and are to be deemed part of the judgment roll (Code, § 333), and we may review the questions of law involved in the rendition of the judgment, in the same manner and with the like effect as if exceptions had been taken at the proper time (Code, § 265). It is not coritemplated that there is to be a finding of facts from the evidence, by the court at general term. The only statement of facts that the court is authorized to make, are those uncontroverted and conceded on the trial. It was necessary, in this case, before the question of law, whether the plaintiff was entitled to"recover, could arise, that the fact • should be ascertained and found by the jury, the only tribunal ■ competent to find it, that the checks were taken by the plaintiff, without notice of the purpose for which they were delivered to Sollenger, in absolute payment and extinguishment of the Sollenger debt. But this question was withdrawn from thé consideration of the jury, and the fact substantially found by the court, on which they predicated their conclusion bf law, that the plaintiff was a holder of the checks for value, so as to be entitled to recover. If we are, therefore, to review questions of law arising in this case, it must be, not upon a state of facts conceded on the trial,.but found from the evidence by the court. The judge trying the cause, has only authority to direct a verdict, subject to the opinion of the court at general term, and the general term to render judgment, when upon the trial, the case presents only questions of law.

I think there was a mistrial, and for that' reason the judgment should be reversed, and the case sent down for another, trial. It is true that the defendant’s counsel did not object to the disposition of the case made by the judge, who tried it; but that cannot cure .the irregularity or give vitality to an unauthorized order. Besides, we can review only questions of law arising upon facts uncontroverted or found by the jury

Judgment reversed.